Exhibit 10.26
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Registration Rights Agreement
among
National Broadcasting Company, Inc.
GE Investments Subsidiary, Inc.
CNET, Inc.
Flying Disc Investments Limited Partnership
Xx. Xxxxx Xxxxx
and
NBC Internet, Inc.
(formerly known as "Xenon 2, Inc.")
Dated: November 30, 1999
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TABLE OF CONTENTS
Section 1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Section 2. SHELF REGISTRATION OF RESALES. . . . . . . . . . . . . . . . . . . . . .3
(a) SHELF REGISTRATION STATEMENT . . . . . . . . . . . . . . . . . . . . .3
(b) MAINTENANCE OF EFFECTIVENESS . . . . . . . . . . . . . . . . . . . . .3
(c) OFFERINGS AND SALES. . . . . . . . . . . . . . . . . . . . . . . . . .4
(d) POSTPONEMENT OF SHELF REGISTRATION . . . . . . . . . . . . . . . . . .4
Section 3. DEMAND REGISTRATION. . . . . . . . . . . . . . . . . . . . . . . . . . .4
(a) REQUESTS FOR REGISTRATION BY HOLDERS . . . . . . . . . . . . . . . . .4
(b) FILING AND EFFECTIVENESS . . . . . . . . . . . . . . . . . . . . . . .5
(c) PRIORITY ON DEMAND REGISTRATION. . . . . . . . . . . . . . . . . . . .6
(d) POSTPONEMENT OF DEMAND REGISTRATION. . . . . . . . . . . . . . . . . .8
Section 4. PIGGYBACK REGISTRATION . . . . . . . . . . . . . . . . . . . . . . . . .8
(a) RIGHT TO PIGGYBACK . . . . . . . . . . . . . . . . . . . . . . . . . .8
(b) PRIORITY ON PIGGYBACK REGISTRATIONS. . . . . . . . . . . . . . . . . .8
Section 5. REGISTRATION PROCEDURES. . . . . . . . . . . . . . . . . . . . . . . . .9
Section 6. INFORMATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7. SUSPENSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 8. REGISTRATION EXPENSES. . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 9. INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
(a) INDEMNIFICATION BY NBCI. . . . . . . . . . . . . . . . . . . . . . . 15
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(b) INDEMNIFICATION BY HOLDERS . . . . . . . . . . . . . . . . . . . . . 16
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS . . . . . . . . . . . . . . . 16
(d) CONTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 10. UNDERWRITTEN REGISTRATIONS. . . . . . . . . . . . . . . . . . . . . . 18
(a) INITIAL CNET DEMAND. . . . . . . . . . . . . . . . . . . . . . . . . 18
(b) OTHER DEMAND REGISTRATIONS . . . . . . . . . . . . . . . . . . . . . 18
Section 11. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(a) REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(b) AMENDMENTS AND WAIVERS . . . . . . . . . . . . . . . . . . . . . . . 19
(c) NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(e) SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . . . . . . . . . . 21
(f) COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(g) HEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(h) GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(i) SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(k) ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 22
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made and
entered into as of November 30, 1999, by and among NBC Internet, Inc., a
Delaware corporation (formerly known as Xenon 2, Inc., and together with is
successors and assigns, "NBCI"), National Broadcasting Company, Inc., a
Delaware corporation (together with its successors and assigns, "NBC"), GE
Investments Subsidiary, Inc., a Delaware corporation ("GE SUB"), CNET, Inc.
(together with its successors and assigns, "CNET"), Flying Disc Investments
Limited Partnership, a Nevada limited partnership ("DISC"), Xx. Xxxxx Xxxxx
("KITZE") and each other person who becomes a holder hereunder (collectively,
with NBC, GE Sub, CNET, Disc and Kitze, the "HOLDERS").
RECITALS
WHEREAS, Xxxx.xxx, Inc., a Delaware corporation ("XOOM"), NBCi,
Xenon 3, Inc., a Delaware corporation ("XENON 3"), Snap! LLC, a Delaware
limited liability company ("SNAP"), and CNET, are parties to an Agreement and
Plan of Contribution and Merger, dated as of May 9, 1999, as amended (the
"MERGER AGREEMENT"), pursuant to which, among other things, the parties
thereto have agreed that (i) Xenon 3 will merge with and into Xoom, with Xoom
as the surviving corporation, and each outstanding share of common stock, par
value $0.0001 per share, of Xoom (the "COMMON STOCK") will be converted into
the right to receive one share of Class A common stock, par value $0.0001 per
share, of NBCi (the "CLASS A COMMON STOCK") and (ii) CNET will contribute its
ownership interest in Snap to NBCi in exchange for 7,147,584 shares of Class
A Common Stock;
WHEREAS, Xoom, NBCi, NBC, Neon Media Corporation, a Delaware
corporation ("NMC"), and GE Sub, are parties to a Second Amended and Restated
Agreement and Plan of Contribution, Investment and Merger, dated as of July
8, 1999, as amended (the "CONTRIBUTION AGREEMENT" and together with the
Merger Agreement, the "MERGER AGREEMENTS"), pursuant to which, among other
things, the parties thereto have agreed that (i) NMC will merge with and into
NBCi, with NBCi as the surviving corporation and each share of NMC common
stock will be converted into one share of Class B Common Stock of NBCi (the
"CLASS B COMMON STOCK") which will result in the issuance of 12,173,111
shares of Class B Common Stock to NBC Multimedia Inc., a wholly owned
subsidiary of NBC, (ii) a subsidiary of NBC will transfer its ownership
interest in Snap and certain other assets to NBCi in exchange for 11,417,569
shares of Class B Common Stock and a convertible note from NBCi which will be
convertible into 471,031 shares of Class B Common Stock and (iii) an
affiliate of NBC will purchase a convertible note from NBCi, which will be
convertible into 5,338,357 shares of Class B Common Stock, in exchange for
the assignment to NBCi of a note issued by NBC; and
WHEREAS, the execution and delivery of this Agreement by the
parties hereto is a condition to the closing of the transactions contemplated
by the Merger Agreements.
NOW, THEREFORE, in consideration of the mutual promises and
agreements set forth herein and in the Merger Agreements, and other valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties hereto hereby agree as follows:
Section 1. DEFINITIONS. For purposes of this Agreement, the following
capitalized terms have the following meanings:
"INITIAL CNET DEMAND": A Demand Notice delivered by CNET pursuant
to Section 3(a)(iv) or 3(a)(v).
"INITIAL HOLDERS": NBC, GE Sub, CNET, Disc and Kitze.
"PROSPECTUS": The prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the
Securities Act), as amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement and all other amendments
and supplements to such prospectus, including post-effective amendments, and
all material incorporated by reference or deemed to be incorporated by
reference in such prospectus.
"REGISTRABLE SECURITIES": All shares of Class A Common Stock (i)
held by the Initial Holders from time to time, (ii) held by transferees of
the Initial Holders, but only with respect to securities transferred in
accordance with Section 11(e); (iii) issuable by NBCi or (iv) issued or
issuable upon the conversion of Class B Common Stock, including shares of
Class B Common Stock issuable to NBC or its affiliates upon conversion of the
convertible notes held on the date hereof, into Class A Common Stock,
excluding in each case shares of Class A Common Stock that have been disposed
of pursuant to a Registration Statement relating to the sale thereof that has
become effective under the Securities Act or pursuant to Rule 144 or Rule 145
under the Securities Act. Registrable Securities shall also include any
shares of Class A Common Stock or other securities (or shares of Class A
Common Stock underlying such other securities) that may be received by the
Holders (x) as a result of a stock dividend on or stock split of Registrable
Securities or Class B Common Stock or (y) on account of Registrable
Securities or Class B Common Stock in a recapitalization of or other
transaction involving NBCi.
