REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is entered into as
of July 31, 1997 (the "EFFECTIVE DATE"), by and among Yahoo! Inc., a
California corporation (the "COMPANY"), and Xxxxxxx Xxxxxxxxxx-Xxxxx (the
"SHAREHOLDER").
RECITALS
1. The Company and the Shareholder have entered into a Stock Purchase
Agreement of even date herewith pursuant to which the Company has issued to the
Shareholder shares of the Company's Common Stock (the "YAHOO! SHARES") in
consideration of the shares of NetControls, Inc. (the "NETCONTROLS SHARES")
held by the Shareholder.
2. As a condition to the closing of the sale of the NetControls Shares
to the Company, the Company has agreed to grant certain registration rights to
the Shareholder with respect to the Yahoo! Shares.
3. The Company wishes to execute this Agreement and grant to the
Shareholder the rights contained herein in order to fulfill such condition.
The parties hereto agree as follows:
Section 1. REGISTRATION RIGHTS.
1.1 DEFINITIONS. As used in this Agreement:
(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 of 1933, as amended (the "SECURITIES ACT"),
and the subsequent declaration or ordering of the effectiveness of such
registration statement.
(b) The term "REGISTRABLE SECURITIES" means:
(i) the Yahoo! Shares issued to the Shareholder pursuant to the
Stock Purchase Agreement, less the Escrow Shares (as defined in the Stock
Purchase Agreement); and
(ii) any other shares of Common Stock of the Company issued as
(or issuable upon the conversion or exercise of any warrant, right or other
security which is issued as) a dividend or other distribution with respect to,
or in exchange for or in replacement of, the 21,062 Yahoo! Shares designated in
Section 1.1(b)(i) above,
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excluding in all cases, however, any Registrable Securities sold by a person
in a transaction in which his or her rights under this Agreement are not
assigned; PROVIDED, HOWEVER, that Common Stock or other securities shall only
be treated as Registrable Securities if and so long as they have not been (A)
sold to or through a broker or dealer or underwriter in a public distribution
or a public securities transaction, or (B) sold in a transaction exempt from
the registration and prospectus delivery requirements of the Securities Act
under Section 4(1) thereof so that all transfer restrictions, and restrictive
legends with respect thereto, if any, are removed upon the consummation of
such sale.
(c) The term "HOLDER" means any holder of outstanding Registrable
Securities who, subject to the limitations set forth in Section 1.10 below,
acquired such Registrable Securities in a transaction or series of transactions
not involving any registered public offering.
(d) The term "FORM S-3" means such form under the Securities Act as
in effect on the date hereof or any registration form under the Securities Act
subsequently adopted by the Securities and Exchange Commission ("SEC") which
permits inclusion or incorporation of substantial information by reference to
other documents filed by the Company with the SEC.
