EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made and
entered into as of January 30, 2004, by and between RealNetworks, Inc., a
Washington corporation ("PARENT"), and Xxxx Xxxxxxx (the "SHAREHOLDER
REPRESENTATIVE"), as agent for the shareholders listed on SCHEDULE A hereto (the
"SHAREHOLDERS") pursuant to SECTION 7.2 of the Acquisition Agreement (as defined
below).
RECITALS
A. Pursuant to the Agreement and Plan of Merger dated as of
January 26, 2004 (the "ACQUISITION AGREEMENT") by and among Parent, Bakery
Acquisition Corp., a Washington corporation and wholly-owned subsidiary of
Parent (the "MERGER SUB"), GameHouse, Inc., a Washington corporation (the
"COMPANY"), the Shareholder Representative and certain other parties thereto,
such parties thereto have agreed, subject to the terms and conditions set forth
therein, to merge Merger Sub with and into the Company (the "MERGER") upon the
terms and subject to the conditions described in the Acquisition Agreement.
B. Subject to Section 1.14 of the Acquisition Agreement, the
Shareholders desire to have liquidity with respect to the Parent Common Stock
(as defined in the Acquisition Agreement) they receive in the Merger in exchange
for their shares of the Company Common Stock (as defined in the Acquisition
Agreement).
C. Parent desires to grant each of the Shareholders registration
rights as provided herein.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and agreements herein contained, Parent and the Shareholder
Representative, on behalf of the Shareholders, agree as follows:
1. Definitions of Certain Terms. As used herein, the following
terms shall have the following meanings. Capitalized terms used but not
otherwise defined in this Agreement shall have the meanings given to them in the
Acquisition Agreement.
(a) "BUSINESS DAY" means any day other than a Saturday or
Sunday or a day on which banks in Seattle, Washington are closed.
(b) "CLOSING DATE" means the Closing Date as defined in
ARTICLE I of the Acquisition Agreement.
(c) "EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended, and the rules and regulations of the SEC issued thereunder, as
they may be in effect from time to time.
(d) "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 SEC which
similarly permits inclusion or incorporation of substantial information by
reference to other documents filed by Parent with the commission.
(e) "HOLDER" means any Shareholder holding Registrable
Shares and any other person or entity holding Registrable Shares to whom the
registration rights granted in this Agreement have been transferred pursuant to
SECTION 8.
(f) "REGISTRABLE SHARES" means the shares of Parent
Common Stock issued to the Shareholders pursuant to SECTION 1.7(a)(ii) of the
Acquisition Agreement that are not subject to the restrictions on transfer set
forth in SECTION 1.14 of the Acquisition Agreement, and any other securities
issued by Parent as a dividend or other distribution with respect to, or in
exchange for or in replacement of, such shares; provided, however, Registrable
Shares shall not include shares of Parent Common Stock that have been disposed
of pursuant to a registration statement under the Securities Act (including the
Shelf Registration contemplated by this Agreement) or that can be sold in any
consecutive ninety (90) day period without registration in accordance with Rule
144 of the Securities Act.
(g) "SEC" means the United States Securities and Exchange
Commission, or any governmental agency succeeding to its functions.
(h) "SECURITIES ACT" means the Securities Act of 1933, as
amended, and the rules and regulations of the SEC issued thereunder, as they may
be in effect from time to time.
(i) "TERMINATION DATE" means, subject to any extension of
time pursuant to SECTION 4(d), 5:00 PM Seattle time on the one-year anniversary
of the date on which the Shelf Registration is declared effective by the SEC.
2. Shelf Registration. Parent agrees that it shall use its
commercially reasonable efforts to cause to be filed as soon as practicable
following Parent's filing of its annual report on Form 10-K for the fiscal year
ended December 31, 2003 a registration statement (the "SHELF REGISTRATION") on
Form S-3 under the Securities Act for an offering to be made on a delayed or
continuous basis pursuant to Rule 415 thereunder or any similar rule that may be
adopted by the SEC and permitting sales in ordinary course brokerage or dealer
transactions not involving any underwritten public offering, covering all of the
Registrable Shares. Parent shall use commercially reasonable efforts thereafter
to cause the Shelf Registration to be declared effective by the SEC as promptly
as practicable. Parent may postpone the filing or the effectiveness of the Shelf
Registration for a period of up to ninety (90) days if Parent determines in good
faith that the filing or effectiveness of the Shelf Registration would require
the disclosure of information that could be materially detrimental to Parent or
its shareholders; provided, however, that Parent shall not be required to
disclose such information to the Holders or the Shareholder Representative.