"REGISTRATION STATEMENT": Any registration statement of NBCi
under the Securities Act that covers any of the Registrable Securities
pursuant to the provisions of this Agreement, including the related
Prospectus, any preliminary prospectus, all amendments and supplements to
such registration statement (including post-effective amendments), all
exhibits and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
"SEC": The Securities and Exchange Commission.
"SECURITIES ACT": The Securities Act of 1933, as amended.
"UNDERWRITTEN OFFERING": A distribution, registered pursuant to
the Securities Act, in which securities of NBCi are sold to the public
through one or more underwriters.
"VOTING AGREEMENT": means the Voting Agreement dated as of May 9,
1999, among Xoom, certain holders of the capital stock of NBCi, NBC and CNET,
as the same may be amended, supplemented or otherwise modified from time to
time.
Section 2. SHELF REGISTRATION OF RESALES.
(a) SHELF REGISTRATION STATEMENT. Within 45 days of receipt by
NBCi of a written notice as described in Section 3(a) which is requested to
be effected as a shelf registration pursuant to Rule 415 under the Securities
Act (such Demand Registration, a "SHELF REGISTRATION") (which request shall
not be made at any time prior to the later of the twelve month anniversary of
the date hereof or the date on which NBCi first becomes eligible to file a
registration statement on Form S-3), NBCi shall file with the SEC a
registration statement for an offering to be made on a continuous basis
pursuant to Rule 415 under the Securities Act (a "SHELF REGISTRATION
STATEMENT") covering all of the Registrable Securities of the requesting
Holder included in the Demand Notice and any additional Registrable
Securities requested to be included by the other Holders pursuant to the
terms of Sections 3(c) and 4(b) (collectively, in such capacity, the
"REGISTERING HOLDERS"). The Shelf Registration Statement shall be on the
appropriate form and shall comply as to form in all material respects with
the requirements of the Securities Act and the sales and regulations
promulgated thereunder, permitting registration of such Registrable
Securities for resale by the Registering Holders in the manner designated by
them (including, without limitation, one or more Underwritten Offerings).
NBCi shall use all commercially reasonable efforts to cause the Shelf
Registration Statement to be declared effective by the SEC as promptly as
practicable. NBCi will notify the Registering Holders in writing when such
Shelf Registration Statement becomes effective.
(b) MAINTENANCE OF EFFECTIVENESS. NBCi agrees to use commercially
reasonable efforts to keep the Shelf Registration Statement (including the
preparation and filing of any amendments and supplements necessary for that
purpose) continuously effective until the earlier of (a) the date on which
the Registering Holders (or distributees or transferees of such Registering
Holders) no longer hold any Registrable Securities or (b) the date on which
all the Registrable Securities of the Registering Holders are eligible for
sale pursuant to Rule 144(k) (or any successor provision) or in one day
without registration pursuant to Rule 144(e) (or any successor provision)
under the Securities Act (such period, the "EFFECTIVE PERIOD"). Each
Registering Holder seeking to offer and sell Registrable Securities upon
exercise of the rights hereunder agrees to provide information to NBCi in a
timely manner regarding the proposed distribution by such Registering Holder
of the Registrable Securities and such other information reasonably requested
by NBCi in connection with the preparation of the Shelf Registration
Statement. If the Shelf Registration Statement ceases to be effective for
any reason or at any time during the Effective Period (other than because of
the sale of all the securities registered thereunder), NBCi shall use
commercially reasonable efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof. Upon written request from a
Registering Holder during the Effective Period, NBCi shall, subject to the
other provisions of this Agreement, promptly supplement the Shelf
Registration Statement to reflect resales of Class A Common
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Stock by any distributees or other transferees of any Holder who received
their Class A Common Stock in accordance with this Agreement and who have
been identified in writing to NBCi.
(c) OFFERINGS AND SALES. At any time during the Effective Period,
any Registering Holder may exercise its Shelf Registration rights hereunder
with respect to the Registrable Securities. If any Registering Holder
desires to offer and sell Registrable Securities under the Shelf Registration
Statement pursuant to an underwritten public offering, such Registering
Holder shall deliver a written notice (the "REGISTRATION NOTICE") to NBCi at
least 20 days prior to the date on which such Registering Holder desires to
consummate the sale of Registrable Securities. Any Registration Notice shall
be subject to revocation by the Registering Holder initiating the request by
delivery of a subsequent written notice to NBCi no later than the fifth
business day prior to the contemplated offering commencement date.
Upon receipt of a Registration Notice, NBCi shall, within 30 days
of receipt thereof, give written notice to the other Registering Holders of
NBCi's receipt thereof. Within 15 days of receipt of such a notice from
NBCi, any other Registering Holder desiring to offer and sell any Registrable
Securities in the subject offering shall give written notice to NBCi, the
Registering Holder who delivered the Registration Notice to NBCi, and the
lead managing underwriter, if any, which notice shall specify the number of
shares of Registrable Securities such Registering Holder desires to offer for
sale. NBCi shall not be permitted to participate in such an offering without
the written consent of the Registering Holder initiating the offering (which
consent shall not be unreasonably withheld). In the event the Registrable
Securities requested to be included by the Registering Holders in the
aggregate exceeds the number of Registrable Securities to be included in the
Underwritten Offering, priority will be determined in accordance with Section
3(c).
(d) POSTPONEMENT OF SHELF REGISTRATION. NBCi will be entitled to
postpone the obligation to file any Shelf Registration Statement for a
reasonable period not in excess of 90 calendar days if NBCi's Board of
Directors determines, in the good faith exercise of its business judgment,
that such registration and offering would materially interfere with BONA FIDE
financing plans or strategic acquisition, disposition or alliance of NBCi
that would require disclosure of information, the premature disclosure of
which could materially and adversely affect NBCi. Notwithstanding the
foregoing, in no event shall the aggregate number of days during any period
of 12 consecutive months during which the Registering Holders are subject to
(i) postponement pursuant to this Section 2(d), (ii) postponement pursuant to
Section 3(d) and (iii) Black-Out pursuant to Section 7 exceed 90 days. If
NBCi postpones the filing of a Shelf Registration Statement, it will promptly
notify the Holders in writing (i) when the events or circumstances permitting
such postponement have ended and (ii) that the decision to postpone was made
by the Board of Directors of NBCi in accordance with this Section 2(d).
Section 3. DEMAND REGISTRATION.
