1
EXHIBIT 4.4
SHAREHOLDER RIGHTS AGREEMENT
This Shareholder Rights Agreement (the "Agreement") is made on October 28,
1999, by NewsReal, Inc., a Delaware corporation (the "Company"), and the
investors whose names and addresses appear on Schedule I hereto (the "Private
Placement Investors").
RECITALS
A. The Company has offered to sell US$5,000,000 of common stock, par value
$.001 per share, of the Company ("Common Stock") at $5.88 per share (the
"Purchase Price") in a private placement offering to offshore and U.S.
institutional investors (the "Private Placement Financing").
B. The per share Purchase Price was calculated based on a PRE-FINANCING
VALUATION OF THE COMPANY OF $45,000,000 and 7,657,898 shares of outstanding and
issuable Company common stock, including 5,470,638 issued and outstanding shares
of the Company's Common Stock and 2,187,260 shares issuable upon exercise of
certain time-based employee stock options granted by the Company and warrants
granted to consultants to the Company with an exercise price less than the
Purchase Price, and excluding shares issuable upon vesting of certain
performance-based options, conversion of Company indebtedness and additional
options that will be issued in the future with an exercise price equal to or in
excess of the Purchase Price.
C. The Private Placement Investors have subscribed to purchase up to
approximately 850,350 shares of Common Stock (the "Purchased Shares") in the
aggregate, pursuant to subscription agreements signed by the Private Placement
Investors (each, a "Subscription Agreement" and collectively, the "Subscription
Agreements").
D. The Company desires to extend various rights to the Private Placement
Investors pursuant to this Agreement including incidental registration rights,
ANTI-DILUTION PROTECTION IN THE EVENT CERTAIN PERFORMANCE BASED OPTIONS ARE
EXERCISED AND UPON THE CONVERSION OF CERTAIN INDEBTEDNESS of the Company and the
right to appoint a member of the Company's Board of Directors. The Company also
desires to impose certain transfer restrictions and other obligations on the
Private Placement Investors as set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, the parties hereto agree as follows:
1. COVENANTS OF THE PARTIES.
1.1 Legends. Until such time as the provisions of this Agreement
shall terminate, the certificates evidencing the Purchased Shares will bear the
following legend reflecting the restrictions on the transfer of such securities
subject to this Agreement, in addition to any legend required under the terms of
the Subscription Agreements for the Purchased Shares:
NewsReal - Shareholder Rights Agreement
2
"The securities evidenced hereby are subject to the terms of that
certain Shareholder Rights Agreement, dated October 28, 1999, by the
Company and certain investors identified therein, including certain
restrictions on transfer. A copy of this Agreement has been filed with
the Secretary of the Company and is available upon request."
1.2 Financial and Business Information. From and after the date
hereof, the Company shall deliver to each Private Placement Investor for so long
as they beneficially own the Purchased Shares:
(a) Quarterly Statements - as soon as practicable, and in any
event within 30 days after the close of each of the first three fiscal quarters
of each fiscal year of the Company, a consolidated balance sheet, statement of
income and statement of cash flows of the Company and its subsidiaries as at the
close of such quarter and covering operations for such quarter and the portion
of the Company's fiscal year ending on the last day of such quarter, prepared in
accordance with generally accepted accounting principles ("GAAP"), subject to
audit and year-end adjustments, setting forth in each case in comparative form
the figures for the comparable period of the previous fiscal year.
(b) Annual Statements - as soon as practicable after the end of
each fiscal year of the Company, and in any event within 90 days thereafter,
duplicate copies of:
(i) consolidated and consolidating balance sheets of the Company
and its subsidiaries at the end of such year; and
(ii) consolidated and consolidating statements of income,
stockholders' equity and cash flows of the Company and its
subsidiaries for such year, setting forth in each case in
comparative form the figures for the previous fiscal year,
accompanied by an opinion thereon of independent certified public
accountants of recognized national standing selected by the
Company, which opinion shall state that such financial statements
fairly present the financial position of the Company and any
subsidiaries on a consolidated basis and have been prepared in
accordance with GAAP (except for changes in application in which
such accountants concur) and that the examination of such
accountants in connection with such financial statements has been
made in accordance with generally accepted auditing standards,
and accordingly included such tests of the accounting records and
such other auditing procedures as were considered necessary in
the circumstances.