1.2 FORM S-3 REGISTRATION. In the event the Company shall receive from
any Holder or Holder(s) owning in the aggregate at least fifty percent (50%) of
the then-outstanding Registrable Securities a written request or requests that
the Company effect a registration on Form S-3 and any related qualification or
compliance with respect to all or a part of the Registrable Securities owned by
such Holder or Holder(s), the Company will:
(a) promptly give written notice of the proposed registration, and
any related qualification or compliance, to all other Holder(s); and
(b) as soon as practicable, effect such registration and all such
qualifications and compliances as may be reasonably so requested and as would
permit and facilitate the sale and distribution of all or such portion of such
Holder's or Holders' Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any other
Holder(s) joining in such request as are specified in a written request given
within twenty (20) days after receipt of such written notice from the Company;
PROVIDED, HOWEVER, that the Company shall not be obligated to cause any such
registration, qualification or compliance, pursuant to this Section 1.2 to
become effective:
(i) prior to the date six (6) months following the Effective
Date or later than the date eight (8) months following the Effective Date;
(ii) if Form S-3 is not available for such offering by the
Holder(s);
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(iii) if the Holder(s), together with the holders of any other
securities of the Company entitled to inclusion in such registration, propose
to sell Registrable Securities at an aggregate price to the public (net of any
underwriters' discounts or commissions) of less than $500,000, or such lower
dollar amount as equals the aggregate price to the public (net of any
underwriters' discounts or commissions) of 14,000 shares of Registrable
Securities;
(iv) if the Company shall furnish to the Holder(s) a certificate
signed by the president of the Company stating that in the good faith judgment
of the Board of Directors of the Company, it would be seriously detrimental to
the Company and its Shareholder for such Form S-3 Registration to be effected
at such time, in which event the Company shall have the right to defer the
filing of the Form S-3 registration statement for a period of not more than
ninety (90) days after receipt of the request of the Holder or Holder(s) under
this Section 1.2 and the period during which the Holder(s) may exercise their
rights hereunder shall be extended for an equivalent period;
(v) if the Company has already effected one (1) registration on
Form S-3 for the Holder(s) pursuant to this Section 1.2 or the Holder(s) have
been offered the opportunity to participate in a registration pursuant to
Sections 1.3 or 1.4 below with respect to all of the Holder's or Holders'
Registrable Securities (whether or not the Holder(s) elected to participate in
such registration) or such other registration is pending; or
(vi) in any particular jurisdiction in which the Company would
be required to qualify to do business or to execute a general consent to
service of process in effecting such registration, qualification or compliance.
(c) Subject to the foregoing, the Company shall file a registration
statement on Form S-3 covering the Registrable Securities so requested to be
registered as soon as practicable after receipt of the request or requests of
the Holder(s). All expenses incurred in connection with a registration
requested pursuant to Section 1.2, including (without limitation) all
registration, filing, qualification, printer and accounting fees shall be borne
by the Company. The Company shall not be required to pay any underwriters' or
brokers' fees, discounts or commissions relating to the Registrable Securities,
or the fees or expenses of separate counsel to the selling Holder(s).
(d) If, at any time during the twenty-five (25) day period after the
registration statement has been declared effective, a Holder intends to sell
Registrable Securities pursuant to this Section 1.2, such Holder shall submit
written notice to the Company (a "NOTICE OF SALE") by facsimile transmission of
such intention which shall include the name of the Holder, the number of shares
of Registrable Securities that such Holder intends to sell and the Holder's
telephone and facsimile numbers. (If the Notice of Sale is actually received
in a day other than a business day, it will be deemed received on the next
business day; the date on which the Notice of Sale is received is referred to
as the "NOTICE DATE;" the time on which the Notice of Sale is received is
referred to as the
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"NOTICE TIME".) Upon receiving a Notice of Sale from a Holder, the Company
will notify the Holder as soon as reasonably practicable (but in no event
later than the same time as the Notice Time on the next business day
following the Notice Date) whether (i) the Company believes that the
prospectus contained in the Registration Statement, as then amended or
supplemented, is available for immediate use, whereupon the Company shall so
notify the Holder(s) and the Holder(s) will have a period of five (5) days
following such notification in which to sell its Registrable Securities or
(ii) the Company believes that it is necessary or appropriate to file a
supplement or file a post-effective amendment to the registration statement
or the prospectus or any document incorporated therein by reference or file
any other report or document so that, as thereafter delivered to the
purchasers of the Registrable Securities, the prospectus will not contain an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading (a "PROSPECTUS
UPDATE"). If the Company notifies the Holder(s) that it believes it may be
necessary or appropriate to effectuate a Prospectus Update and the Company is
not exercising any right it may have under Section 1.2(e) to postpone the
Prospectus Update, the Company will thereupon use all reasonable efforts to
effectuate such Prospectus Update as soon as reasonably possible, and not
later than three (3) business days after the Notice of Sale is received by
the Company, except that the Company will have up to an additional two (2)
business days to effectuate such Prospectus Update if, because of the
particular circumstances involved, the Company could not effectuate the
Prospectus Update earlier, despite all reasonable diligence. As soon as the
Prospectus Update has been effectuated, the Company will notify each Holder
who has submitted a Notice of Sale that the prospectus is available for use,
whereupon each such Holder will have a period of five (5) days in which to
sell its Registrable Securities.