(a) REQUESTS FOR REGISTRATION BY HOLDERS. At any time and from time
to time during which there is no Shelf Registration Statement that is effective
under the Securities Act so as to permit the offer and sale of all Registrable
Securities thereunder, subject to the conditions
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set forth in this Agreement one or more Holders will have the right, by
written notice delivered to NBCi (a "DEMAND NOTICE"), to require NBCi to
register Registrable Securities under and in accordance with the provisions
of the Securities Act (a "DEMAND REGISTRATION"), PROVIDED that effective on
the date of this Agreement and subject to the conditions set forth herein (i)
NBC, on behalf of NBC or GE Sub, may not make more than four (4) Demand
Registrations in total, one of which can be made on Form S-1 and one of which
can be for a Shelf Registration, and CNET and Kitze, on behalf of Kitze or
Disc (for Registrable Securities held by Disc on the date hereof), may not
make more than three (3) Demand Registrations each, of which, in the case of
each of CNET and Kitze, one of which can be for a Shelf Registration and of
which two (2) can be made on Form S-1 in the case of CNET and its
transferees, and one (1) can be made on Form S-1 in the case of Kitze, Disc
and their respective transferees, (ii) no Demand Notice may be given prior to
six (6) months after the effective date of the immediately preceding Demand
Registration, (iii) no such Demand Registration may be required unless the
Holders requesting such Demand Registration provide to NBCi a certificate
(the "AUTHORIZING CERTIFICATE"), seeking to include Registrable Securities in
such Demand Registration with a market value of at least $25,000,000 (or
$50,000,000 in the case of a Demand Notice for a Shelf Registration)
(calculated based on the average closing sale price of such securities on the
principal securities exchange or quotation system where such securities are
listed on the five business days immediately preceding the date of the Demand
Notice) as of the date the Demand Notice is given, (iv) if a Demand Notice is
delivered to NBCi during the 60 day period commencing on the closing date of
the Contribution Agreement by CNET, such Demand Notice will be given priority
over any Demand Registrations or Shelf Registrations of Registrable
Securities until such registration for CNET is effected, (v) if a Demand
Notice is delivered to NBCi during the 60 day period commencing on the
closing date of the Contribution Agreement from a Holder other than CNET,
NBCi will provide CNET with the opportunity to deliver a Demand Notice, which
Demand Notice by CNET will be given priority over the previously delivered
Demand Notice and any other Demand Notice until such registration for CNET is
effected, (vi) if a Demand Notice is delivered to NBCi during the 12 month
period commencing on the closing date of the Contribution Agreement, such
Demand Registration shall be an Underwritten Offering in accordance with
Section 10, and (vii) in any Underwritten Offering, shares may be excluded by
the underwriters based on market conditions and marketing factors. The
Authorizing Certificate shall set forth (A) the name of each Holder signing
such Authorizing Certificate, (B) the number of Registrable Securities held
by each such Holder, and, if different, the number of Registrable Securities
such Holder has elected to have registered, and (C) the intended methods of
disposition of the Registrable Securities. Notwithstanding the foregoing, a
good faith decision by a Holder to withdraw Registrable Securities from
registration will not affect NBCi's obligations under this Section 3(a)
unless the amount remaining to be registered has a market value of less than
$25,000,000 (or $50,000,000 in the case of a Shelf Registration) (calculated
as aforesaid).
(b) FILING AND EFFECTIVENESS. NBCi will file a Registration
Statement relating to any Demand Registration as soon as practicable but in
no event later than 45 days following the date on which the Demand Notice is
given, or 90 days in the case of the first Demand Registration, and will use
its best efforts to cause the same to be declared effective by the SEC as
soon as practicable thereafter. If any Demand Registration is requested to be
effected as a Shelf
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Registration by the Holders demanding such Demand Registration, NBCi will
keep the Registration Statement filed in respect thereof effective for the
Effective Period.
Within ten (10) business days after receipt of such Demand Notice,
NBCi will serve written notice thereof (the "NOTICE") to all other Holders
and will, subject to the provisions of Section 3(c), include in such
registration all Registrable Securities with respect to which NBCi receives
written requests for inclusion therein ("REQUEST FOR INCLUSION") within ten
(10) business days after receipt of the Notice by the applicable Holder. In
the event that any other Holder has the right to request a Demand
Registration pursuant to the provisions of Section 3(a), and PROVIDED that
more than 60 days have elapsed since the closing date of the Contribution
Agreement, if such Request for Inclusion includes a Demand Notice on behalf
of such Holder, such Holder will be treated as an initiating Holder for
purposes of the Demand Registration. Any Holder will be permitted to
withdraw in good faith all or part of the Registrable Securities from a
Demand Registration at any time prior to the effective date of such Demand
Registration, in which event NBCi will promptly amend or, if applicable,
withdraw the related Registration Statement. In the event the withdrawing
Holder is the sole initiating Holder of such Demand Registration pursuant to
Section 3(a), such demand will count as a Demand Registration of such Holder
unless the withdrawing Holder pays all registration expenses in connection
with such withdrawn registration as described in Section 8; PROVIDED that in
the event there has been a Material Adverse Change in the business or
financial condition of NBCi between the date of the Demand Notice relating to
such Demand Registration and the date of the withdrawal, NBCi shall pay all
registration expenses and such registration shall not be counted as a Demand
Registration to which such Holder is entitled pursuant to Section 3(a)
hereof. In the event all of the initiating Holders withdraw, such demand
will count as a Demand Registration of each such Holder unless, in the case
of each such Holder, such Holder pays its pro rata portion of all
registration expenses in connection with such withdrawn registration as
described in Section 8; PROVIDED that in the event there has been a Material
Adverse Change in the business or financial condition of NBCi between the
date of the Demand Notice relating to such Demand Registration and the date
of the withdrawal, NBCi shall pay all registration expenses and such
registration shall not be counted as a Demand Registration to which such
Holders are entitled pursuant to Section 3(a) hereof. For the purpose of
this Section 3(b), "Material Adverse Change" shall mean any change that,
individually or in the aggregate with all other changes, is materially
adverse to the business, financial condition or results of operation of NBCi
and its subsidiaries taken as a whole other than any change or circumstance
arising from a decrease of less than 25% of the closing price of NBCi on the
National Association of Securities Dealers Automated Quotation System
("NASDAQ") or the National Market System of Nasdaq from the date of the
Demand Notice or the Request for Inclusion, as the case may be.
(c) PRIORITY ON DEMAND REGISTRATION. Subject to the provisions set
forth in Sections 3(a)(iv) and (v) and Section 3(b) regarding CNET's
priority, if Registrable Securities are to be registered pursuant to a Demand
Registration, NBCi shall provide written notice to the other Holders and will
permit all such Holders who request to be included in the Demand Registration
to include any or all Registrable Securities held by such Holders in such
Demand Registration. In connection with any Demand Registration, NBCi may
include securities for its own account and/or for the account of other
holders of NBCi's securities in such registration to
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the extent agreed to by the underwriters. If the managing underwriter or
underwriters of an Underwritten Offering to which such Demand Registration
relates advises the Holders that the total amount of Registrable Securities
that such Holders intend to include in such Demand Registration is in the
aggregate such as to materially and adversely affect the success of such
offering, then the number of Registrable Securities to be included in such
Demand Registration will, if necessary, be reduced and there will be included
in such Underwritten Offering the number of Registrable Securities that, in
the opinion of such managing underwriter or underwriters, can be sold without
materially and adversely affecting the success of such Underwritten Offering,
the Registrable Securities of the Holder or Holders initiating the Demand
Registration and NBCi shall receive priority in such Underwritten Offering to
the full extent of the Registrable Securities such Holder or Holders
(including NBCi) desire to sell, PROVIDED that, in the event the Registrable
Securities requested to be included by the initiating Holders and NBCi in the
aggregate exceeds the number of Registrable Securities to be included in the
Underwritten Offering, then:
(i) Registrable Securities requested to be included by CNET in
the Initial CNET Demand will comprise the lesser of (A) at least 50%
of the Registrable Securities included in such offering or (B) all of
the Registrable Securities requested to be included by CNET, with the
remainder of the Registrable Securities in such offering being
allocated to NBCi and Kitze as a direct holder or as the beneficial
owner of Registrable Securities held by Disc as determined in good
faith by the mutual agreement of NBCi and Kitze, it being understood
that the current intention of such parties is that Kitze's allocation
will be in the range of 10% - 15% of the Underwritten Offering;
(ii) if any Registration Statement is proposed to be filed by
NBCi whether or not for sale for NBCi's own account during the six
month period after the Effective Date of the Initial CNET Demand,
Registrable Securities requested to be included by CNET will comprise
the lesser of (A) at least 25% of the Registrable Securities included
in such offering or (B) all of the Registrable Securities requested to
be included by CNET; PROVIDED that in no event will CNET be entitled
to include more than 1,000,000 Registrable Securities in such
offering; PROVIDED FURTHER that, (A) if the number of shares included
by CNET is 500,000 or less, then such inclusion shall be in addition
to the rights contained in this Section 3 and shall not be deemed the
exercise by CNET of one of its Demand Registrations and (B) if the
number of shares included by CNET is more than 500,000, then such
inclusion shall be deemed the exercise by CNET of one of its Demand
Registrations pursuant to this Section 3; and
(iii) except as provided in 3(c)(ii) above, following the Initial
CNET Demand, or, if no such demand is made, following the 60 day
period commencing on the closing date of the Contribution Agreement,
(A) Registrable Securities requested to be included by NBCi will
comprise the lesser of (1) at least 50% of the Registrable Securities
included in such offering or (2) all of the Registrable Securities
requested to be included by NBCi and (B) of the remaining securities
to
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be included in such Underwriting Offering, Registrable Securities
of each initiating Holder will be included PRO RATA on the basis of
the amount of Registrable Securities requested to be included therein
by each such Holder. Any remaining allocation available for sale
shall be allocated PRO RATA among the other Holders on the basis of
the amount of Registrable Securities requested to be included therein
by each such Holder.
