EXHIBIT 8
REGISTRATION RIGHTS AGREEMENT
by and among
INFOSEEK CORPORATION
a Delaware Corporation,
DISNEY ENTERPRISES, INC.
a Delaware Corporation
and
THE ▇▇▇▇ DISNEY COMPANY
a Delaware Corporation
November 18, 1998
TABLE OF CONTENTS
Page
1. Certain Definitions............................................. 1
2. Registration.................................................... 2
2.1 Requested Registration................................. 2
2.2 Company Registration................................... 5
2.3 Expenses of Registration............................... 6
2.4 Registration Procedures................................ 6
2.5 Indemnification........................................ 10
2.6 Information by Purchaser............................... 12
2.7 Rule 144 Reporting..................................... 12
2.8 Transfer of Registration Rights........................ 13
2.9 Termination of Registration Rights..................... 13
3. Standoff Agreement.............................................. 13
4. Amendment....................................................... 14
5. Governing Law................................................... 14
6. Entire Agreement................................................ 14
7. Notices......................................................... 14
8. Remedies........................................................ 16
9. Severability.................................................... 16
10. Attorneys' Fees................................................. 16
11. Counterparts.................................................... 16
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made as of
November 18, 1998 by and among Infoseek Corporation, a Delaware corporation (the
"Company"), Disney Enterprises, Inc., a Delaware corporation ("DEI") and The
▇▇▇▇ Disney Company, a Delaware Corporation (the "TWDC"). As used herein,
"Purchaser" shall mean TWDC and any "Purchaser Controlled Corporation" as that
term is defined in that certain Governance Agreement (as defined herein).
RECITALS
WHEREAS, the Company and the Purchaser have entered into that certain
Agreement and Plan of Reorganization by and among the Company, Infoseek
Corporation, a California corporation, DEI, and Starwave Corporation, a
Washington corporation, dated June 16, 1998 (the "Reorganization Agreement")
pursuant to which, among other things, certain transactions contemplated therein
shall be completed including the receipt by Purchaser of shares of the Company;
and
WHEREAS, the Company seeks to grant certain registration rights with
respect to the securities of the Company held by the Purchaser.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the Company and the Purchasers agree as follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the
following respective meanings:
"COMMISSION" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act and the
Exchange Act (as defined herein).
"EFFECTIVE DATE" shall mean the date on which the transactions
contemplated by the Reorganization Agreement are consummated.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute and rules and regulation of the
Commission thereunder, all as the case shall be in effect all at that time.
"GOVERNANCE AGREEMENT" shall mean that certain Governance Agreement by
and among TWDC, DEI and the Company;
"REGISTRABLE SECURITIES" means shares of Common Stock of the Company
held by the Purchaser, or its transferees pursuant to Section 2.8, whether
acquired through that certain Common Stock and Warrant Purchase Agreement (the
"Purchase Agreement") by and between the
Company and TWDC of even date herewith, the Reorganization Agreement, upon
exercise of the Warrant purchased pursuant to the Purchase Agreement or
otherwise, PROVIDED, HOWEVER, such shares shall only be treated as Registrable
Securities if and so long as they have not been sold to or through a broker or
dealer or underwriter in a public distribution or a public securities
transaction and therefore are no longer "Restricted Securities" under the Act.
The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act or the Exchange Act, and the declaration or
ordering of the effectiveness of such registration statement.
"REGISTRATION EXPENSES" shall mean all expenses, except Selling
Expenses (as defined below), incurred by the Company in complying with Sections
2.1, 2.2 and 2.4 hereof, including, without limitation, all registration,
qualification listing and filing fees, underwriters' expenses other than Selling
Expenses (as defined herein), "road show" expenses, printing expenses, escrow
fees, fees and disbursements of counsel for the Company, blue sky fees and
expenses, the expense of any special audits incident to or required by any such
registration (but excluding the compensation of regular employees of the Company
which shall be paid in any event by the Company) and the reasonable fees and
disbursements of one counsel for all shareholders selling securities pursuant to
such registration.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or
any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"SELLING EXPENSES" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered by
the Purchaser and, except as set forth under "Registration Expenses", all
reasonable fees and disbursements of counsel for the Purchaser.