1.3 Election of Director. Upon the sale of at least Three Million
Dollars ($3,000,000) of Shares in the Private Placement Financing and for the
period until the later of (i) twelve months from the date of this Agreement or
(ii) the date on which the Company completes the IPO (as defined in Section 2.6
hereof), and so long as the Private Placement Investors hold at least 5% of the
outstanding Common Stock on a fully diluted basis assuming the exercise of all
outstanding options and warrants (and including shares issued to the Private
Placement Investors pursuant to the antidilution protections in Section 4.2 and
4.3 of this
NewsReal - Shareholder Rights Agreement
-2-
3
Agreement), the Private Placement Investors shall have the right to designate
Xxxx XxXxxxx of Millenium Financial Group, Inc. (the "Placement Agent") to serve
as a voting member of the Company's Board of Directors. At such time as Xxxx
XxXxxxx is no longer employed by the Placement Agent, the rights granted under
this Section 1.3 shall terminate.
1.4 Use of Proceeds. The Company agrees that $3,000,000 of the net
proceeds of the Private Placement Financing, after payment of reasonable
expenses of the Private Placement Financing including fees payable to the
Placement Agent, will be used by the Company for marketing, other operating
expenses, working capital needs and general corporate purposes, and not for
repayment of any of the QIP Indebtedness (as defined in Section 4.1(c)).
2. TRANSFERS OF STOCK
2.1. Right to Transfer. Except (i) in accordance with Section 2.3 of
this Agreement and (ii) in accordance with and to the extent permitted in the
Subscription Agreements for the Purchased Shares, no Private Placement Investor
shall have the right to Transfer the Purchased Shares in a single transaction or
any series of related transactions. For purposes of this Agreement, a "Transfer"
shall mean any direct or indirect sale, gift, assignment or other disposition or
transfer of shares of Common Stock, or any interest therein, and any pledge or
hypothecation of shares of Common Stock, or any interest therein.
Notwithstanding anything herein to the contrary, nothing in this Agreement shall
preclude or prevent any Transfer: (i) to the Company; (ii) to any Affiliate (as
defined in Rule 12b-2 of the Securities Exchange Act of 1934, as amended from
time to time) of the Private Placement Investor; or (iii) which may be required
by law or by a regulatory authority.
2.2 Drag-Along Rights. (a) If at any time and from time to time the
Company or the investors listed on Schedule II hereto (the "QIP Investors")
determine, in accordance with, and pursuant to, the provisions of Section 7(b)
of the Securities Purchase Agreement dated December 11, 1997 between the Company
and the QIP Investors, to sell the Company to a third party that is not an
affiliate the QIP Investors (the "Proposed Transferee"), the Company, upon the
request of the QIP Investors, shall have the right ("Drag-Along Right") to
require the Private Placement Investors to sell to the Proposed Transferee all
shares of Common Stock then owned by the Private Placement Investors, upon the
same terms and conditions and concurrently with the sale by the QIP Investors of
their securities in the Company; provided, however, that no Private Placement
Investor shall be required to sell at a purchase price less than $6.00 per
share of Common Stock. Each Private Placement Investor agrees to take all steps
necessary to enable it to comply with the provisions of this Section 2.2, to
facilitate the exercise of the Drag-Along Right.
(b) To exercise a Drag-Along Right, the QIP Investors or the
Company shall give the Private Placement Investors a written notice (a
"Drag-Along Notice") containing (a) the name and address of the Proposed
Transferee and (b) the proposed purchase price, terms of payment and other
material terms and conditions of the Proposed Transferee's offer. The Private
Placement Investors shall thereafter be obligated to sell the shares of Common
Stock held by them subject to such Drag-Along Notice.