(d) POSTPONEMENT OF DEMAND REGISTRATION. NBCi will be entitled to
postpone the obligation to file any Demand Registration for a reasonable
period of time not exceeding 90 calendar days (other than the Demand
Registration for the Initial CNET Demand which may be postponed for a
reasonable period of time not exceeding 60 calendar days, PROVIDED that NBCi
will file the Demand Registration for the Initial CNET Demand no later than
120 days following the date on which the Demand Notice is given, and the
Initial CNET Demand will not be subject to any additional Black-Out period
pursuant to Section 7) if NBCi's Board of Directors determines, in the good
faith exercise of its business judgment, that such registration and offering
would materially interfere with BONA FIDE financing plans or strategic
acquisition, disposition or alliance of NBCi that would require disclosure of
information, the premature disclosure of which could materially and adversely
affect NBCi. Notwithstanding the foregoing, in no event shall the aggregate
number of days during any period of 12 consecutive months during which the
Registering Holders are subject to (i) postponement pursuant to this Section
3(d), (ii) postponement pursuant to Section 2(d) and (iii) Black-Out pursuant
to Section 7 exceed 90 days ; PROVIDED, HOWEVER, that any postponement with
respect to an Initial CNET Demand shall be disregarded in determining the
aggregate number of days during any 12-month period. If NBCi postpones the
filing of a Registration Statement, it will promptly notify the Holders in
writing (i) when the events or circumstances permitting such postponement
have ended and (ii) that the decision to postpone was made by the Board of
Directors of NBCi in accordance with this Section 3(d).
Section 4. PIGGYBACK REGISTRATION.
(a) RIGHT TO PIGGYBACK. If at any time NBCi proposes to file a
Registration Statement whether or not for sale for NBCi's own account, on a
form and in a manner that would also permit registration of Registrable
Securities, including, without limitation, pursuant to Sections 2 and 3
hereof, NBCi shall give to Holders holding Registrable Securities, written
notice of such proposed filing at least thirty (30) days before the
anticipated filing. The notice referred to in the preceding sentence shall
offer Holders the opportunity to register such amount of Registrable
Securities as each Holder may request (a "PIGGYBACK REGISTRATION"). Subject
to Section 4(b), NBCi will include in each such Piggyback Registration all
Registrable Securities with respect to which NBCi has received written
requests for inclusion therein. The Holders will be permitted to withdraw
all or part of the Registrable Securities from a Piggyback Registration at
any time prior to the effective date of such Piggyback Registration.
NBCi will not be obligated to effect any registration of
Registrable Securities under this Section 4 as a result of the registration
of any of its securities in connection with mergers, acquisitions, exchange
offers, dividend reinvestment, transfers of assets,
8
reclassifications and share purchase plans offered solely to current holders
of Class A Common Stock, rights offerings or option or other employee benefit
plans.
(b) PRIORITY ON PIGGYBACK REGISTRATIONS. NBCi will cause the
managing underwriter or underwriters of a proposed Underwritten Offering on
behalf of NBCi to permit Holders to include therein all such Registrable
Securities requested to be so included on the same terms and conditions as
any securities of NBCi included therein. Notwithstanding the foregoing, if
the managing underwriter or underwriters of such Underwritten Offering
delivers an opinion to the Holders to the effect that (i) the total amount of
securities that such Holders and NBCi propose to include in such Underwritten
Offering or (ii) the effect of the potential withdrawal of any Registrable
Securities by any Holder (except any Holder who has theretofore waived such
Holder's right to withdraw all or part of its Registrable Securities pursuant
to Section 4(a)) prior to the effective date of the Registration Statement
relating to such Underwritten Offering, is such as to materially and
adversely affect the success of such offering, then the amount of securities
to be included therein for the account of Holders will, if necessary, be
reduced and there will be included in such Underwritten Offering the number
of Registrable Securities that, in the opinion of such managing underwriter
or underwriters, can be sold without materially and adversely affecting the
success of such Underwritten Offering. The securities of any Holder or
Holders of securities initiating the registration and NBCi shall receive
priority in such Underwritten Offering to the full extent of the Registrable
Securities such Holder or Holders and NBCi desire to sell and the remaining
allocation available for sale, if any, shall be allocated PRO RATA among the
other Holders on the basis of the amount of Registrable Securities requested
to be included therein by each such Holder; PROVIDED, HOWEVER, if any
Registration Statement is proposed to be filed by NBCi whether or not for
sale for NBCi's own account during the six month period after the Effective
Date of the Initial CNET Demand, Registrable Securities requested to be
included by CNET will comprise the lesser of (A) at least 25% of the
Registrable Securities included in such offering or (B) all of the
Registrable Securities requested to be included by CNET; PROVIDED that in no
event will CNET be entitled to include more than 1,000,000 Registrable
Securities in such offering; PROVIDED FURTHER that, (A) if the number of
shares included by CNET is 500,000 or less, then such inclusion shall be in
addition to the rights contained in this Section 3 and shall not be deemed
the exercise by CNET of one of its Demand Registrations and (B) if the number
of shares included by CNET is more than 500,000, then such inclusion shall be
deemed the exercise by CNET of one of its Demand Registrations pursuant to
this Section 3. The managing underwriter or underwriters, applying the same
standard, may also exclude entirely from such offering all Registrable
Securities proposed to be included in such offering to the extent the
Registrable Securities are not of the same class as securities of NBCi
included in such offering.