"SHELF REGISTRATION" shall mean a registration on Form S-3 (or any
successor thereto) or any other appropriate form pursuant to Rule 415 under the
Securities Act (or any successor rule that may be adopted by the Commission)
providing for the sale of Securities on a delayed or continuous basis.
2. REGISTRATION.
2.1 REQUESTED REGISTRATION.
(a) REQUEST FOR REGISTRATION. In case the Company shall receive
from the Purchaser a written request that the Company effect any registration,
qualification or compliance under the Securities Act or Exchange Act with
respect to a number of the shares of Registrable Securities, such that the
anticipated aggregate offering price, net of underwriting discounts and
commissions, is at least ten million dollars ($10,000,000) or, if less, all of
the Purchaser's remaining Registrable Securities, the Company will within 45
days of such request file such registration, qualification or compliance
(including, without limitation, appropriate qualification under applicable
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blue sky or other state securities laws and appropriate compliance with
applicable regulations issued under the Securities Act and/or the Exchange Act
and any other governmental requirements or regulations) in the manner reasonably
requested by the Purchaser and as would permit or facilitate the sale and
distribution of all such Registrable Securities which are specified in such
request and the Company shall thereafter use its best efforts to cause such
registration, qualification or compliance to become effective.
(b) Notwithstanding anything in this Agreement to the contrary, the
Company shall not be obligated to take any action pursuant to this Section 2.1;
(i) prior to the earlier of (A) three (3) years after the
Effective Date and (B) the termination of the Standstill Period (as defined in
the Governance Agreement) except in the case of a pro rata distribution by TWDC
to its stockholders;
(ii) during the period starting with the date thirty (30) days
prior to the Company's reasonably estimated date of filing of, and ending on the
date ninety (90) days immediately following the effective date of, any
registration statement pertaining to securities offered by the Company (other
than a registration of securities on Form S-8 (as promulgated under the
Securities Act), a registration of securities on Form S-4, a registration of
securities in a Rule 145 (as promulgated under the Securities Act) transaction,
a registration of securities with respect to an employee benefit plan, or, a
Shelf Registration (including in each case pursuant to successor forms and
rules)), provided that the Company is actively employing in good faith its best
efforts to cause such registration statement to become effective and the
managing underwriter of such offering certifies in writing that the registration
of Registrable Securities would have in its reasonable estimation a material
adverse effect on the marketability of the offering for which such registration
statement was filed;
(iii) if the Company has already effected two such registrations
pursuant to subparagraph 2.1(a);
(iv) if the Company shall furnish to the Purchaser a certificate
signed by the President of the Company stating that in the good faith judgment
of the Board of Directors, as determined by a majority vote thereof, it would be
seriously detrimental to the Company or its shareholders for a registration
statement to be filed in the near future, in which case the Company's obligation
to use best efforts to register, qualify or comply under this Section 2.1 shall
be deferred for a period not to exceed 60 days from the date of receipt of
written request from the Purchaser; provided that, the Company may not exercise
this deferral right more than once in any consecutive twelve-month period; or
(v) if the Company has effected one such registration pursuant
to Section 2.1 in the preceding year, such registration having been declared or
ordered effective and remained subject to the declaration of any Suspension
Periods (as defined in Section 2.4(e)) in compliance with Section 2.4(e)
effective until the earlier to occur of (x) 120 days, plus the number of days in
any Suspension Periods during such time, after such declaration or order of
effectiveness or
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(y) the sale of all the securities offered pursuant to each such registration
or, if such offering consists of a Shelf Registration, such registration having
been declared or ordered effective and remained effective until the earlier to
occur of (a) 360 days, plus the number of days in any Suspension Periods during
such time, or (b) the sale of all the securities offered pursuant to each such
registration.
(c) FORM OF REGISTRATION; UNDERWRITING. The Purchaser shall determine
the method of distribution of the Registrable Securities covered by its request,
whether by means of an underwritten offering or any other lawful means, and the
Purchaser shall determine the form of the registration statement to be used in
connection therewith, whether an underwritten or non-underwritten offering on
Form S-1 or Form S-3, a Shelf Registration statement on Form S-3 providing for a
delayed or continuous offering of Registrable Securities, subject to the
Company's approval such approval, such approval not to be unreasonably withheld;
provided, however, that, in any event, the Company shall allow the Purchaser to
use a delayed or continuous offering if available, or any other lawful means
(provided that the Company meets the requirements for use of such form). In the
event the registration is proposed to be part of a firm commitment underwritten
public offering, the Purchaser shall so notify the Company and the Company
shall, together with the Purchaser, enter into an underwriting agreement in
customary form with the managing underwriter selected for such underwriting,
subject to the Company's reasonable approval.