NewsReal - Shareholder Rights Agreement
-3-
4
(c) If the QIP Investors determine to exercise their rights, in
accordance with Section 2.2 hereof, to require the Private Placement Investors
to sell all shares of Common Stock then owned by the Private Placement
Investors, then the QIP Investors in their sole discretion have the right to
determine that a sale of all or substantially all of the assets of the Company,
a voluntary liquidation of the Company or a merger of the Company (each a "sale
of the Company") is preferable to a sale of all of the capital stock of the
Company, whereupon the Company or the QIP Investors shall give written notice to
the Private Placement Investors of the QIP Investors' determination to cause a
sale of the Company (a "Sale Notice"). Upon receipt of such Sale Notice, each
Private Placement Investor agrees to use its good faith efforts to cooperate
with the QIP Investors in effecting a sale of the Company, including, without
limitation, voting shares of capital stock of the Company beneficially owned by
the Investor in favor of or granting written consent to a sale of the Company.
(d) The Company and the Private Placement Investors agree that
the QIP Investors shall have third party beneficiary rights to enforce this
Section 2.2 of this Agreement against the Company and the Private Placement
Investors.
2.3. Certain Conditions to Stock Issuances and Transfers. No Transfer
of the Purchased Shares owned by the Private Placement Investors shall be valid
or recorded in the Company's stock transfer books unless the transferees of such
Purchased Shares shall have furnished to the Company (a) the written agreement
of the transferee to be bound by the terms and conditions of this Agreement (as
if such transferee were a party hereto), (b) if required by the Company's Board
of Directors, a written opinion of counsel (which opinion shall be reasonably
satisfactory to the Company) that the proposed Transfer may be effected without
registration under the Securities Act, and (c) a written agreement to the effect
that the transferee is acquiring such Purchased Shares for its own account, for
investment, and not with a view to, or for sale in connection with, the
distribution thereof, and such transferee understands that such Purchased Shares
have not been registered under the Securities Act and that such Purchased Shares
must be held indefinitely unless a subsequent disposition thereof is registered
under the Securities Act or exempt from the registration requirements thereof,
or other agreements required by applicable securities laws and otherwise
acceptable to the Company.
2.4. Representations and Warranties. Each party hereto represents and
warrants to each other party solely as to such party:
(a) if such party is not an individual or a corporation, it is a
validly existing partnership or limited liability company or other entity as
indicated on the signature page of this Agreement.
(b) if such party is not an individual, the execution, delivery
and performance by such party of this Agreement has been duly authorized.
(c) if such party is an individual, he has full power and
authority to enter into this Agreement.
(d) if such party is a corporation, it is validly existing and
in good standing in the jurisdiction in which it is incorporated.
NewsReal - Shareholder Rights Agreement
-4-
5
(e) the agreements set forth in this Agreement constitute valid
and binding obligations of such party.
(f) the execution, delivery and performance of this Agreement by
such party will not (i) violate any provision of law, any order of any court or
other agency of government applicable to the Investor, any provision of any
note, bond, mortgage, indenture, license, lease, contract, agreement or other
instrument or obligation to which such party or its properties or assets are
bound, or the organizational documents of such party or (ii) conflict with,
result in a breach of or constitute (with due notice or lapse of time or both) a
default under any such note, bond, mortgage, indenture, license, lease,
contract, agreement or other instrument or obligation, or result in the creation
or imposition of any lien, charge, restriction, claim or encumbrance of any
nature upon any of the securities of the Company owned by such party.
2.5. Injunctive Relief. The parties hereto hereby declare that it is
impossible to measure in money the damages which will accrue to the parties
hereto by reason of the failure of any party hereto to perform any of its
obligations set forth in this Section 2. Therefore, the parties hereto shall
have the right to specific performance of such obligations, and if any party
hereto shall institute any action or proceeding to enforce the provisions
hereof, the parties hereto hereby waive the claim or defense that the party
instituting such action or proceeding has an adequate remedy at law. Such
remedies shall, however, be cumulative and not exclusive and shall be in
addition to any other remedies which any party may have under this Agreement or
otherwise.
2.6. Termination. The provisions of Section 2 shall terminate upon the
closing of, and shall not apply to the Transfer of any Purchased Shares pursuant
to, an initial public offering of the Common Stock, or any security issued in
exchange for or as replacement of the Common Stock pursuant to a registration
under the Securities Act (the "IPO").