Section 5. REGISTRATION PROCEDURES. In connection with NBCi's
registration obligations pursuant to Sections 2, 3 and 4, NBCi will effect
such registrations to permit the sale of such Registrable Securities in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto NBCi will as soon as practicable, but in no event later than
45 days after delivery of the Demand Notice, or 90 days in the case of the
initial Demand Registration, and in each case to the extent applicable:
9
(a) prepare and file with the SEC a Registration Statement or
Registration Statements on any appropriate form under the Securities Act
available for the sale of the Registrable Securities by the Holders thereof
in accordance with the intended method or methods of distribution thereof,
and use its best efforts to cause each such Registration Statement to become
effective and remain effective as provided herein; PROVIDED, HOWEVER, that
before filing a Registration Statement or Prospectus or any amendments or
supplements thereto (including documents that would be incorporated or deemed
to be incorporated therein by reference) NBCi will furnish to the Holders
copies of all such documents proposed to be filed (but excluding schedules,
documents to be incorporated or deemed incorporated therein by reference and
exhibits, unless requested in writing by such Holders or their counsel),
which documents will be subject to the review of such Holders and any
underwriters, and NBCi will not file any such Registration Statement or
amendment thereto or any Prospectus or any supplement thereto (including such
documents that, upon filing, will be incorporated or deemed to be
incorporated by reference therein) to which any Holder of the Registrable
Securities covered by such Registration Statement or the managing
underwriter, if any, shall reasonably object on a timely basis;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary
to keep such Registration Statement effective as provided herein; cause the
related Prospectus to be supplemented by any required Prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force) under the Securities Act; and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable
period in accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement as so amended or in such
Prospectus as so supplemented;
(c) notify the selling Holders and the managing underwriters, if
any, promptly, and (if requested by any such person) confirm such notice in
writing, (i) when a Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to a Registration Statement or
any post-effective amendment, when the same has become effective, (ii) of any
request by the SEC or any other federal or state governmental authority for
amendments or supplements to a Registration Statement or related Prospectus
or for additional information, (iii) of the issuance by the SEC or any other
federal or state governmental authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) if at any time the representations and
warranties of NBCi contained in any agreement contemplated by Section 5(n)
(including any underwriting agreement) cease to be true and correct in any
material respect, (v) of the receipt by NBCi of any notification with respect
to the suspension of the qualification or exemption from qualification of any
of the Registrable Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose and (vi) of the occurrence
of any event that makes any statement made in such Registration Statement or
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference untrue in any material respect or that requires the
making of any changes in a Registration Statement, Prospectus or any such
document so that, in the case of the Registration Statement, it will not
contain any untrue statement of a material fact
10
or omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading and, in the case of the
Prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading;
(d) use every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement, or the
lifting of any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction, at the earliest possible moment;
(e) if requested by the managing underwriters, if any, or any
Holder of the Registrable Securities being registered, (i) promptly
incorporate in a Prospectus supplement or post-effective amendment such
information as the managing underwriters, if any, and such Holders agree
should be included therein as may be required by applicable law and (ii) make
all required filings of such Prospectus supplement or such post-effective
amendment as soon as practicable after NBCi have received notification of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment; PROVIDED, HOWEVER, that NBCi will not be required to take any
actions under this Section 5(e) that are not, in the opinion of counsel for
NBCi, in compliance with applicable law;
(f) furnish to each selling Holder and each managing underwriter,
if any, without charge, at least one conformed copy of the Registration
Statement and any post-effective amendment thereto, including financial
statements (but excluding schedules, all documents incorporated or deemed
incorporated therein by reference and all exhibits, unless requested in
writing by such Holder, such Holder's counsel or such underwriter);
(g) deliver to each selling Holder and the underwriters, if any,
without charge as many copies of the Prospectus or Prospectuses relating to
such Registrable Securities (including each preliminary prospectus) and any
amendment or supplement thereto as such persons may reasonably request; and
NBCi hereby consents to the use of such Prospectus or each amendment or
supplement thereto by each of the selling Holders and the underwriters, if
any, in connection with the offering and sale of the Registrable Securities
covered by such Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, to
register or qualify or cooperate with the selling Holders, the underwriters,
if any, and their respective counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of such
Registrable Securities for offer and sale under the securities or blue sky
laws of such jurisdictions within the United States as any seller or
underwriter reasonably requests in writing; use all reasonable efforts to
keep such registration or qualification (or exemption therefrom) effective
during the period the applicable Registration Statement is required to be
kept effective and do any and all other acts or things necessary or advisable
to enable the disposition in each such jurisdiction of the Registrable
Securities covered by the applicable Registration Statement; PROVIDED,
HOWEVER, that NBCi will not be required to (i)
11
qualify to do business in any jurisdiction where it is not then so qualified
or (ii) take any action that would subject it to service of process in any
such jurisdiction where it is not then so subject;
(i) cooperate with the selling Holders and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and enable such
Registrable Securities to be in such denominations and registered in such
names as the managing underwriters, if any, shall request at least two
business days prior to any sale of Registrable Securities to the underwriters;
(j) use all reasonable efforts to cause the Registrable Securities
covered by the applicable Registration Statement to be registered with or
approved by such other governmental agencies or authorities within the United
States except as may be required solely as a consequence of the nature of any
selling Holder's business, in which case NBCi will cooperate in all
reasonable respects with the filing of such Registration Statement and the
granting of such approvals as may be necessary to enable the seller or
sellers thereof or the underwriters, if any, to consummate the disposition of
such Registrable Securities;
(k) upon the occurrence of any event contemplated by Section
5(c)(vi), prepare a supplement or post-effective amendment to each
Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, such Prospectus will not
contain 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, in light of the circumstances under which they were made, not
misleading;
(l) use its best efforts to cause all Registrable Securities
covered by such Registration Statement to be either (i) listed on each
securities exchange, if any, on which similar securities issued by NBCi are
then listed or, if no similar securities issued by NBCi are then so listed,
on the New York Stock Exchange or another national securities exchange if the
securities qualify to be so listed or (ii) authorized to be quoted on Nasdaq
or the National Market System of Nasdaq, if the securities qualify to be so
quoted;
(m) as needed, (i) engage an appropriate transfer agent and provide
the transfer agent with printed certificates for the Registrable Securities
in a form eligible for deposit with The Depository Trust Company and (ii)
provide a CUSIP number for the Registrable Securities;
(n) enter into such customary agreements (including, in the event
of an Underwritten Offering, an underwriting agreement in form, scope and
substance as is customary in underwritten offerings) and take all such other
commercially reasonable and customary actions in connection therewith
(including, without limitation, entering into and causing its officers,
directors and affiliates to enter into customary lock-up agreements and
taking other actions reasonably requested by the initiating Holder or, if
none, the Holders holding a majority of the Registrable Securities being sold
or, in the event of an Underwritten Offering, those reasonably requested by
the managing underwriters) in order to expedite or facilitate the disposition
of such Registrable Securities and in such connection, whether or not an
underwriting agreement is
12
entered into and whether or not the registration is an underwritten
registration, (i) make such representations and warranties to the selling
Holders holding such Registrable Securities and the underwriters, if any,
with respect to the businesses of NBCi and its subsidiaries, the Registration
Statement, Prospectus and documents incorporated by reference or deemed
incorporated by reference therein, if any, in each case, in form, substance
and scope as are customarily made by issuers to underwriters in underwritten
offerings and confirm the same if and when requested; (ii) obtain opinions of
counsel to NBCi and updates thereof, which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the managing
underwriters, if any, and the initiating Holder or, if none, the Holders
holding a majority of the Registrable Securities being sold, addressed to