(e) The Company will be entitled to postpone, for the minimum period
provided below, the filing of any Prospectus Update otherwise required to be
prepared and filed by it pursuant hereto if, at the time it receives a Notice
of Sale, the Company determines in its reasonable judgment, after consultation
with counsel, that (i) the Company would be required to prepare and file any
financial statements (other than those it customarily prepares or before it
customarily files such financial statements), (ii) the Company would be
required to file an amendment to the registration statement to describe facts
or events which individually or in the aggregate represent a fundamental change
in the information contained in the registration statement within the meaning
of Item 512 of Regulation S-K promulgated under the Securities Act, or (iii)
the filing would require the premature announcement of any financing,
acquisition, corporate reorganization, contract or other material corporate
transaction or development involving the Company such as the Company reasonably
determines would be materially detrimental to the interests of the Company and
its shareholders. The postponement will be for the minimum period reasonably
required for the Company to prepare and file the necessary documents, in the
case of a postponement pursuant to (i) or (ii) above, or the minimum period
reasonably required to avoid such premature disclosure, in the case of (iii)
above, and which period will not be in excess of thirty (30) days unless,
because of the unusual nature of the particular circumstances, it is necessary
that the period extend
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beyond thirty (30) days. The Company will promptly give each Holder who has
submitted a Notice of Sale notice of any postponement exercised pursuant to
this Section 1.2(e). As soon as the Prospectus Update has been effectuated
following a postponement effected pursuant to this Section 1.2(e), the
Company will notify each Holder who has submitted a Notice of Sale that the
prospectus is available for use, whereupon each such Holder will have a
period of five (5) days in which to sell its Registrable Securities.
(f) The Holder(s) may not sell shares of Registrable Securities
under this Section 1.2 without first (i) complying with the Notice of Sale
requirements of Section 1.2(d) and (ii) allowing the Company to prepare
Prospectus Updates (including any permitted postponements thereof) as set forth
in Sections 1.2(d) and (e). A Holder will submit a Notice of Sale only if in
good faith it actually intends to sell the Registrable Securities within such
five (5) day period and with the understanding that a Notice of Sale is to be
made only on the occasion that the sale of Registrable Securities is actually
contemplated and not on a continual basis. A Holder will notify the Company by
facsimile transmission promptly after it has completed or otherwise ceased
sales following submission of a Notice of Sale. The Holder(s) will provide to
the Company all information in the Holder(s)' possession or control, and will
take all actions, as may be required in order to permit the Company to comply
with all applicable requirements of the Securities Act and any applicable state
securities laws.
(g) Under no circumstances shall the Company be required to keep a
registration statement effective and available pursuant to this Section 1.2 for
greater than thirty (30) days (after taking into account any periods of delay
permitted under Sections 1.2(d) and (e) above).
1.3 PIGGYBACK REGISTRATIONS.
(a) During the period beginning six (6) months following the
Effective Date and ending twelve (12) months following the Effective Date (the
"PIGGYBACK PERIOD"), and provided that the Holder(s) have not exercised an S-3
registration under Section 1.2 above or been offered and had the opportunity to
participate in a registration with respect to all of its Registrable Securities
pursuant to Section 1.4 below, the Company will notify the Holder(s) in writing
at least thirty (30) days prior to filing its first registration statement
under the Securities Act during the Piggyback Period for purposes of effecting
a public offering of Yahoo! Common Stock (excluding any registration statement
on Form S-8 or any successor form) and will afford the Holder(s) an opportunity
to include in such registration statement all or any part of the Registrable
Securities not previously sold by the Holder(s). If a Holder desires to
include in any such registration statement all or any part of such Registrable
Securities, such Holder will, within twenty (20) days after receipt of the
foregoing notice from the Company, so notify the Company in writing. The
Holder's notice will inform the Company of the number of shares the Holder
wishes to include in such registration statement.