3. REGISTRATION RIGHTS.
3.1. Definitions.
As used in this Section 3:
(a) the terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act (and any post-effective amendments filed or
required to be filed) and the declaration or ordering of effectiveness of such
registration statement;
(b) the term "Registrable Securities" means (i) the Purchased Shares
owned by the Private Placement Investors, (ii) any additional shares of Common
Stock acquired by the Private Placement Investors and (iii) any capital stock of
the Company issued as a dividend or other distribution with respect to, or in
exchange for or in replacement of, the shares of Common Stock referred to in
clause (i) or (ii);
NewsReal - Shareholder Rights Agreement
-5-
6
(c) the term "Other Shareholders" shall mean any other shareholders
of the Company who are granted registration rights that would affect the rights
granted to the Private Placement Investor under this Agreement;
(d) "Registration Expenses" shall mean all expenses incurred by the
Company in compliance with Section 3 hereof, including, without limitation, all
registration and filing fees, listing fees, printing expenses, fees and
disbursements of counsel for the Company, fees and expenses of one counsel for
all the Private Placement Investors and Other Shareholders, blue sky fees and
expenses and 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);
(e) "Selling Expenses" shall mean all underwriting discounts and
selling commissions applicable to the sale of Registrable Securities;
(f) "Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar law then in force; and
(g) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar law then in force.
3.2. Company Registration.
(a) If the Company shall determine to register any of its equity
securities, other than a registration relating solely to the registration of
shares underlying options granted pursuant to employee stock option and benefit
plans utilizing Form S-8, or a registration of shares issued in a
reclassification, merger, consolidation or transfer of assets transaction
utilizing Form S-4, or any registration form which does not permit secondary
sales, the Company will:
(i) promptly give to the Private Placement Investors a written notice
thereof (which shall include a list of the jurisdictions in which the
Company intends to attempt to qualify such securities under the
applicable blue sky or other state securities laws); 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
or requests, made by the Private Placement Investors within fifteen
days after receipt of the written notice from the Company described in
clause (i) above, except as set forth in Section 3.2(b) below. Such
written request may specify all or a part of the Private Placement
Investor's Registrable Securities.
(b) If the registration pursuant to this Section 3.2 involves an
underwritten offering of the securities being registered, whether or not for
sale for the account of the Company, to be distributed on a firm commitment
basis by or through one or more underwriters of recognized national or regional
standing under underwriting terms appropriate for such a transaction, the
Company shall so advise each of the Private Placement Investors as a part of the
written notice given pursuant to Section 3.2(a)(i). In such event, the right of
each of the Private
NewsReal - Shareholder Rights Agreement
-6-
7
Placement Investors to registration pursuant to this Section 3.2 shall be
conditioned upon such Private Placement Investor's participation in such
underwriting and the inclusion of such Private Placement Investor's Registrable
Securities in the underwriting to the extent provided herein. The Private
Placement Investors whose shares are to be included in such registration shall
(together with the Company and the Other Shareholders distributing their
securities through such underwriting) enter into an underwriting agreement in
customary form with the representative of the underwriter or underwriters
selected for underwriting by the Company. Notwithstanding any other provision of
this Section 3.2, if the representative determines in good faith that marketing
factors require a limitation on the number of shares to be underwritten, the
Company shall so advise all holders of securities requesting registration, and
the number of shares of securities that are entitled to be included in the
registration and underwriting shall be allocated in the following manner: the
number of securities that may be included in the registration and underwriting
by each of the Private Placement Investors and the Other Shareholders shall be
reduced, on a pro rata basis (based on the number of shares held by such
holder), by such minimum number of shares as is necessary to comply with such
limitation. If any of the Private Placement Investors or any Other Shareholders
disapproves of the terms of any such underwriting, such person may elect to
withdraw therefrom by written notice to the Company and the underwriter. Any
Registrable Securities or other securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
3.3. Expenses of Registration.
All Registration Expenses incurred in connection with any
registration, qualification or compliance pursuant to this Agreement shall be
borne by the Company, and all Selling Expenses shall be borne by the Private
Placement Investors whose Registrable Securities are so registered pro rata on
the basis of the number of their shares so registered; provided, however, that
the Company shall not be required to pay any Registration Expenses if, as a
result of the withdrawal of a request for registration by any of the Private
Placement Investors, the registration statement does not become effective, in
which case each of the Private Placement Investors and Other Shareholders
requesting registration, including such holder(s) so withdrawing, shall bear
such Registration Expenses pro rata on the basis of the number of their shares
so included in the registration request.