such selling Holder and each of the underwriters, if any, covering the
matters customarily covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested by such Holders and
underwriters; (iii) use reasonable efforts to obtain "comfort" letters and
updates thereof from the independent certified public accountants of NBCi
(and, if necessary, any other certified public accountants of any subsidiary
of NBCi or of any business acquired by NBCi for which financial statements
and financial data is, or is required to be, included in the Registration
Statement), addressed to each selling Holder and each of the underwriters, if
any, such letters to be in customary form and covering matters of the type
customarily covered in "comfort" letters in connection with underwritten
offerings; and (iv) deliver such documents and certificates as may be
reasonably requested by the initiating Holder or, if none, the Holders
holding a majority of the Registrable Securities being sold, and the managing
underwriters, if any, to evidence the continued validity of the
representations and warranties of NBCi and its subsidiaries made pursuant to
clause (i) above and to evidence compliance with any customary conditions
contained in the underwriting agreement or similar agreement entered into by
NBCi. The foregoing actions will be taken in connection with each closing
under such underwriting or similar agreement as and to the extent required
thereunder;
(o) make available for reasonable inspection during normal business
hours by a representative of the Holders holding Registrable Securities being
sold, any underwriter participating in any disposition of Registrable
Securities, and any attorney or accountant retained by such selling Holders
or underwriter, all financial and other records, pertinent corporate
documents and properties of NBCi and its subsidiaries, and cause the
officers, directors and employees of NBCi and its subsidiaries to supply all
information reasonably requested by any such representative, underwriter,
attorney or accountant in connection with such Registration Statement;
PROVIDED, HOWEVER, that any records, information or documents that are
designated by NBCi in writing as confidential at the time of delivery of such
records, information or documents will be kept confidential by such persons
unless (i) such records, information or documents are in the public domain or
otherwise publicly available, (ii) disclosure of such records, information or
documents is required by court or administrative order or is necessary to
respond to inquiries of regulatory authorities, or (iii) disclosure of such
records, information or documents, upon advice of counsel to such person, is
otherwise required by law (including, without limitation, pursuant to the
requirements of the Securities Act); PROVIDED FURTHER however that in the
case of (ii) or (iii) NBCi shall only be required to disclose that portion
which counsel advises NBCi is legally required and the Holders shall use
their commercially reasonable efforts (at NBCi's expense) to preserve the
confidentiality of such documents including, without limitation, by
cooperating with
13
NBCi to obtain an appropriate protective order or other reliable assurance
that confidentiality will be accorded and maintained to the maximum extent
possible;
(p) comply with all applicable rules and regulations of the SEC and
make generally available to its security holders earning statements
satisfying the provisions of Section 1l(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act) no
later than 45 calendar days after the end of any 12-month period (or 90
calendar days after the end of any 12-month period if such period is a fiscal
year) (i) commencing at the end of any fiscal quarter in which Registrable
Securities are sold to underwriters in a firm commitment or best efforts
Underwritten Offering, or (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter of NBCi,
after the effective date of a Registration Statement, which statements shall
cover said 12-month period;
(q) take any and all actions necessary to become eligible, and use
all reasonable efforts to remain eligible to file registration statements on
Form S-3 and do any and all other acts or things necessary or advisable to
comply with applicable rules and regulations regarding Form S-3, including,
but not limited to, making all filings required by the SEC and complying with
any and all time limits in connection therewith;
(r) use all reasonable efforts to file the reports required to be
filed by it under the Securities Act and the Exchange Act in a timely manner
and, if at any time NBCi is not required to file such reports, it will, upon
the request of any of the Holders of the Registrable Securities, make
publicly available other information so long as necessary to permit sales of
Registrable Securities pursuant to Rule 144 and 144A; will take such further
action as any Holder of the Registrable Securities may reasonably request,
all to the extent required from time to time to enable such Holder to sell
Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by Rules 144 and 144A; and upon the
request of any Holder shall deliver to the such Holder a written statement as
to whether it has complied with this paragraph (r); and
(s) in connection with any Underwritten Offering, cause
appropriate members of management, including, without limitation, NBCi's
Chief Executive Officer, to cooperate and participate on a reasonable basis
in the underwriters' "road show" conferences related to such offering.
Section 6. INFORMATION. NBCi may require each selling Holder of
Registrable Securities as to which any registration is being effected
pursuant to Section 2, 3 or 4 to furnish to NBCi such information regarding
the distribution of such Registrable Securities as NBCi may, from time to
time, reasonably request in writing and NBCi may exclude from such
registration the Registrable Securities of any selling Holder who
unreasonably fails to furnish such information within a reasonable time after
receiving such request. Each such selling Holder promptly will notify NBCi of
the occurrence of any event that makes any of such information untrue in any
material respect or that requires making a change in such information so that
it will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated or
14
necessary to make the statement therein, in light of the circumstances under
which they were made, not misleading.
Section 7. SUSPENSION. Each Holder will be deemed to have agreed by
virtue of its acquisition of Registrable Securities that, in connection with
any registrations of Registrable Securities effected pursuant to Section 2, 3
or 4, upon receipt of any notice from NBCi of the occurrence of any event of
the kind described in Section 5(c)(ii), 5(c)(iii), 5(c)(v) or 5(c)(vi)
("SUSPENSION NOTICE"), NBCi's obligation to cause any Registration Statement
to become effective or to amend or supplement such Registration Statement
shall be suspended and such Holder will forthwith discontinue disposition of
such Registrable Securities covered by such Registration Statement or
Prospectus (a "BLACK-OUT") until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 5(k), or until it
is advised in writing (the "ADVICE") by NBCi that the use of the applicable
Prospectus may be resumed, and such Holder has received copies of any
additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus. Except as expressly provided
herein, there shall be no limitation with regard to the number of Suspension
Notices that NBCi is entitled to give hereunder; PROVIDED, HOWEVER, that in
no event shall the aggregate number of days during any period of 12
consecutive months during which the Holders are subject to (i) postponement
pursuant to Section 2(d), (ii) postponement pursuant to Section 3(d) and
(iii) Black-Out pursuant to this Section 7 exceed 90 days ; PROVIDED,
FURTHER, that any postponement with respect to an Initial CNET Demand shall
be disregarded in determining the aggregate number of days during any
12-month period. In the event NBCi shall give a Suspension Notice, the time
period prescribed in Section 2 or Section 3 will be extended by the number of
days during the time period from and including the date of the giving of such
notice to and including the date when each seller of Registrable Securities
covered by such Registration Statement shall have received (x) the copies of
the supplemented or amended Prospectus contemplated by Section 5(k) or (y)
the Advice.
Section 8. REGISTRATION EXPENSES. Except as described in Section 3(b),
all fees and expenses incident to the performance of or compliance with this
Agreement by NBCi will be borne by NBCi whether or not any of the
Registration Statements become effective. Such fees and expenses will
include, without limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses for compliance with securities or "blue
sky" laws), (ii) printing expenses (including, without limitation, expenses
of printing certificates for Registrable Securities in a form eligible for
deposit with The Depository Trust Company and of printing a reasonable number
of prospectuses if the printing of such prospectuses is requested by any
Holder of Registrable Securities included in any Registration Statement),
(iii) messenger, telephone and delivery expenses incurred by NBCi, (iv) fees
and disbursements of counsel for NBCi incurred by NBCi, (v) fees and
disbursements of all independent certified public accountants referred to in
Section 5(n)(iii) (including the expenses of any special audit and "comfort"
letter required by or incident to such performance) incurred by NBCi, (vi)
Securities Act liability insurance, if any, if customarily incurred and (vii)
reasonable fees and expenses of one counsel retained by the Holders in
connection with the registration and sale of their Registrable Securities
(which counsel will be selected by the Holders of a majority of the
Registrable Securities being sold). In addition, NBCi will pay internal
expenses (including
15
without limitation all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit, the
fees and expenses incurred in connection with the listing of the securities
to be registered on any securities exchange or quotation system on which
similar securities issued by NBCi are then listed and the fees and expenses
of any person, including special experts, retained by NBCi. In no event,
however, will NBCi be responsible for any underwriting discount or selling
commission with respect to any sale of Registrable Securities pursuant to
this Agreement.
Section 9. INDEMNIFICATION.