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(b) If a registration statement for which the Company gives notice
under this Section 1.3 is for an underwritten offering, the Company will so
advise the Holder(s). In such event, a Holder's right to include Registrable
Securities in a registration pursuant to this Section 1.3 will be conditioned
upon such Holder's participation in such underwriting and the inclusion of the
Registrable Securities in the underwriting to the extent provided herein. In
order to participate in the underwriting, a Holder must enter into an
underwriting agreement in customary form with the managing underwriter or
underwriter(s) selected for such underwriting. Notwithstanding any other
provision of this Agreement, if the managing underwriter(s) determine in good
faith that marketing factors require a limitation of the number of shares to be
underwritten, then the managing underwriter(s) may exclude shares (including
any or all of the Registrable Securities) from the registration and the
underwriting, and the number of shares that may be included in the registration
and the underwriting will be allocated first, to the shares to be sold by the
Company and any shares proposed to be sold thereunder by Shareholder on a pro
rata basis based upon the number of shares proposed to be sold by the Company
and Shareholder, respectively, and, second, to any shares proposed to be sold
thereunder by any holders of registration rights granted by the Company (other
than the Shareholder) on a pro rata basis based upon the number of shares of
each such holder entitled to such registration. If a Holder disapproves of the
terms of any such underwriting, it may elect to withdraw therefrom by written
notice to the Company and the managing underwriter(s), delivered at least ten
(10) business days prior to the effective date of the registration statement.
Any shares excluded or withdrawn from such underwriting will be excluded and
withdrawn from the registration.
(c) All expenses incurred in connection with a registration effected
pursuant to Section 1.3, including (without limitation) all registration,
filing, qualification, printer and accounting fees shall be borne by the
Company. The Company shall not be required to pay any underwriters' or
brokers' fees, discounts or commissions relating to the Registrable Securities,
or the fees or expenses of separate counsel to the selling Holder(s), unless
the Company's counsel is unable or unwilling to represent the selling
Holder(s).
1.4 THIRD PARTY S-3 REGISTRATION.
(a) At any time following the Effective Date, the Company may, in
lieu of its obligation to effect a registration for the Holder(s) pursuant to
Section 1.2 or 1.3 above, permit the Holder(s) to include all of its
Registrable Securities in an S-3 registration filed by the Company pursuant to
the request of a third party holder of Company securities by submitting written
notice thereof to the Holder(s), whereupon the Holder(s) shall be obligated to
include all of its Registrable Securities in such S-3 registration or forfeit
its rights under Sections 1.2 and 1.3 of this Agreement.
(b) Subject to the foregoing, the Company shall include in such S-3
registration the Registrable Securities requested to be registered therein by
the Holder(s). All expenses incurred in connection with a registration
requested pursuant to Section 1.4,
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including (without limitation) all registration, filing, qualification,
printer and accounting fees shall be borne by the Company. The Company shall
not be required to pay any underwriters' or brokers' fees, discounts or
commissions relating to the Registrable Securities, or the fees or expenses
of separate counsel to the selling Holder(s), unless the Company's counsel is
unable or unwilling to represent the selling Holder(s).