3.4. Registration Procedures.
In the case of each registration effected by the Company pursuant to
this Agreement, the Company will keep the Private Placement Investors advised in
writing as to the initiation of each registration and as to the completion
thereof. At its expense, the Company will:
(i) keep such registration effective for a period of 180 days or
until the Private Placement Investors have completed the distribution
described in the registration statement relating thereto, whichever
first occurs; provided, however, that such 180-day period shall be
extended for a period of time equal to the period during which the
Private Placement Investors refrain from selling any securities
included in such registration in accordance with provisions in Section
3.8 hereof; provided that Rule 415, or any successor rule under the
Securities Act, permits an
NewsReal - Shareholder Rights Agreement
-7-
8
offering on a continuous or delayed basis, and provided further that
applicable rules under the Securities Act governing the obligation to
file a post-effective amendment permit, in lieu of filing a
post-effective amendment which (y) includes any prospectus required by
Section 10(a) of the Securities Act or (z) reflects facts or events
representing a material or fundamental change in the information set
forth in the registration statement, the incorporation by reference of
information required to be included in (y) and (z) above to be
contained in periodic reports filed pursuant to Section 12 or 15(d) of
the Exchange Act in the registration statement; and
(ii) furnish such number of prospectuses and other documents incident
thereto as each of the Private Placement Investors from time to time
may reasonably request.
3.5. Indemnification.
(a) The Company will indemnify the Private Placement Investor, each
of their respective officers, directors, shareholders, members and partners, and
each person controlling the Private Placement Investor, as the case may be, with
respect to each registration which has been effected pursuant to this Agreement,
and each underwriter (including any officers, directors and partners), if any,
and each person who controls any underwriter within the meaning of the
Securities Act, against all claims, losses, damages, expenses and liabilities
(or actions in respect thereof) arising out of or based on any untrue statement
(or alleged untrue statement) of a material fact contained in any prospectus,
offering circular or other document (including any registration statement,
notification or the like) 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 light of the circumstances in which they were made, not misleading,
or any violation by the Company of the Securities Act or any rule or regulation
applicable to the Company and relating to action or inaction required of the
Company in connection with any such registration, qualification or compliance,
and will reimburse the Private Placement Investors, each of their respective
officers, directors and partners, and each person controlling the Private
Placement Investor, each such underwriter and each person who controls any such
underwriter, for any legal and any other expenses reasonably incurred in
connection with investigating and 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 based upon written
information furnished to the Company by any Private Placement Investors or
underwriter and stated to be specifically for use therein.
(b) Each Private Placement Investor will, if Registrable Securities
held by it are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each of
its directors and officers and each underwriter, if any, of the Company's
securities covered by such a registration statement, each person who controls
the Company or such underwriter, each Other Shareholder and each of their
officers, directors, and partners, and each person controlling such Other
Shareholder against all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such registration
NewsReal - Shareholder Rights Agreement
-8-
9
statement, prospectus, offering circular or other document made by the Private
Placement Investor, or any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
by the Private Placement Investor, as the case may be, therein not misleading,
and will reimburse the Company and such Other Shareholders, directors, officers,
partners, persons, underwriters or control persons for any legal or any other
expenses reasonably 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 Private
Placement Investor, as the case may be, and stated to be specifically for use
therein; provided, however, that the obligations of any Private Placement
Investor hereunder and under Section 3.5(d) shall be limited to an amount equal
to the net proceeds to the Private Placement Investor of securities sold
pursuant to such registration statement or prospectus.
(c) Each party entitled to indemnification under this Section 3.5
(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 any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose timely approval
shall not unreasonably be withheld) and the Indemnified Party may participate in
such defense at such party's expense (unless the Indemnified Party shall have
reasonably concluded that there may be a conflict of interest between the
Indemnifying Party and the Indemnified Party in such action, in which case the
fees and expenses of counsel shall be at the expense of the Indemnifying Party),
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 unless the Indemnifying Party is materially prejudiced
thereby. 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. Each Indemnified Party shall furnish such information regarding
itself or the claim in question as an Indemnifying Party may reasonably request
in writing and as shall be reasonably required in connection with the defense of
such claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section 3.5 is held
by a court of competent jurisdiction to be unavailable to an Indemnified Party
with respect to any loss, liability, claim, damage or expense referred to
herein, then the Indemnifying Party, in lieu of indemnifying such Indemnified
Party hereunder, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, liability, claim, damage or expense
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 statements or omissions which resulted in such loss,
liability, claim, damage or expense, as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of the
Indemnified Party shall be determined by reference to, among other things,
whether the untrue (or alleged untrue)
NewsReal - Shareholder Rights Agreement
-9-
10
statement of a material fact or the omission (or alleged 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 correct or prevent such statement or omission.