(a) INDEMNIFICATION BY NBCI. NBCi will, without limitation as to
time, indemnify and hold harmless, to the fullest extent permitted by law,
each Holder holding Registrable Securities registered pursuant to this
Agreement, the officers, directors and agents and employees of each of them,
each person who controls such a Holder (within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act) and the officers,
directors, agents and employees of any such controlling person, from and
against all losses, claims, damages, liabilities, costs (including without
limitation the costs of investigation and attorneys' fees) and expenses
(collectively, "LOSSES"), as incurred, arising out of or based upon any
untrue or alleged untrue statement of a material fact contained in any
Registration Statement, Prospectus or form of Prospectus or in any amendment
or supplement thereto or in any preliminary prospectus, or arising out of or
based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as the same are based upon information furnished
in writing to NBCi by such Holder expressly for use therein.
(b) INDEMNIFICATION BY HOLDERS. In connection with any
Registration Statement in which a Holder is participating, such Holder will
furnish to NBCi in writing such information as NBCi reasonably requests for
use in connection with any Registration Statement, Prospectus or preliminary
prospectus and will indemnify, to the fullest extent permitted by law, NBCi,
its directors and officers, agents and employees, each person who controls
NBCi (within the meaning of Section 15 of the Securities Act and Section 20
of the Exchange Act), and the directors, officers, agents or employees of
such controlling persons, from and against all Losses, as incurred, arising
out of or based upon any untrue or alleged untrue statement of a material
fact contained in any Registration Statement, Prospectus or form of
Prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or based upon any omission or alleged omission
to state therein of a material fact required to be stated therein or
necessary to make the statements therein not misleading, to the extent, but
only to the extent, that such untrue statement or omission is contained in
any information so furnished in writing by such Holder to NBCi expressly for
use in such Registration Statement, Prospectus or preliminary prospectus and
was used by NBCi in the preparation of such Registration Statement,
Prospectus or preliminary prospectus. In no event will the liability of any
selling Holder hereunder be greater in amount than the dollar amount of the
proceeds (net of payment of all expenses) received by such Holder upon the
sale of the Registrable Securities giving rise to such indemnification
obligation.
16
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. If any person shall
become entitled to indemnity hereunder (an "INDEMNIFIED PARTY"), such
indemnified party shall give prompt notice to the party from which such
indemnity is sought (the "INDEMNIFYING PARTY") of any claim or of the
commencement of any action or proceeding with respect to which such
indemnified party seeks indemnification or contribution pursuant hereto;
PROVIDED, HOWEVER, that the failure to so notify the indemnifying party will
not relieve the indemnifying party from any obligation or liability except to
the extent that the indemnifying party has been prejudiced materially by such
failure. 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 mutually satisfactory to the parties; PROVIDED, HOWEVER, that an
indemnified party (together with all other indemnified parties which may be
represented without conflict by one counsel) shall have the right to retain
one separate 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 interest between such indemnified party and any
other party represented by such counsel in such proceeding. All fees and
expenses (including any fees and expenses incurred in connection with
investigating or preparing to defend such action or proceeding) will be paid
to the indemnified party, as incurred, within five calendar days of written
notice thereof to the indemnifying party (regardless of whether it is
ultimately determined that an indemnified party is not entitled to
indemnification hereunder). The indemnifying party will not consent to entry
of any judgment or enter into any settlement or otherwise seek to terminate
any action or proceeding in which any indemnified party is or could be a
party and as to which indemnification or contribution could be sought by such
indemnified party under this Section 9, unless such judgment, settlement or
other termination includes as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release, in form and
substance satisfactory to the indemnified party, from all liability in
respect of such claim or litigation for which such indemnified party would be
entitled to indemnification hereunder.
(d) CONTRIBUTION. If the indemnification provided for in this
Section 9 is unavailable to an indemnified party under Section 9(a) or 9(b)
in respect of any Losses or is insufficient to hold such indemnified party
harmless, then each applicable indemnifying party, in lieu of indemnifying
such indemnified party, will, severally but not jointly, contribute to the
amount paid or payable by such indemnified party as a result of such Losses,
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party or indemnifying parties, on the one hand, and such
indemnified party, on the other hand, in connection with the actions,
statements or omissions that resulted in such Losses as well as any other
relevant equitable considerations. The relative fault of such indemnifying
party or indemnifying parties, on the one hand, and such indemnified party,
on the other hand, will be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission of a material
fact, has been taken or made by, or related to information supplied by, such
indemnifying party or indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a
result of any Losses will be deemed to include any legal or other fees or
expenses incurred by such party in connection with any action or proceeding.
17
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 9(d) were determined by PRO RATA
allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 9(d), an
indemnifying party that is a selling Holder will not be required to
contribute any amount in excess of the amount by which the net proceeds which
the Registrable Securities sold by such indemnifying party and distributed to
the public were offered to the public exceeds the amount of any damages that
such indemnifying party has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
1l(f) of the Securities Act) will be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
The indemnity, contribution and expense reimbursement obligations
of NBCi hereunder will be in addition to any liability NBCi may otherwise
have hereunder or otherwise. The provisions of this Section 9 will survive
so long as Registrable Securities remain outstanding, notwithstanding any
permitted transfer of the Registrable Securities by any Holder thereof or any
termination of this Agreement.
Section 10. UNDERWRITTEN REGISTRATIONS.
(a) INITIAL CNET DEMAND. For the Demand Registration effecting the
Initial CNET Demand, CNET shall have the right to appoint the investment
banker or manager to act as lead underwriter for the Underwritten Offering,
PROVIDED that (i) such underwriter is a first-class, nationally recognized
underwriter who is prepared to underwrite the offering and (ii) NBCi has
given its prior written consent to the appointment, which consent shall not
be unreasonably withheld; PROVIDED that an underwriter's lack of commitment
to provide customary market-making and research support services to NBCi
following the offering would constitute a reasonable ground for NBCi to
withhold its consent. For the Demand Registration effecting the Initial CNET
Demand, NBCi shall have the right to appoint the investment banker or manager
to act as co-lead underwriter for the Underwritten Offering, PROVIDED that
such underwriter is a first-class, nationally recognized underwriter who is
prepared to underwrite the offering. The co-lead underwriters for the Demand
Registration effecting the Initial CNET Demand shall be treated equally in
terms of percentage of the gross underwriting spread. Further, CNET and NBCi
may each appoint one investment banker to act as co-manager for the
Underwritten Offering PROVIDED that (i) such manager is a first-class,
nationally recognized manager who is prepared to manage the offering and (ii)
NBCi has given its prior written consent to the appointment of the co-manager
by CNET, which consent shall not be unreasonably withheld; PROVIDED that a
co-manager's lack of commitment to provide customary market-making and
research support services to NBCi following the offering would constitute a
reasonable ground for NBCi to withhold its consent.
(b) OTHER DEMAND REGISTRATIONS. If any of the Registrable Securities
included in any Demand Registration other than the Initial CNET Demand are to be
sold in an Underwritten Offering, the Holders holding a majority of the
Registrable Securities included in the Demand Notice may select an investment
banker or investment bankers and manager or managers to
18
manage the Underwritten Offering. If any Piggyback Registration is an
Underwritten Offering, NBCi will have the exclusive right to select the
investment banker or investment bankers and managers to administer the
offering. Each party hereto agrees that, in connection with any Underwritten
Offering hereunder, it shall undertake to offer customary indemnification to
the participating underwriters. No Holder of Registrable Securities shall be
entitled to participate in an Underwritten Offering unless such Holder enters
into, and performs its obligations under, one or more underwriting agreements
and any related agreements and documents in the form that such Holder shall
agree to with the lead managing underwriter of the transaction. If any
Holder disapproves of the terms of any underwriting, it may elect, prior to
the execution of any underwriting agreement, to withdraw therefrom by written
notice to NBCi and the lead managing underwriter.
Section 11. MISCELLANEOUS.