(d) A registration requested pursuant to this Section 2.1 shall not be
deemed to be effected for purposes of this Section 2.1 if it has not been
declared effective by the Commission or become effective in accordance with the
Securities Act and/or the Exchange Act and the rules and regulations thereunder
or its effectiveness has not been maintained for the applicable period required
hereunder.
(e) The Purchaser may, at any time prior to the effective date of the
Registration Statement relating to such registration, revoke such request by
providing a written notice to the Company revoking such request. In such event,
the Purchaser may, at its election, either (i) count such revoked registration
as one of the two available registrations under this Section 2.1, in which case
all Registration Expenses related thereto shall be paid by the Company, or (ii)
not count such revoked registration as one of the two available registrations
under this Section 2.1, in which case all Registration Expenses related thereto
shall be paid by the Purchaser.
(f) The Company shall not include any securities which are not
Registrable Securities in any Registration Statement filed pursuant to a demand
made under this Section 2.1 without the prior written consent of the Purchaser.
Without limitation of the foregoing, upon the Purchaser's request, the Company
shall comply with any request of the Purchaser for a registration under the
Securities Act or the Exchange Act in connection with a spin-off of Registrable
Securities to the Purchaser's stockholders.
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2.2 COMPANY REGISTRATION.
(a) NOTICE OF REGISTRATION. If at any time after three (3) years
after the Effective Date, the Company shall determine to register any of its
equity securities, either for its own account or the account of a security
holder or holders (other than the Purchaser), other than (i) a registration
relating solely to employee benefit plans, (ii) a registration relating solely
to a Rule 145 transaction, or (iii) a registration in which the only equity
security being registered is capital stock issuable upon conversion of
convertible (or exchange of exchangeable) debt securities which are also being
registered, the Company will:
(i) give to the Purchaser written notice thereof at least
twenty (20) days prior to the filing of a registration therefore; and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
made within twenty (20) days after receipt of such written notice from the
Company, by the Purchasers.
(b) UNDERWRITING. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, (i) the
Company shall so advise the Purchaser as a part of the written notice given
pursuant to Section 2.2(a)(i); (ii) the right of the Purchaser to registration
pursuant to Section 2.2 shall be conditioned upon the Purchaser's participation
in such underwriting and the inclusion of Registrable Securities in the
underwriting shall be limited to the extent provided herein; and (iii) the
Purchaser shall, together with the Company, enter into an underwriting agreement
in customary form with the managing underwriter selected for such underwriting
by the Company.
(c) MARKETING CUT-BACK. Notwithstanding any other provision of
this Section 2.2, if the managing underwriter determines that marketing factors
require a limitation of the number of shares to be underwritten, the managing
underwriter may limit the Registrable Securities to be included in such
registration to the extent such managing underwriter deems reasonably necessary.
The Company shall so advise the Purchaser of the number of shares of Registrable
Securities that may be included in the registration and underwriting. To
facilitate the allocation of shares in accordance with the above provisions, the
Company may round the number of shares allocated to the Purchaser to the nearest
100 shares. The foregoing notwithstanding, the Purchaser's right to participate
in the underwritten offering shall have priority over all other parties
exercising registration rights in connection with such offering other than the
Company.
(d) RIGHT TO WITHDRAW FROM REGISTRATION. If the Purchaser
disapproves of the terms of any such underwriting, the Purchaser may elect to
withdraw therefrom by written notice to the Company and the managing
underwriter. Any securities excluded or withdrawn from such underwriting shall
be withdrawn from such registration.
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(e) RIGHT TO TERMINATE REGISTRATION. The Company shall have the
right to terminate or withdraw any registration initiated by it under this
Section 2.2 prior to the effectiveness of such registration whether or not the
Purchaser has elected to include securities in such registration.