(e) The foregoing indemnity agreement of the Company and the Private
Placement Investors is subject to the condition that, insofar as they relate to
any loss, claim, liability or damage made in a preliminary prospectus but
eliminated or remedied in the amended prospectus on file with the Securities and
Exchange Commission ("SEC") at the time the registration statement in question
becomes effective or the amended prospectus filed with the SEC pursuant to SEC
Rule 424(b) (the "Final Prospectus"), such indemnity agreement shall not inure
to the benefit of any underwriter if a copy of the Final Prospectus was
furnished to the underwriter and was not furnished to the person asserting the
loss, liability, claim or damage at or prior to the time such action is required
by the Securities Act.
3.6. Information by the Private Placement Investor.
Each Private Placement Investor holding securities included in any
registration shall furnish to the Company such information regarding the Private
Placement Investor and the distribution proposed by the Private Placement
Investor as the Company may reasonably request in writing and as shall be
reasonably required in connection with any registration, qualification or
compliance referred to in this Agreement.
3.7. Rule 144 Reporting.
With a view to making available the benefits of certain rules and
regulations of the SEC which may permit the sale of restricted securities to the
public without registration, the Company agrees to:
(i) make and keep public information available as those terms are
understood and defined in Rule 144, at all times from and after ninety
(90) days following the effective date of the first registration under
the Securities Act filed by the Company for an offering of its
securities to the general public;
(ii) use its best efforts to file with the SEC in a timely manner all
reports and other documents required of the Company under the
Securities Act and the Exchange Act at any time after it has become
subject to such reporting requirements; and
(iii) so long as the Private Placement Investor owns any Registrable
Securities, furnish to the Private Placement Investor, upon request, a
written statement by the Company as to its compliance with the
reporting requirements of Rule 144 (at any time from and after ninety
(90) days following the effective date of the first registration
statement filed by the Company for an offering of its securities to
the general public) and of the Securities Act and the Exchange Act (at
any time after it has become subject to such reporting requirements),
a copy of the most recent annual or quarterly report of the Company,
and such other reports and documents so filed as the Private Placement
Investor may reasonably request
NewsReal - Shareholder Rights Agreement
-10-
11
in availing itself of any rule or regulation of the SEC allowing the
Private Placement Investor to sell any such securities without
registration.
3.8. "Market Stand-off" Agreement.
Each Private Placement Investor agrees, if requested by the Company
and an underwriter of Common Stock (or other securities) of the Company, not to
sell or otherwise transfer or dispose of any Purchased Shares (or other
securities) of the Company held by such Private Placement Investor during such
period as the underwriter may reasonably require, such period not to exceed 180
days following the effective date of a registration statement of the Company
filed under the Securities Act; provided that such agreement only applies to the
IPO and provided, further, that such agreement shall not restrict offshore
transfers of the Purchased Shares (or other securities) of the Company by any
Private Placement Investor pursuant to Regulation S and otherwise in compliance
with this Agreement, and subject to any further restriction imposed on such
offshore transfers by an underwriter. If requested by the underwriters, each
Private Placement Investor shall execute a separate agreement to the foregoing
effect. The Company may impose stop-transfer instructions with respect to the
shares (or securities) subject to the foregoing restriction until the end of
said period. The provisions of this Section 3.8 shall be binding upon any
transferee who acquires Registrable Securities.
3.9. Assignment.
The rights set forth in this Section 3 may be assigned, in whole or in
part, to any transferee of Registrable Securities (who shall be considered
thereafter to be a Private Placement Investor, and shall be bound by all
obligations and limitations of this Agreement).