(c) If, at any time during the twenty-five (25) day period after the
registration statement has been declared effective (or such longer period of
time as is contemplated under Section 1.4(f) below), a Holder intends to sell
Registrable Securities pursuant to this Section 1.4, such Holder shall submit a
Notice of Sale by facsimile transmission which shall include the name of the
Holder, the number of shares of Registrable Securities that such Holder intends
to sell and the Holder's telephone and facsimile numbers. Upon receiving a
Notice of Sale from a Holder, the Company will notify the Holder as soon as
reasonably practicable (but in no event later than the same time as the Notice
Time on the next business day following the Notice Date) whether (i) the
Company believes that the prospectus contained in the Registration Statement,
as then amended or supplemented, is available for immediate use, whereupon the
Company shall so notify the Holder(s) and the Holder(s) will have a period of
five (5) days in which to sell its Registrable Securities or (ii) the Company
believes that it is necessary or appropriate to file a Prospectus Update. If
the Company notifies the Holder(s) that it believes it may be necessary or
appropriate to effectuate a Prospectus Update and the Company is not exercising
any right it may have under Section 1.4(d) to postpone the Prospectus Update,
the Company will thereupon use all reasonable efforts to effectuate such
Prospectus Update as soon as reasonably possible, and not later than three (3)
business days after the Notice of Sale is received by the Company, except that
the Company will have up to an additional two (2) business days to effectuate
such Prospectus Update if, because of the particular circumstances involved,
the Company could not effectuate the Prospectus Update earlier, despite all
reasonable diligence. As soon as the Prospectus Update has been effectuated,
the Company will notify each Holder who has submitted a Notice of Sale that the
prospectus is available for use, whereupon each such Holder will have a period
of five (5) days in which to sell its Registrable Securities.
(d) The Company will be entitled to postpone, for the minimum period
provided below, the filing of any Prospectus Update otherwise required to be
prepared and filed by it pursuant hereto if, at the time it receives a Notice
of Sale, the Company determines in its reasonable judgment, after consultation
with counsel, that (i) the Company would be required to prepare and file any
financial statements (other than those it customarily prepares or before it
customarily files such financial statements), (ii) the Company would be
required to file an amendment to the registration statement to describe facts
or events which individually or in the aggregate represent a fundamental change
in the information contained in the registration statement within the meaning
of Item 512 of Regulation S-K promulgated under the Securities Act, or (iii)
the filing would require the premature announcement of any financing,
acquisition, corporate reorganization, contract or other material corporate
transaction or development involving
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the Company such as the Company reasonably determines would be materially
detrimental to the interests of the Company and its shareholders. The
postponement will be for the minimum period reasonably required for the
Company to prepare and file the necessary documents, in the case of a
postponement pursuant to (i) or (ii) above, or the minimum period reasonably
required to avoid such premature disclosure, in the case of (iii) above, and
which period will not be in excess of thirty (30) days unless, because of the
unusual nature of the particular circumstances, it is necessary that the
period extend beyond thirty (30) days. The Company will promptly give each
Holder who has submitted a Notice of Sale notice of any postponement
exercised pursuant to this Section 1.4(d). As soon as the Prospectus Update
has been effectuated following a postponement effected pursuant to this
Section 1.4(d), the Company will notify each Holder who has submitted a
Notice of Sale that the prospectus is available for use, whereupon each such
Holder will have a period of five (5) days in which to sell its Registrable
Securities.
(e) The Holder(s) may not sell shares of Registrable Securities
under this Section 1.4 without first (i) complying with the Notice of Sale
requirements of Section 1.4(c) and (ii) allowing the Company to prepare
Prospectus Updates (including any permitted postponements thereof) as set forth
in Sections 1.4(c) and (d). A Holder will submit a Notice of Sale only if in
good faith it actually intends to sell the Registrable Securities covered
thereby within such five (5) day period and with the understanding that a
Notice of Sale is to be made only on the occasion that the sale of Registrable
Securities is actually contemplated and not on a continual basis. A Holder
will notify the Company by facsimile transmission promptly after it has
completed or otherwise ceased sales following submission of a Notice of Sale.
The Holder(s) will provide to the Company all information in the Holder(s)'
possession or control, and will take all actions, as may be required in order
to permit the Company to comply with all applicable requirements of the
Securities Act and any applicable state securities laws.