(f) COMPANY REGISTRATION NOT DEMAND. A request by the Purchaser
to include Registrable Securities in a proposed offering pursuant to this
Section 2.2 will not be deemed to be a request for a demand registration
pursuant to Section 2.1.
2.3 EXPENSES OF REGISTRATION.
(a) The Registration Expenses incurred in connection with (i) two
(2) registrations pursuant to Section 2.1, and (ii) all registrations pursuant
to Section 2.2 shall be borne by the Company.
(b) Unless otherwise stated, all Selling Expenses relating to
securities registered on behalf of the Purchaser shall be borne by the
Purchaser.
2.4 REGISTRATION PROCEDURES. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Agreement,
the Company will keep the Purchaser advised in writing as to the initiation of
each registration, qualification and compliance and as to the completion
thereof, and will:
(a) prepare and file with the Commission a Registration Statement
with respect to such Registrable Securities on a form, for which the Company
then qualifies, selected pursuant to Section 2.1(c) and use its best efforts to
cause such Registration Statement to become and remain effective;
(b) prepare and file with the Commission amendments and post-
effective amendments to such Registration Statement and such amendments to the
prospectus used in connection therewith as may be necessary to maintain the
effectiveness of such registration or as may be required by the rules,
regulations or instructions applicable to the registration form utilized by the
Company or by the Securities Act or the Exchange Act or the rules and
regulations thereunder necessary to keep such Registration Statement effective
for up to one hundred twenty (120) calendar days or three hundred sixty (360)
calendar days, in the case of a Shelf Registration, and cause the prospectus as
so supplemented to be filed pursuant to Rule 424 under the Securities Act, and
to otherwise comply with the provisions of the Securities Act and/or the
Exchange Act with respect to the disposition of all Registrable Securities
covered by such Registration Statement until the earlier of (i) such 120th or
360th calendar day, as the case may be, and (ii) such time as all Registrable
Securities covered by such Registration Statement have ceased to be Registrable
Securities; provided that a reasonable time before filing a Registration
Statement or prospectus, or any amendments or supplements thereto, the Company
will furnish to Purchaser, the managing underwriter and their respective counsel
for review and comment, copies of all documents proposed to be filed and will
not file any such documents to which any of them reasonably object prior to the
filing thereof;
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(c) furnish to Purchaser such number of copies of such Registration
Statement and of each amendment and post-effective amendment thereto (in each
case including all exhibits), any prospectus or prospectus supplement and such
other documents as Purchaser may reasonably request in order to facilitate the
disposition of the Registrable Securities by Purchaser (the Company hereby
consenting to the use of the prospectus or any amendment or supplement thereto
in connection with such disposition);
(d) use commercially reasonable efforts to register or qualify such
Registrable Securities covered by such Registration Statement under such other
securities or blue sky laws of such jurisdictions as Purchaser reasonably
requests, and do any and all other acts and things which may be reasonably
necessary or advisable to enable Purchaser to consummate the disposition in such
jurisdictions of the Registrable Securities owned by Purchaser, except that the
Company will not for any such purpose be required to qualify generally to do
business as a foreign corporation, to subject itself to taxation or to consent
to general service of process in any such jurisdiction where, but for the
requirements of this paragraph, it would not be obligated to be so qualified or
to be so subject to taxation or to general service of process;
(e) notify Purchaser at any time (a "Suspension Period") when a
prospectus relating to any such Registrable Securities is required to be
delivered under the Securities Act and the Company has become aware that the
prospectus included in such Registration Statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing, and prepare and furnish
to Purchaser a reasonable number of copies of an amendment to such Registration
Statement or related prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing; provided
that, the Company may not initiate Suspension Periods consisting of in excess of
ninety (90) days in the aggregate and the time during which such Registration
Statement shall remain effective pursuant to Section 2.4(b) will be extended by
the number of days that Purchaser is prevented from selling because it is unable
to deliver a prospectus.