4. ANTIDILUTION PROTECTION
4.1 Certain Definitions.
As used in this Section 4:
(a) Performance Options. The term "Performance Options" refers to (i)
performance options and warrants to purchase 3,974,570 shares of the Company's
Common Stock that are existing as of the date of this Agreement and that have
been granted to certain founders of the Company, Infoseek Corporation and the
Company's employees, at exercise prices ranging from $.001 per share to $1.0023
per share, which options become exercisable if the QIP Investors earn an annual
return of at least 30% on a portion of their investment in the Company and an
annual return of at least 40% on an additional portion of their investment or,
alternatively, earn a 400% return on their cumulative aggregate investment in
the Company following an IPO, and (ii) performance options to purchase 5,249,410
shares of the Company's Common Stock that are existing as of the date of this
Agreement and that have been granted to certain founders of the Company and
employees of the Company, which options become exercisable upon conversion of
the QIP Indebtedness and upon the QIP Investors earning the returns specified in
clause (i) above.
NewsReal - Shareholder Rights Agreement
-11-
12
(b) QIP. "QIP" means Quantum Industrial Partners, LDC, a Cayman
Islands exempted limited duration company.
(c) QIP Indebtedness. The term "QIP Indebtedness" means (i) the
indebtedness in the principal amount of $4,000,000 owed by the Company to
Bayerische Hypo und Vereinsbank, A.G. pursuant to a Term Loan Agreement dated
December 11, 1997, as amended, of which indebtedness $1,000,000 has been fully
guaranteed by QIP and $3,000,000 has been repaid by QIP, and (ii) loans to the
Company in the aggregate principal amount of up to $4,000,000 from the QIP
Investors.
(d) QIP Investors. "QIP Investors" means the investors listed on
Schedule II attached hereto.
4.2 Issuance of Stock In Connection with Vesting of Performance
Options. The parties acknowledge that the Performance Options previously granted
by the Company have not been taken into account in determining the number of
Purchased Shares deliverable to the Private Placement Investors pursuant to the
Private Placement Financing, and that such Performance Options, if and to the
extent that they become exercisable and are exercised, would result in dilution
to the Private Placement Investors. To that end, at any time a Performance
Option becomes exercisable to its holder (a "Vested Performance Option") and is
exercised by its holder and shares of Common Stock are issued to its holder, the
Company shall issue without the payment of additional consideration beyond the
Purchase Price previously paid under the Subscription Agreements (which
constituted consideration for such additional shares) that number of shares of
Common Stock to each Private Placement Investor necessary to maintain the
ownership percentage of such Private Placement Investor in the Company at the
same percentage level as at the date of this Agreement based on its investment
pursuant to the Private Placement Financing, after giving effect to (i) the
number of shares issued to the holders who exercised Vested Performance Options
resulting in the issuance of such additional shares to the Private Placement
Investors, (ii) the number of additional shares of Common Stock issued to CNNfn,
a division of Cable News Network LP, LLLP ("CNNfn") pursuant to its
anti-dilution protection in Section 5.6 of the Common Stock Purchase Agreement
dated April 21, 1999 between CNNfn and the Company, and (iii) the number of
additional shares issued to the other Private Placement Investors pursuant to
this Section 4.2. Upon issuance, such additional shares shall be duly
authorized, validly issued, fully-paid and non-assessable.
4.3 Issuance of Additional Stock In Connection with Conversation of
Certain Indebtedness. The parties acknowledge that, to the extent the QIP
Indebtedness is paid by QIP and the QIP Investors elect to convert such
Indebtedness (or such Indebtedness is converted pursuant to the terms of the
Conversion Agreement dated March 31, 1999 between the Company and the QIP
Investors) into Common Stock of the Company, up to 6,809,717 shares of Common
Stock will be issued to the QIP Investors, which shares have not been taken into
account in determining the number of Purchased Shares deliverable to Private
Placement Investors pursuant to the Private Placement Financing. Such additional
shares, if and to the extent that they are issued to the QIP Investors, would
result in additional dilution to the Private Placement Investors. To that end,
at any time any additional shares of Common Stock are issued to the QIP
Investors in connection with the exercise of conversion rights described in this
Section 4.3, the
NewsReal - Shareholder Rights Agreement
-12-
13
Company shall issue without payment of additional consideration beyond the
Purchase Price previously paid under the Subscription Agreement (which
constituted consideration for such additional shares) that number of shares of
Common Stock to each Private Placement Investor necessary to maintain the
ownership percentage of such Private Placement Investor in the Company at the
same percentage level as at the date of this Agreement based on its investment
pursuant to the Private Placement Financing, after giving effect to (i) the
number of shares issued to the QIP Investors resulting in the issuance of such
additional shares to Private Placement Investors, (ii) the number of additional
shares of Common Stock issued to CNNfn pursuant to its anti-dilution protection
in Section 5.7 of the Common Stock Purchase Agreement dated April 21, 1999
between CNNfn and the Company, and (iii) the number of additional shares issued
to the other Private Placement Investors pursuant to this Section 4.3. Upon
issuance, such additional shares shall be duly authorized, validly issued,
fully-paid and non-assessable.