(f) Under no circumstances shall the Company be required to keep a
registration statement effective and available pursuant to this Section 1.4 for
greater than thirty (30) days (after taking into account any periods of delay
permitted under Sections 1.4(c) and (d) above); PROVIDED, HOWEVER, that, in the
event that the Company keeps the registration statement effective in excess of
thirty (30) days (after taking into account any periods of delay permitted
under Sections 1.4(c) and (d) above) for the benefit of the third party that
requested the S-3 registration, the Holder(s) shall be entitled to submit a
Notice of Sale pursuant to Section 1.4(c) until the Company provides
notification to the Holder(s) that the Company intends to withdraw the
registration statement in five (5) days following the date of such
notification, whereupon the Holder(s) shall have a period of five (5) days
following the date of such notice in which to sell its Registrable Securities
(subject to postponement in accordance with Sections 1.4(c) and (d) above).
1.5 OBLIGATIONS OF THE COMPANY. When required under Section 1.2, 1.3 or
1.4 to effect the registration of any Registrable Securities, the Company
shall, as soon as reasonably practicable:
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(a) Prepare and file with the SEC a registration statement on Form S-
3 with respect to such Registrable Securities and use its reasonable efforts to
cause such registration statement to become effective, and keep such
registration statement effective (i) in the case of a registration under
Section 1.2 or 1.4, for a period of thirty (30) days or such shorter period
during which the Holder(s) complete the distribution described in the
registration statement relating thereto, whichever first occurs, or (ii) in the
case of a registration under Section 1.3, for the period in which shares are
sold by the Company thereunder.
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of Registrable Securities
pursuant to the terms and subject to the conditions of this Agreement.
(c) Furnish to the Holder(s) such numbers of copies of a prospectus,
in conformity with the requirements of the Securities Act, and such other
documents as they may reasonably request in order to facilitate the disposition
of Registrable Securities owned by them.
(d) Notify each Holder of Registrable Securities covered by a
registration statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of any
event as a result of which 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 the light of the circumstances
then existing, whereupon each Holder shall cease utilizing such prospectus and
the Company agrees, as soon thereafter as reasonably practicable (subject to
Sections 1.2(e) and 1.4(d) above), to effectuate a Prospectus Update so as to
meet the requirements of the Securities Act, and to notify the Holder(s) of
such action.
(e) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(f) Use its best efforts to furnish, at the request of any Holder
requesting registration of Registrable Securities pursuant to this Agreement,
on the date that such Registrable Securities are delivered to the underwriters
for sale in connection with a registration pursuant to this Agreement, if such
securities are being sold through underwriters, or, if such securities are not
being sold through underwriters, on the date that the registration statement
with respect to such securities becomes effective, (i) an opinion, dated such
date, of the counsel representing the Company for the purposes of
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such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering, addressed to the
underwriters, if any, and to the Holders requesting registration of
Registrable Securities and (ii) a letter dated such date, from the
independent certified public accounts of the Company, in form and substance
as is customarily given by independent certified public accounts in an
underwritten public offering, addressed to the underwriters, if any, and to
the Holders requesting registration of Registrable Securities.
1.6 FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 1 with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such
securities as shall be required to effect the registration of such Holder's
Registrable Securities.
1.7 INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder against any losses, claims, damages, or liabilities
(joint or several) to which any of the foregoing persons may become subject,
under the Securities Act, the Securities Exchange Act of 1934, as amended (the
"1934 Act"), or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "VIOLATION"): (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement,
including any final prospectus contained therein or any amendments or
supplements thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the
statements therein not misleading, or (iii) any violation or alleged violation
by the Company of the Securities Act, the 1934 Act, any state securities law or
any rule or regulation promulgated under the Securities Act, the 1934 Act or
any state securities law; and the Company will pay, as incurred, any legal or
other expenses reasonably incurred by any person intended to be indemnified
pursuant to this subsection 1.7(a), in connection with investigating or
defending any such loss, claim, damage, liability, or action; PROVIDED,
HOWEVER, that the indemnity agreement contained in this subsection 1.6(a) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability, or action if such settlement is effected without the consent of the
Company, which consent shall not be unreasonably withheld nor shall the Company
be liable in any such case for any such loss, claim, damage, liability, or
action to the extent that it arises out of or is based upon a Violation which
occurs (i) in reliance upon and in conformity with written information
furnished expressly for use in connection with such registration by a Holder or
(ii) as a result of any use or delivery by a Holder of a prospectus other than
the most current prospectus made available to such Holder by the Company.