(f) notify Purchaser at any time,
(i) when the prospectus or any prospectus supplement or post-
effective amendment has been filed, and, with respect to the Registration
Statement or any post-effective amendment, when the same has become effective;
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the prospectus or for additional
information;
(iii) of the issuance by the Commission of any stop order of
which the Company or its counsel is aware or should be aware suspending the
effectiveness of the
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Registration Statement or any order preventing the use of a related prospectus,
or the initiation or any threats of any proceedings for such purposes; and
(iv) of the receipt by the Company of any written notification
of the suspension of the qualification of any of the Registrable Securities for
sale in any jurisdiction of the initiation or any threats of any proceeding for
that purpose;
(g) otherwise use commercially reasonable efforts to comply with all
applicable rules and regulations of the Commission, and make available to
Purchaser an earnings statement which shall satisfy the provisions of Section
11(a) of the Securities Act, provided that the Company will be deemed to have
complied with this Section 2.4(g) if it has satisfied the provisions of Rule 158
under the Securities Act;
(h) use commercially reasonable efforts to cause all such Registrable
Securities to be listed on any securities exchange or automated quotation system
on which the Company Common Stock is then listed, if such Registrable Securities
are not already so listed and if such listing is then permitted under the rules
of such exchange or automated quotation system, and to provide a transfer agent
and registrar for such Registrable Securities covered by such Registration
Statement no later than the effective date of such Registration Statement;
(i) enter into agreements (including underwriting agreements) and
take all other appropriate and reasonable actions in order to expedite or
facilitate the disposition of such Registrable Securities and in such
connection, whether or not an underwriting agreement is entered into and whether
or not the registration is an underwritten registration:
(i) make such representations and warranties to Purchaser and
the underwriters, if any, in form, substance and scope as are customarily made
by issuers to underwriters in comparable underwritten offerings;
(ii) use commercially reasonable efforts to obtain opinions of
counsel to the Company thereof (which counsel and opinions (in form, scope and
substance) will be reasonably satisfactory to the managing underwriters, if any,
and Purchaser) addressed to Purchaser and the underwriters, if any, covering the
matters customarily covered in opinions requested in comparable underwritten
offerings and such other matters as may be reasonably requested by Purchaser and
the managing underwriter, if any;
(iii) use commercially reasonable efforts to obtain "cold
comfort" letters and bring-downs thereof from the Company's independent
certified public accountants addressed to Purchaser and the underwriters, if
any, such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters by independent accountants in
connection with underwritten offerings;
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(iv) if requested, provide indemnification in accordance with the
provisions and procedures of Section 2.5 to all parties to be indemnified
pursuant to said section; and
(v) deliver such documents and certificates as may be reasonably
requested by Purchaser and the managing underwriters, if any, to evidence
compliance with any customary conditions contained in the underwriting agreement
or other agreement entered into by the Company.
(j) cooperate with Purchaser and the managing underwriter or
underwriters or agents, if any, to facilitate, to the extent reasonable under
the circumstances, the timely preparation and delivery of certificates (not
bearing any restrictive legends) representing the Registrable Securities to be
sold under such Registration Statement, and enable such Registrable Securities
to be in such denominations and registered in such names as the managing
underwriter or underwriters or agents, if any, or Purchaser may request;
(k) if reasonably requested by the managing underwriter or
underwriters or Purchaser, incorporate in a prospectus supplement or post-
effective amendment such information as the managing underwriters and Purchaser
agree should be included therein relating to the plan of distribution with
respect to such Registrable Securities, including without limitation information
with respect to the purchase price being paid by such underwriters and with
respect to any other terms of the underwritten offering of the Registrable
Securities to be sold in such offering and make all required filings of such
prospectus supplement or post-effective amendment as promptly as practicable
upon being notified of the matters to be incorporated in such prospectus
supplement or post-effective amendment;
(l) provide Purchaser, any underwriter participating in any
disposition pursuant to such Registration Statement and any attorney, accountant
or other agent retained by Purchaser or underwriter (collectively, the
"Inspectors") reasonable access to appropriate officers of the Company and the
Company's subsidiaries to ask questions and to obtain information reasonably
requested by any such Inspector and make available for inspection all financial
and other records and other information, pertinent corporate documents and
properties of any of the Company and its subsidiaries and affiliates
(collectively, the "Records") as may be reasonably necessary to enable them to
exercise their due diligence responsibilities;
(m) in the event of the issuance of any stop order of which the
Company or its counsel is aware or should be aware suspending the effectiveness
of the Registration Statement or of any order suspending or preventing the use
of any related prospectus or suspending the qualification of any Registrable
Securities included in the Registration Statement for sale in any jurisdiction,
the Company will use its best efforts promptly to obtain its withdrawal; and the
period for which the Registration Statement will be kept effective will be
extended by a number of days equal to the number of days between the issuance
and withdrawal of any stop orders; and
(n) reasonably cooperate to make available members of senior
management of the Company to participate in any meetings and conferences or
"road shows" with
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potential purchasers of the Registrable Securities as the underwriters (if any)
or the Purchaser may reasonably request, the parties recognizing that the
regular responsibilities of such managers will take priority over any such
activities.