(a) REMEDIES. In the event of a breach by any party of its
obligations under this Agreement, each party, in addition to being entitled
to exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. Each
party agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of any provision of this Agreement
and hereby further agrees that, in the event of any action for specific
performance in respect of such breach, it will waive the defense that a
remedy at law would be adequate.
(b) AMENDMENTS AND WAIVERS. The provisions of Section 2 of this
Agreement may only be amended, modified or supplemented with the prior
written consent of each of NBCi, NBC, CNET and Kitze, and each of their
respective transferees permitted under this Agreement, so long as such Holder
holds Registrable Securities with a market value of at least $50,000,000.
The provisions of Section 3 of this Agreement may only be amended, modified
or supplemented with the prior written consent of each of NBCi, NBC, CNET and
Kitze, and each of their respective transferees permitted under this
Agreement, so long as such Holder holds Registrable Securities with a market
value of at least $25,000,000. The provisions of Sections 1 and 4 through 11
of this Agreement may only be amended, modified or supplemented with the
prior written consent of each of NBCi, NBC, CNET and Kitze, and each of their
respective transferees, so long as such Holder holds Registrable Securities
with a market value of at least $5,000,000. Upon the effectuation of each
such amendment or waiver, NBCi shall as soon as reasonably practicable give
written notice thereof to the Holders who have not previously consented
thereto in writing.
(c) NOTICES. Except as set forth below, all notices and other
communications provided for or permitted hereunder shall be in writing and
shall be deemed to have been duly given if delivered personally or sent by
telex or telecopier, registered or certified mail (return receipt requested),
postage prepaid or courier or overnight delivery service to NBCi and each
Holder, respectively, at the following addresses (or at such other address
for any party as shall be specified by like notice, PROVIDED that notices of
a change of address shall be effective only upon receipt thereof):
19
If to NBCi: NBC Internet, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn.: General Counsel
Telecopy: (000) 000-0000
With copies to: Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxxx Xxxx Xxxx
Telecopy: (000) 000-0000
Xxxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxxx X. Xxxxxxxxxx
Telecopy: (000) 000-0000
If to CNET: CNET, Inc.
000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxxxxx X. Xxxxxxx, Chief Financial Officer
Telecopy: (000) 000-0000
With a copies to: CNET, Inc.
000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxxxx Xx Xxx, General Counsel
Telecopy: (000) 000-0000
Xxxxxx & Xxxx, L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn.: R. Xxxxxxx Xxxxxxx
Telecopy: (000) 000-0000
If to Disc or Kitze: Xxxxx Xxxxx
000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
20
If to NBC or GE Sub: National Broadcasting Company, Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxxx Xxxxxxxxx
Telecopy: (000) 000-0000
With a copy to: Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxxx Xxxxxxxxx, Esq.
Telecopy: (000) 000-0000
(d) MERGER OR CONSOLIDATION OF NBCI. If NBCi is a party to any
merger or consolidation pursuant to which the Registrable Securities are
converted into or exchanged for securities or the right to receive securities
of any other person ("CONVERSION SECURITIES"), the issuer of such Conversion
Securities shall assume (in a writing delivered to all Holders) all
obligations of NBCi hereunder. NBCi will not effect any merger or
consolidation described in the immediately preceding sentence unless the
issuer of the Conversion Securities complies with this Section 11(d).
(e) SUCCESSORS AND ASSIGNS. Any Holder may assign, in whole or in
part, any of its rights and obligations hereunder to any person who acquires
from such Holder at least $5 million worth of such Holder's Registrable
Securities (calculated based on the average closing price of such securities
on the principal securities exchange or quotation system where such
securities are listed on the five business days immediately preceding the
date of such assignment); PROVIDED, HOWEVER, that any rights pursuant to
Section 2 of this Agreement can only be assigned to (i) a person who acquires
at least $50 million of such Holder's Registrable Securities (calculated as
aforesaid), (ii) a person, in whole and not in part, and (iii) a person who
is not a Newco Competitor, as such term is defined in the Brand Integration
and License Agreement, dated as of May 8, 1999, between NBC Multimedia, Inc.
and NBC or, with respect to an assignment by CNET, a person (including a
Newco Competitor) who has acquired all or substantially all of the stock or
assets of CNET through merger, stock purchase, asset sale or otherwise;
PROVIDED that in the event of such an assignment by CNET, (i) such assignee
shall not have the right to cause an Initial CNET Demand, and (ii) the number
of days for which a Shelf Registration that registers only such assignee's
shares (and/or shares issuable by NBCi) may be postponed or Blacked-Out shall
be increased from 90 days to 180 days. Any transferee of all or a portion of
the Registrable Securities shall assume all of the rights and obligations of
a Holder hereunder to the extent it agrees in writing, to be bound by all of
the provisions applicable hereunder to the transferring Holder (such
acknowledgment being evidenced by execution of a Counterpart and
Acknowledgment substantially in the form of EXHIBIT A). Subject to the
requirements of this Section 11(e), this Agreement shall inure to the benefit
of and be binding upon the successors and assigns of the parties hereto.
21
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed will be deemed to be an original and all of which
taken together will constitute one and the same instrument.
(g) HEADINGS. The headings in this Agreement are for convenience
of reference only and will not limit or otherwise affect the meaning.
(h) GOVERNING LAW. This agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts executed and performed within such State.
(i) SEVERABILITY. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein will remain in full force and effect and will
in no way be affected, impaired or invalidated, and the parties hereto will
use their best efforts to find and employ an alternative means to achieve the
same or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and declared to
be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such
which may be hereafter declared invalid, void or unenforceable.
(j) TERMINATION. This Agreement shall terminate with respect to
each Holder and transferee permitted under this Agreement, including, without
limitation, any rights of such Holder or transferee pursuant to Section
11(b), on the date upon which such Holder or transferee shall be able to
dispose of all of their remaining Registrable Securities in one day without
registration pursuant to Rules 144 or 145 of the Securities Act.
(k) ENTIRE AGREEMENT. This Agreement is intended by the parties
as a final expression of their agreement and intended to be the complete and
exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein, with respect to such subject matter. This
Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
[SIGNATURE PAGE FOLLOWS]
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
NBC Internet, Inc.
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Chief Executive Officer
National Broadcasting Company, Inc.
By: /s/ Xxxx X. Xxxxx
--------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President
GE Investments Subsidiary, Inc.
By: /s/ Xxxxxx X. Healing
--------------------------------
Name: Xxxxxx X. Healing
Title: Vice President
CNET, Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President
and Chief Financial Officer
23
Flying Disc Investments Limited Partnership
By: /s/ Xxxxx Xxxxx
--------------------------------------
Name: Xxxxx Xxxxx
Title: General Manager
/s/ Xxxxx Xxxxx
-----------------------------------------
Xxxxx Xxxxx
24
EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
COUNTERPART AND ACKNOWLEDGMENT
TO: NBC Internet, Inc.
RE: The Registration Rights Agreement (the "Agreement") dated as of
November 30, 1999, by and among NBCi and the Holders (as defined
in the Agreement)
The undersigned hereby agrees to be bound by the terms of the
Agreement as a party to the Agreement, and shall be entitled to all benefits
of the Holders (as defined in the Agreement) and shall be subject to all
obligations and restrictions of the Holders pursuant to the Agreement, as
fully and effectively as though the undersigned had executed a counterpart of
the Agreement together with the other parties to the Agreement. The
undersigned hereby acknowledges having received and reviewed a copy of the
Agreement.
DATED this _____ day of ____________, _____
-----------------------------------------------
By:
-------------------------------------------
Title:
-----------------------------------------
Number of
Shares of
Registrable Securities:
-------------------
25