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(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Securities Act or the 1934 Act,
any other Holder selling securities in such registration statement, against any
losses, claims, damages, or liabilities (joint or several) to which any of the
foregoing persons may become subject, under the Securities Act, the 1934 Act or
other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon any
Violation, in each case to the extent (and only to the extent) that such
Violation occurs (i) in reliance upon and in conformity with written
information furnished by such Holder expressly for use in connection with such
registration or (ii) as a result of any use or delivery by such Holder of a
prospectus other than the most current prospectus made available to such Holder
by the Company; and each such Holder will pay, as incurred, any legal or other
expenses reasonably incurred by any person intended to be indemnified pursuant
to this subsection 1.7(b), in connection with investigating or defending any
such loss, claim, damage, liability, or action; PROVIDED, HOWEVER, that the
indemnity agreement contained in this subsection 1.7(b) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Holder, which consent
shall not be unreasonably withheld. The liability of a selling Holder under
this paragraph (b) and under paragraph (d) below shall be limited to an amount
equal to the net proceeds to such selling Holder from the sale of such Holder's
Registrable Shares hereunder.
(c) Promptly after receipt by an indemnified party under this
Section 1.7 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 1.7,
deliver to the indemnifying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly noticed, to assume the defense thereof with counsel of the
indemnifying party's choosing. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.7, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 1.7.
(d) If the indemnification provided in this Section 1.7 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 therein,
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 that resulted in such loss, liability, claim,
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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 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 correct or prevent such statement or omission.
(e) The obligations of the Company and Holder(s) under this Section
1.7 shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 1, and otherwise.
1.8 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view to making
available to the Holder(s) the benefits of Rule 144 promulgated under the
Securities Act and any other rule or regulation of the SEC that may at any time
permit a Holder to sell securities of the Company to the public without
registration, the Company agrees to use its best efforts to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the 1934 Act;
and
(c) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of SEC Rule 144,
the Securities Act and the 1934 Act, (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed
by the Company, and (iii) such other information as may be reasonably requested
in availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration.
1.9 CERTAIN ADDITIONAL AGREEMENTS OF THE HOLDER(S).
(a) Prior to and so long as the Registration Statement shall remain
effective, each Holder shall:
(i) Not engage in any stabilization activity in connection with
Yahoo! Common Stock;
(ii) Not bid for or purchase any Yahoo! Common Stock or any
rights to acquire Yahoo! Common Stock, or attempt to induce any person to
purchase any Yahoo! Common Stock other than as permitted under the 1934 Act; or
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(iii) Effect all sales of Registrable Securities in broker's
transactions through broker-dealers acting as agents, in transactions directly
with market makers or in privately negotiated transaction where no broker or
other third party (other than the purchaser) is involved.
(b) Without limiting any other provision of this Agreement, no
Holder shall engage in any short-sales of Yahoo! Common Stock prior to the
effectiveness of the registration statement pursuant to which the Holder(s) is
offered the opportunity to sell its Registrable Securities hereunder, except to
the extent that any such short-sale is fully covered by freely tradable shares
of Yahoo! Common Stock.