2.5 INDEMNIFICATION.
(a) The Company will indemnify and hold harmless the Purchaser,
each of its officers, directors and partners, and each person controlling the
Purchaser within the meaning of Section 15 of the Securities Act, with respect
to which registration, qualification or compliance has been effected pursuant to
this Agreement, and each underwriter, if any, and each person who controls any
underwriter within the meaning of Section 15 of the Securities Act, against all
expenses, claims, losses, damages and liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
litigation, (commenced or threatened), arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such registration,
qualification or compliance, or based on any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, and will reimburse the Purchaser, each of its officers,
directors, and partners, and each person controlling the Purchaser, each such
underwriter and each person who controls any such underwriter, for any legal and
any other expenses reasonably incurred, as such expenses are incurred, in
connection with investigating, preparing or defending any such claim, loss,
damage, liability or action, provided that the Company will not be liable in any
such case to the extent that any such claim, loss, damage, liability or expense
arises out of or is based on any untrue statement or omission or alleged untrue
statement or omission, made in reliance upon and in conformity with written
information furnished to the Company by the Purchaser, controlling person or
underwriter specifically for use therein; provided, however, that the foregoing
indemnity agreement is subject to the condition that, insofar as it relates to
any such untrue statement, alleged untrue statement, omission or alleged
omission made in a preliminary prospectus on file with the Commission at the
time the registration statement becomes effective or the amended prospectus
filed with the Commission pursuant to Rule 424(b), such indemnity agreement
shall not inure to the benefit of: (1) the Purchaser to the extent that such
untrue statement, alleged untrue statement, omission or alleged omission is made
in reliance upon and in conformity with written information furnished to the
Company by an instrument duly executed by the Purchaser and stated to be
specifically for use therein; or (2) any underwriter, to the extent that such
untrue statement, alleged untrue statement, omission or alleged omission is made
in reliance on and in conformity with written information furnished to the
Company by an instrument duly executed by such underwriter and stated to be
specifically for use therein.
(b) The Purchaser will indemnify and hold harmless the Company, each
of its directors and officers, each underwriter, if any, of the Company's
securities covered by such a registration statement, each person who controls
the Company or such underwriter within the meaning of Section 15 of the
Securities Act, each of its officers, directors, and partners, and each person
controlling the Purchaser within the meaning of Section 15 of the Securities
Act, against all expenses, claims, losses, damages and liabilities (or actions
in respect thereof), including any of the
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foregoing incurred in settlement of any litigation (commenced or threatened),
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any such registration statement, prospectus,
offering circular or other document, or any amendment or supplement thereto,
incident to such registration, qualification or compliance, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and will reimburse the Company, the
Purchaser, such directors, officers, persons, underwriters or control persons
for any legal and any other expenses reasonably incurred, as such expenses are
incurred, in connection with investigating or defending any such claim, loss,
damage, liability or action, in each case to the extent, but only to the extent,
that such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by the Purchaser specifically for use therein.
Notwithstanding the foregoing, the liability of the Purchaser under this
subsection 2.6(b) shall be limited in an amount equal to the gross proceeds
received by the Purchaser from the sale of shares in such registration.
(c) Each party entitled to indemnification under this Section 2.6 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Agreement, except to the extent the failure to give
such notice is prejudicial to an Indemnifying Party's ability to defend such
action, and provided further that an Indemnified Party shall have the right to
retain its own counsel, with the fees and expenses to be paid by the
Indemnifying Party, if representation of such Indemnified Party by the counsel
retained by the Indemnifying Party would be inappropriate due to actual or
potential differing interests between such Indemnified Party and any other party
represented by such counsel in such proceeding. No Indemnifying Party, in the
defense of any such claim or litigation, shall, except with the consent of each
Indemnified Party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release from all liability
in respect to such claim or litigation.