Subject to SECTIONS 3 and 4, Parent shall use commercially reasonable efforts to
keep the Shelf Registration continuously effective until the earlier to occur of
(A) the Termination Date and (B) the first date on which no Registrable Shares
originally covered by the Shelf Registration shall constitute Registrable
Shares.
3. Registration Procedures. After Parent commences the
registration of the Registrable Shares pursuant to the Shelf Registration,
Parent shall take commercially reasonable actions to
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permit registration and sale of the Registrable Shares pursuant to the Shelf
Registration, including the following:
(a) notify the Holders of the filing of the Shelf
Registration and each amendment and supplement thereto and furnish to the
Holders such number of copies of the Shelf Registration, each amendment and
supplement thereto (in each case including all exhibits thereto), the prospectus
included in the Shelf Registration (including any preliminary prospectus) and
such other documents as the Holders may reasonably request in order to
facilitate the disposition of the Registrable Shares owned by the Holders;
(b) use commercially reasonable efforts to register or
qualify such Registrable Shares under such other securities or "blue sky" laws
of such jurisdictions as the Shareholder Representative reasonably requests in
writing and to do any and all other acts and things that may be reasonably
necessary or advisable to register or qualify for sale in such jurisdictions the
Registrable Shares owned by the Holders; provided, however, that Parent shall
not be required (i) to qualify to do business in any jurisdiction where it is
not then so qualified or (ii) to consent to general service of process in any
jurisdiction where it is not then so subject to service of process;
(c) use commercially reasonable efforts as promptly as
practicable to cause all Registrable Shares covered by the Shelf Registration to
be listed on the Nasdaq Stock Market or other securities exchange or market, if
any, on which similar securities issued by Parent are then listed; and
(d) use commercially reasonable efforts to file with the
SEC in a timely manner all reports or other documents required of Parent under
the Securities Act and Exchange Act.
4. Stop Order; Amendment of Prospectus.
(a) Parent will notify the Holders promptly of (i) the
issuance of any stop order suspending the effectiveness of the Shelf
Registration or (ii) the receipt by Parent of any notification with respect to
the suspension of the qualification of the Registrable Shares for sale in any
jurisdiction. Immediately upon receipt of any such notice, the Holders shall
cease to offer and sell any Registrable Shares pursuant to the Shelf
Registration in the jurisdiction to which such stop order or suspension relates.
Parent shall use commercially reasonable efforts to prevent the issuance of any
such stop order or the suspension of any such qualification and, if any such
stop order is issued or any such qualification is suspended, to obtain as soon
as possible the withdrawal or revocation thereof, and will notify the Holders at
the earliest practicable date of the date on which the Holders may offer and
sell Registrable Shares pursuant to the Shelf Registration.
(b) Parent will notify the Holders promptly if Parent is
in possession of material non-public information that an executive officer of
Parent determines in good faith should not be disclosed because it would be
materially detrimental to Parent or its shareholders but would otherwise be
required to be set forth in the prospectus used in connection with the Shelf
Registration (the "PROSPECTUS"); provided, however, that Parent shall not be
required to disclose such event or facts, or the nature thereof, to the Holders
or the Shareholder Representative. Immediately upon receipt of such notice, the
Holders shall cease to offer or sell any Registrable Shares pursuant to the
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Prospectus, cease to deliver or use such Prospectus and, if so requested by
Parent, return to Parent, at Parent's expense, all copies (other than permanent
file copies) of such Prospectus. Promptly after Parent determines that the
information may be included in an amendment or supplement to any Prospectus,
Parent will use commercially reasonable efforts to amend or supplement the
Prospectus as promptly as practicable in order to set forth or reflect such
event or state of facts. In the event that an executive officer of Parent
determines in good faith that the disclosure of such information would be
materially detrimental to Parent or its shareholders, Parent shall be permitted
to delay the filing of such an amendment or supplement to such Prospectus for a
period of time to extend no longer than one hundred twenty (120) days. Parent
will promptly furnish copies of such amendment or supplement to such Prospectus
to the Holders and notify Holders when trading may once again commence.