1.10 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company
to register Registrable Securities pursuant to this Section 1 are not
assignable other than in connection with a transfer of such Registrable
Securities to any spouse, son or daughter of the Shareholder, or to trustees of
a trust the beneficiaries of which include the Shareholder and any spouse, son
or daughter of the Shareholder, provided that all such transferees agree in
writing to appoint a single representative as their attorney in fact for the
purpose of receiving any notices and exercising their rights under this
Section 1 and provided, further, that such assignment shall be effective only
if immediately following such transfer the further disposition of such
Registrable Securities by the transferee is restricted under the Securities
Act. Any attempted assignment of registration rights in contravention of this
Section 1.10 shall be null and void. The Shareholder shall, within a
reasonable time after such transfer, furnish the Company with written notice of
the name and address of such transferee and the securities with respect to
which such registration rights are being assigned.
1.11 TERMINATION OF REGISTRATION RIGHTS. The rights granted under this
Section 1 shall terminate upon the earlier of (a) two (2) years following the
Effective Date, or (b) with respect to any Holder, at such time as such Holder
may sell all of such Holder's Registrable Securities in any single three (3)
month period pursuant to Rule 144 (or such successor rule as may be adopted).
Section 2. MISCELLANEOUS.
2.1 ASSIGNMENT. Subject to the provisions of Section 1.10 hereof, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties hereto.
2.2 THIRD PARTIES. Nothing in this Agreement, express or implied, is
intended to confer upon any party, other than the parties hereto, and their
respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
herein.
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2.3 GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of California, without regard to the conflict of
laws provisions thereof.
2.4 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
2.5 NOTICES.
(a) All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or upon obtaining
written confirmation of receipt following facsimile transmission, or one (1)
business day after being sent by reputable overnight courier service or five
(5) business days after being mailed by registered or certified mail (return
receipt requested) to the parties at the following address (or at such other
address for a party as shall be specified by like notice):
To the Company: Yahoo! Inc.
0000 Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000
Attention: President
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
To a Holder: At such Holder's address as set forth on
EXHIBIT A attached hereto.
(b) Any party may, by written notice to the other, alter its address
or respondent, and such notice shall be considered to have been given ten (10)
days after the airmailing, telexing, telecopying or delivery thereof.
2.6 SEVERABILITY. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, portions of such provisions, or such
provisions in their entirety, to the extent necessary, shall be severed from
this Agreement, and the balance of this Agreement shall be enforceable in
accordance with its terms.
2.7 AMENDMENT AND WAIVER. Any provision of this Agreement may be amended
with the written consent of the Company and the Holder(s) of at least a
majority of the outstanding Registrable Securities. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon each Holder of
Registrable Securities and the Company. In addition, the Company may waive
performance of any obligation owing to it, as to some or all of the Holder(s)
of Registrable Securities, or agree to accept alternatives to such performance,
without obtaining the consent of any Holder of Registrable Securities. Each
Holder acknowledges that by the operation of
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Section 2.7 hereof, the Holder(s) of a majority of the outstanding
Registrable Securities, acting in conjunction with the Company, will have the
right and power to diminish or eliminate all rights pursuant to this
Agreement.
2.8 RIGHTS OF HOLDER(S). Each Holder of Registrable Securities shall
have the absolute right to exercise or refrain from exercising any right or
rights that such Holder may have by reason of this Agreement, including,
without limitation, the right to consent to the waiver or modification of any
obligation under this Agreement, and such Holder shall not incur any liability
to any other holder of any securities of the Company as a result of exercising
or refraining from exercising any such right or rights.
2.9 DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power or remedy accruing to any party to this Agreement, upon any breach or
default of the other party, shall impair any such right, power or remedy of
such non-breaching party nor shall it be construed to be a waiver of any such
breach or default, or an acquiescence therein, or of or in any similar breach
or default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach or default under this
Agreement, or any waiver on the part of any party of any provisions or
conditions of this Agreement, must be made in writing and shall be effective
only to the extent specifically set forth in such writing.
2.10. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first above written.
COMPANY:
YAHOO! INC.
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------
Title: President and CEO
--------------------------------------
SHAREHOLDER:
/s/ Xxxxxxx Xxxxxxxxxx-Xxxxx
---------------------------------------------
Xxxxxxx Xxxxxxxxxx-Xxxxx
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