(d) If the indemnification provided for in this Section 2.6 is held by
a court of competent jurisdiction to be unavailable to an Indemnified Party with
respect to any losses, claims, damages or liabilities referred to herein, the
Indemnifying Party, in lieu of indemnifying such Indemnified Party thereunder,
shall to the extent permitted by applicable law contribute to the amount paid or
payable by such Indemnified Party as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect the relative fault of
the Indemnifying Party on the one hand and of the Indemnified Party on the other
in connection with the violation(s) that resulted in such loss, claim, damage or
liability, as well as any other relevant equitable considerations. The
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relative fault of the Indemnifying Party and of the Indemnified Party shall be
determined by a court of law by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the Indemnifying Party or by
the Indemnified Party and the parties' relative intent, knowledge, access to
information and opportunity to prevent such statement or omission; provided,
that in no event shall any contribution by the Purchaser hereunder exceed the
proceeds from the offering received by the Purchaser.
(e) The obligations of the Company and the Purchaser under this
Section 2.6 shall survive completion of any offering of Registrable Securities
in a registration statement and the termination of this Agreement. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect to such claim or litigation;
provided, that no Indemnified Party shall consent to entry of any judgment or
enter into any settlement without the consent of Indemnifying Party.
(f) The provisions of this Section 2.5 will be in addition to any
liability which any Indemnifying Party may have to any Indemnified Party and
will survive the termination of this Agreement.
2.6 INFORMATION BY PURCHASER. The Purchaser, if included in any
registration, shall furnish to the Company such information regarding the
Purchaser, the Registrable Securities held by it and the distribution proposed
by the Purchaser as the Company may request in writing and as shall be required
in connection with any registration, qualification or compliance referred to in
this Agreement.
2.7 RULE 144 REPORTING. With a view to making available the benefits
of certain rules and regulations of the Commission which may at any time permit
the sale of the Restricted Securities to the public without registration, the
Company agrees to use commercially reasonable efforts after the Effective Date
to:
(a) Make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act, pursuant to the
reporting requirements of the Securities Act or the Exchange Act;
(b) File with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act; and
(c) So long as the Purchaser owns any Registrable Securities, to
furnish to the Purchaser forthwith upon request a written statement by the
Company as to its compliance with the reporting requirements of said Rule 144
and of the Securities Act and the Exchange Act, a copy of the most recent annual
or quarterly report of the Company, and such other reports and documents of the
Company and other information in the possession of or reasonably obtainable by
the Company
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as the Purchaser may reasonably request in availing itself of any rule or
regulation of the Commission allowing the Purchaser to sell any such securities
without registration.
2.8 TRANSFER OF REGISTRATION RIGHTS. The rights to cause the Company
to register securities granted to the Purchaser under Sections 2.1, 2.2 and 2.4
may not be transferred or assigned (in each case, by operation of law or
---
otherwise) to any transferee or assignee in connection with any transfer or
assignment of Registrable Securities by the Purchaser who is not a Purchaser
Controlled Corporation (as such term is defined in that certain Governance
Agreement by and among TWDC, DEI and the Company, of even date herewith).
2.9 TERMINATION OF REGISTRATION RIGHTS. The rights granted pursuant
to this Agreement shall terminate at such time as the Company has registered all
of the Purchaser's shares of Common Stock under the Securities Act, or the
Purchaser owns less than one percent (1%) of the outstanding Common Stock of the
Company.
2.10 SUBSEQUENT REGISTRATION RIGHTS. After the date of this
Agreement, the Company shall not, without the prior written consent of the
Purchaser, enter into any agreement with any holder or prospective holder of any
securities of the Company that would grant such holder registration rights
senior to those granted to the Purchaser hereunder.