(c) Holders that are employees of Parent or any
subsidiary of Parent shall be subject to Parent's Policy on Avoidance of Xxxxxxx
Xxxxxxx.
(d) In the event Holders are prevented from selling
Registrable Shares through the Shelf Registration as a result of SECTION 4(b),
then the Termination Date of the Shelf Registration shall be extended by the
number of days that Holders are prevented from making sales under the Shelf
Registration as a result of SECTION 4(b).
5. Information Concerning the Holders; Termination of Use of
Shelf Registration.
(a) The obligations of Parent to take the actions
contemplated by SECTIONS 2 and 3 with respect to an offering of Registrable
Shares shall be subject to the condition that each Holder shall (i) conform to
all applicable requirements of the Securities Act and the Exchange Act with
respect to the offering and sale of securities and (ii) advise each underwriter,
broker or dealer through which any of such Registrable Shares are offered that
such Registrable Shares are part of a distribution that is subject to the
prospectus delivery requirements of the Securities Act. Each Holder shall
furnish to Parent in writing such information and furnish such documents as may
be reasonably required by Parent in the preparation of (A) a Prospectus (or any
amendment or supplement thereto) with respect to any offering of Registrable
Shares and (B) any qualification of such Registrable Shares under state
securities or "blue sky" laws pursuant to SECTION 3(b), and shall promptly
notify Parent of the occurrence, from the date on which such information or
documents are furnished to the date of the closing for the sale of such
Registrable Shares, of any event relating to such Holder that is required under
the Securities Act to be set forth in such Prospectus (or any amendment or
supplement thereto).
(b) The rights of the Holders to sell Registrable Shares
pursuant to the Shelf Registration shall terminate on the Termination Date (as
adjusted pursuant to SECTION 4(d)).
6. Expenses of Registration. Parent shall pay all reasonable
expenses incident to its performance of or compliance with this Agreement and
registration of Registrable Shares in connection herewith, including (a) all
SEC, stock exchange or market and National Association of Securities Dealers,
Inc. registration and filing fees, (b) all fees and expenses incurred in
complying with securities or "blue sky" laws, (c) all printing, messenger and
delivery expenses and (d) all fees and disbursements of Parent's independent
public accountants and counsel (all of such expenses
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herein referred to as "REGISTRATION EXPENSES"). The Registration Expenses shall
not include (and Parent shall not be responsible for) any legal fees of the
Holders or any sales or underwriting discounts, commissions or fees attributable
to the sale of the Registrable Shares, which shall be borne by the Holders.
7. Indemnification and Contribution.
(a) Parent agrees to indemnify, to the extent permitted
by law and subject to the terms of this Agreement, each Holder and its
directors, officers, partners, members, employees and agents and each person, if
any, who controls such Holder or other person (within the meaning of the
Securities Act) against any losses, claims, damages, liabilities and expenses
(including reasonable attorneys' fees) arising out of or based upon any untrue
or alleged untrue statement of a material fact contained in the Shelf
Registration (or any amendment thereto) or a Prospectus (or any amendment or
supplement thereto) or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
made therein in the light of the circumstances under which they were made not
misleading; provided, however, that Parent shall not be liable to any Holder or
its directors, officers, partners, members, employees or agents or each person,
if any, who controls such Holder or other person (within the meaning of the
Securities Act) (i) to the extent that any such loss, claim, damage, liability
or expense arises out of, or is based upon any untrue or alleged untrue
statement, or any omission, if such statement or omission shall have been made
in reliance upon and in conformity with information relating to such Holder or
person furnished in writing to Parent by such Holder or person expressly for use
in the preparation of the Shelf Registration (or any amendment thereto) or such
Prospectus (or any amendment or supplement thereto), (ii) if a copy of any
Prospectus (or any amendment thereto) relating to the Shelf Registration was not
sent or given by or on behalf of such Holder to a purchaser of the Holder's
Registrable Shares, if required by law so to have been delivered, at or prior to
the written confirmation of the sale of the Registrable Shares to such
purchaser, and if such Prospectus (as so amended or supplemented) would have
cured the defect giving rise to such loss, claim, damage or liability and a copy
of such Prospectus was delivered to such Holder, or (iii) to the extent such
loss, claim, damage, liability or expense arises out of or is based upon a
purported transfer of Registrable Shares at a time when transfers pursuant to
the Registration Statement have been prohibited pursuant to SECTION (4)(a), 4(b)
or 4(c).