4.4 Treated as Purchased Shares. Any additional shares of Common Stock
issued to the Private Placement Investors pursuant to Section 4 of this
Agreement will be deemed "Purchased Shares" for all purposes of this Agreement.
5. INTERPRETATION OF THIS AGREEMENT.
(a) Directly or Indirectly. Where any provision in this Agreement
refers to action to be taken by any person, or which such person is prohibited
from taking, such provision shall be applicable whether such action is taken
directly or indirectly by such person.
(b) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware applicable to contracts
made and to be performed entirely within such State.
(c) Section Headings. The headings of the sections and subsections of
this Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof.
6. MISCELLANEOUS.
(a) Subsequent Shareholders. This Agreement shall be fully applicable
to (i) all Purchased Shares owned by the Private Placement Investors and all
other securities of the Company, whether now owned or hereafter acquired by any
Private Placement Investor, (ii) all who subsequently acquire a community
property or any other interest in any such securities subject to this Agreement
and (iii) any of the securities of the Company subject to this Agreement
transferred by a party hereto to any other person in accordance with this
Agreement. Any person acquiring an interest in any securities of the Company
subject to this Agreement shall execute and deliver to the Company a separate
Shareholder Rights Agreement in the form of this Agreement pursuant to which
such person acknowledges that it is bound by all of the terms and provisions of
this Agreement; provided, however, that the failure to execute and deliver such
a Shareholder Rights Agreement shall not be deemed to relieve such person of the
restrictions imposed by this Agreement. Any attempted dispositions in breach of
this Agreement shall be void.
NewsReal - Shareholder Rights Agreement
-13-
14
(b) Notices. (i) All communications under this Agreement shall be in
writing and shall be delivered by hand or mailed by overnight courier or by
registered or certified mail, postage prepaid:
(1) if to the Private Placement Investors or to any Private
Placement Investor, to the last known address of such Private
Placement Investor on the books of the Company, or at such other
address as any Private Placement Investor may have furnished the
Company in writing.
(2) if to the Company, to:
NewsReal, Inc.
00 Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Fax: (000) 000-0000
with a copy to:
Powell, Goldstein, Xxxxxx & Xxxxxx, LLP
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx Xxxxx
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx X. Xxxx
Fax: (000) 000-0000
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties.
(f) Entire Agreement; Amendment and Waiver. This Agreement constitutes
the entire understanding of the parties hereto relating to the subject matter
hereof and supersede all prior agreements or understandings with respect to the
subject matter hereof among such parties. This Agreement may be amended, and the
observance of any term of this Agreement may be waived, with (and only with) the
written consent of the Company and Private Placement Investors who hold more
than fifty percent (50%) of the number of issued and outstanding Purchased
Shares.
(g) Counterparts; Fax Execution. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement. This Shareholder Rights
Agreement may be executed by fax delivery of a signed signature page to the
other parties and such fax execution will be effective for all purposes.
[SIGNATURES ON FOLLOWING PAGES]
NewsReal - Shareholder Rights Agreement
-14-
15
IN WITNESS WHEREOF, the duly authorized representatives of the
undersigned have executed this Agreement as of the date first written above.
NEWSREAL, INC.
By: /s/ XXXXX X. XXXXXXXX
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President & CEO
[Name of Private Placement Investor]
------------------------------------
By:
---------------------------------
Name:
Title:
NewsReal - Shareholder Rights Agreement
-15-