3. STANDOFF AGREEMENT. In connection with any public offering of the
Company's Common Stock in connection with an effective registration statement
under the Securities Act, with respect to any shares of Common Stock owned by it
which are not being registered in the offering, the Purchaser agrees, upon the
request of the Company or the underwriters managing any under written offering
of the Company's securities, not to (1) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, or otherwise transfer or
dispose of, directly or indirectly, any shares of Common Stock of the Company or
any securities convertible into or exercisable or exchangeable for Common Stock
of the Company (whether such shares or any such securities are now owned by the
Purchaser or are hereafter acquired) in any public offering; provided that in
any such transaction not involving a public offering, Parent will effect such
transaction at such times and in such manner consistent with the price, market
conditions and with preserving an orderly trading market for the Company's
securities and such that no public short position in the Company's securities
will be created thereby, or (2) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of
ownership of the Common Stock of the Company, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of Common
Stock or such other securities, in cash or otherwise (other than those included
in the registration) without the prior written consent of the Company or such
underwriters, as the case may be, for such period of time, not to exceed ninety
(90) days (or such lesser period as officers or directors of the Company are so
restricted with respect to the transfer of shares of capital stock of the
Company held by them) after the effective date of the registration statement
relating thereto. The Purchaser further agrees that during any Suspension Period
(as defined in Section 2.4(e)), the Purchaser will not sell any Registrable
Securities pursuant to the Registration Statement until (i) such Purchaser is
advised in writing by the Company that the use of the applicable prospectus may
be resumed, (ii) the Purchaser
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has received copies of any additional, supplemental or amended prospectus, if
applicable, and (iii) the Purchaser has received copies of any additional or
supplemental filings which are incorporated or deemed to be incorporated by
reference in such prospectus. The Purchaser agrees that the Company may instruct
its transfer agent to place stop-transfer notations in its records to enforce
the provisions of this Section 3.
4. AMENDMENT. Any provision of this Agreement may be amended or the
observance thereof may be waived (either generally or in a particular instance
and either retroactively or prospectively), only with the written consent of
the Company and the Purchaser.
5. GOVERNING LAW. This Agreement and the legal relations between the
parties arising hereunder shall be governed by and interpreted in accordance
with the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California.
6. ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement between the parties regarding the matters set forth
herein. Except as otherwise expressly provided herein, the provisions hereof
shall inure to the benefit of, and be binding upon the successors, assigns,
heirs, executors and administrators of the parties hereto.
7. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or by a recognized
commercial overnight delivery service, or mailed by registered or certified mail
(return receipt requested) or sent via facsimile (with acknowledgment of
complete transmission) to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
if to the Purchaser, to: The ▇▇▇▇ Disney Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: The ▇▇▇▇ Disney Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to: O'Melveny & ▇▇▇▇▇ LLP
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: C. ▇▇▇▇▇ ▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Company, to: Infoseek Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇,
Professional Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
8. REMEDIES. The Purchaser and the Company agree that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach
by it of the provisions of this Agreement and each hereby agrees to waive the
defense in any action for specific performance that a remedy at law would be
adequate. Accordingly, it is agreed that the Company or the Purchaser, as the
case may be, shall be entitled to an injunction, restraining order or other
equitable relief to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any court of competent
jurisdiction in the United States or any state thereof. Such remedies shall be
cumulative and non-exclusive and shall be in addition to any other rights and
remedies the parties may have under the Agreement.
9. SEVERABILITY. If the event that any provision of this Agreement or
the application thereof, becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this
Agreement will continue in full force and effect and the application of such
provision to other persons or circumstances will be interpreted so as reasonably
to effect the intent of the parties hereto. The parties further agree to
replace such void or
-15-
unenforceable provision of this Agreement with a valid and enforceable provision
that will achieve, to the extent possible, the economic, business and other
purposes of such void or unenforceable provision.
10. ATTORNEYS' FEES. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
11. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
12. THIRD PARTY BENEFICIARIES. There shall be no third party
beneficiaries to this Agreement except that any Purchaser Controlled Corporation
that owns any Registrable Securities shall be entitled to exercise the rights of
Purchaser hereunder.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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The foregoing agreement is hereby executed as of the date first above written.
"COMPANY"
INFOSEEK CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
President and Chief Executive Officer
"TWDC"
THE ▇▇▇▇ DISNEY CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President
"DEI"
DISNEY ENTERPRISES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President
[REGISTRATION RIGHTS AGREEMENT]