(b) In connection with the Shelf Registration, each
Holder, severally and not jointly, will indemnify, to the extent permitted by
law and subject to the terms of this Agreement, Parent, its directors, officers,
employees and agents and each person who controls Parent (within the meaning of
the Securities Act) against any losses, claims, damages, liabilities and
expenses (including reasonable attorneys' fees) arising out of or based upon any
untrue or alleged untrue statement of a material fact contained in the Shelf
Registration (or any amendment thereto) or a Prospectus (or any amendment or
supplement thereto) or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
made therein in the light of the circumstances under which they were made not
misleading, to the extent that such untrue statement or omission was made in
reliance upon and in conformity with information furnished in writing to Parent
by such Holder expressly for use in the preparation of the Shelf Registration
(or any amendment thereto) or a Prospectus (or any amendment or supplement
thereto); provided, that the liability of each Holder hereunder shall be limited
to the proportion of any such
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loss, claim, damage, liability or expense which is equal to the proportion that
the public offering price of the shares by such Holder under such registration
statement bears to the total public offering price of all securities sold
thereunder, but not in any event to exceed the gross proceeds received by such
Holder.
(c) Each party entitled to indemnification under this
SECTION 7 (the "INDEMNIFIED PARTY") shall give notice to the party required to
provide indemnification (the "INDEMNIFYING PARTY") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom; provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not be
unreasonably withheld or delayed); and provided, further, that the delay or
failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this SECTION 7, except
to the extent that the Indemnifying Party shall have been materially adversely
affected by such delay or failure. The Indemnified Party may participate in such
defense at the Indemnified Party's expense; provided, however, that the
Indemnifying Party shall pay any such reasonable expense if the Indemnified
Party shall have reasonably concluded that there may be a conflict between the
positions of the Indemnifying Party and the Indemnified Party in conducting the
defense of any such claim or litigation resulting therefrom. No Indemnified
Party shall consent to entry of any judgment or settle any claim or litigation
without the prior written consent of the Indemnifying Party.
(d) If the indemnification provided for in this SECTION 7
from the Indemnifying Party is unavailable to an Indemnified Party hereunder in
respect of any losses, claims, damages, liabilities or expenses referred to
therein as a result of a judicial determination that such indemnification may
not be enforced in such case notwithstanding this Agreement, the Indemnifying
Party, in lieu of indemnifying such Indemnified Party, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such losses,
claims, damages, liabilities or expenses in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Party and Indemnified Party in
connection with the actions which resulted in such losses, claims, damages,
liabilities or expense, as well as any other relevant equitable considerations.
The relative fault of such Indemnifying Party and Indemnified Party shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of material fact or omission or
alleged omission to state a material fact, has been made by, or relates 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; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation and no Holder will be required to
contribute any amount in excess of the public offering price of all such
Registrable Shares offered by it pursuant to such Shelf Registrations.
8. Transfer of Registration Rights. The registration rights of
any Holder (and of any transferee of any Holder or its transferees) under this
Agreement with respect to any Registrable Shares may be transferred to any
transferee who is a partner, member or shareholder of a Holder that is a
partnership, limited liability company or corporation, respectively; provided
that Parent is given
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written notice by the Holder at the time of such transfer stating the name and
address of the transferee and identifying the Registrable Shares with respect to
which the rights under this Agreement are being assigned and such transferee
executes and delivers such agreements as Parent may reasonably require in order
to confirm that such transferee agrees to be bound by this Agreement.
9. Amendment of Registration Rights. This Agreement may not be
amended, modified or supplemented by the parties hereto in any manner, except by
a written instrument that is signed by Parent and the Shareholder
Representative.
10. Termination. This Agreement shall terminate at the earlier of
(i) 5:00 PM Seattle time on the Termination Date and (ii) the first date on
which all Registrable Shares originally covered by the Shelf Registration shall
no longer constitute Registrable Shares. Upon termination of this Agreement,
Parent may terminate the Shelf Registration. Notwithstanding the termination of
this Agreement, the provisions of SECTIONS 1, 6, 7, 10, 12, 13, 14, 15, 16, 17
and 18 shall survive such termination.
11. Grant of Additional Registration Rights. The Holders
acknowledge that Parent may grant registration rights to other persons and
entities in Parent's sole and absolute discretion.
12. No Waiver. The terms and conditions of this Agreement may be
waived only by a written instrument that is (a) signed by the Shareholder
Representative in the case where a Holder or the Shareholder Representative is
waiving compliance and (b) signed by Parent in the case where Parent is waiving
compliance. The failure of any party hereto to enforce at any time any of the
provisions of this Agreement shall in no way be construed to be a waiver of any
such provision, nor in any way to affect the validity of this Agreement or any
part hereof or the right of such party thereafter to enforce each and every such
provision. No waiver of any breach of or non-compliance with this Agreement
shall be held to be a waiver of any other or subsequent breach or
non-compliance. The rights and remedies herein provided are cumulative and are
not exclusive of any rights or remedies that any party may otherwise have at law
or in equity.
13. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Washington,
regardless of the other laws that might govern under applicable principles of
conflicts of laws thereof.
14. Notice. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered by hand, sent by facsimile
transmission with confirmation of receipt, sent via a reputable overnight
courier service with confirmation of receipt requested, or mailed by registered
or certified mail (postage prepaid and return receipt requested) to the parties
at the following addresses (or at such other address for a party as shall be
specified by like notice), and shall be deemed given on the date on which
delivered by hand or otherwise on the date of receipt as confirmed:
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if to Parent:
RealNetworks, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx
Attn: Xxxxxxx X. Xxxxxxxxxx and Xxxxxxxxx Xxxxxxxx
Telecopy No.: (000) 000-0000
if to the Holders or the Shareholder Representative:
Xxxx Xxxxxxx
0000 Xxxxxxxxx 000xx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxx XxXxxxxxxx, P.S.
000 X Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telecopy No.: (000) 000-0000
15. Construction of Agreement. A reference to a Section or
Schedule shall mean a Section in or Schedule to this Agreement unless otherwise
expressly stated. The titles and headings herein are for reference purposes only
and shall not in any manner limit the construction of this Agreement which shall
be considered as a whole. The words "include," "includes" and "including" when
used herein shall be deemed in each case to be followed by the words "without
limitation."
16. Entire Agreement, Assignability, etc. This Agreement and the
Acquisition Agreement and the documents and other agreements among the parties
hereto and thereto as contemplated by or referred to herein or therein
constitute the entire agreement among the parties with respect to the subject
matter hereof and supersede in their entirety all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns. This Agreement is not intended to confer upon any person other than the
parties hereto and the Shareholders any rights or remedies hereunder, except as
otherwise expressly provided herein and shall not be assignable by operation of
law or otherwise, except by Parent upon an acquisition of Parent or by a Holder
as provided in SECTION 8.
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17. Validity. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, each of which shall remain in full force and
effect.
18. Counterparts. This Agreement may be executed in one or more
counterparts, all of which together shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, the parties have executed or caused this
Registration Rights Agreement to be executed by their duly authorized respective
officers (as applicable) as of the date first written above.
REALNETWORKS, INC.
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President, Legal and Business
Affairs, General Counsel and Corporate
Secretary
SHAREHOLDER REPRESENTATIVE
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
SIGNATURE PAGE - REGISTRATION RIGHTS AGREEMENT
SCHEDULE A
SHAREHOLDERS
Xxxxxx Xxxxxx
Xxxxx Xxxxxx
Xxx Xxxxxxxx
Xxxx Xxxxxxx
Xxxxxxx X. Xxxxx
Xxxxx X. Xxxxxxxx
Xxx Xxxxxx
Xxxx X. Xxxx
Xxxxx X. Xxxx
Xxxx Xxxxxxxx
