Registration Rights Agreement - Convera Corp. and NBA Media Ventures LLC
FORM OF REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and entered
into as of __________, 2000 by and between Convera Corporation, a Delaware
corporation (the "Company"), and NBA Media Ventures, LLC, a Delaware limited
liability company ("NBAMV").
R E C I T A L S
A. Concurrently with the execution of this Agreement, NBAMV is
acquiring from the Company shares of the Company's Class A Common Stock, par
value $.01 per share (together with shares of the Company's non-voting Class B
Common Stock, $.01 par value per share, the "Common Stock") pursuant to a
Contribution Agreement dated September 13, 2000 (the "Contribution Agreement")
between the Company and NBAMV.
B. The Contribution Agreement provides that NBAMV shall be granted
certain registration rights, as all more fully set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
promises hereinafter set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. REGISTRATION RIGHTS.
1.1 Definitions. For purposes of this Section 1:
(a) Registration. The terms "register," "registered," and
"registration" refer to a registration effected by preparing and filing a
registration statement in compliance with the Securities Act of 1933, as
amended, (the "Securities Act"), and the declaration or ordering of
effectiveness of such registration statement.
(b) Registrable Securities. The term "Registrable Securities"
means: (1) any Common Stock issued to NBAMV pursuant to the Contribution
Agreement and (2) any shares of Common Stock issued as (or issuable upon the
conversion or exercise of any warrant, right or other security which is issued
as) a dividend or other distribution with respect to, or in exchange for or in
replacement of, any shares of Common Stock described in clauses (1) or (2) of
this subsection (b). Notwithstanding the foregoing, "Registrable Securities"
shall exclude any Registrable Securities sold by a person in a transaction in
which rights under this Section 1 are not assigned in accordance with this
Agreement or any Registrable Securities sold in a public offering, whether sold
pursuant to Rule 144 promulgated under the Securities Act, or in a registered
offering, or otherwise.
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(c) Registrable Securities Then Outstanding. The number of
shares of "Registrable Securities then outstanding" shall mean the number of
shares of Common Stock that are Registrable Securities and are then issued and
outstanding.
(d) Holder. For purposes of this Agreement, the term "Holder"
means NBAMV with respect to Registrable Securities beneficially owned by NBAMV
that have not been sold to the public or pursuant to Rule 144 promulgated under
the Securities Act and any permitted assignee of record of such Registrable
Securities to whom rights under this Section 1 have been duly assigned in
accordance with this Agreement.
(e) Form S-3. The term "Form S-3" means such form under the
Securities Act as is in effect on the date hereof or any successor registration
form under the Securities Act subsequently adopted by the SEC which permits
inclusion or incorporation of substantial information by reference to other
documents filed by the Company with the SEC.
(f) SEC. The term "SEC" or "Commission " means the U.S.
Securities and Exchange Commission.
(g) Trigger Event. The term "Trigger Event" shall mean the
creation, incurrence, assumption or guarantee, directly or indirectly, by the
Company, of Indebtedness in excess of $500,000,000 in the aggregate. For
purposes of this provision, "Indebtedness" means, without limitation, (i) all
indebtedness for borrowed money, (ii) that portion of obligations with respect
to capital leases that is properly classified as a liability on a balance sheet
in conformity with generally accepted accounting principles, (iii) notes payable
and drafts accepted representing extensions of credit whether or not
representing obligations for borrowed money, (iv) any obligation owed for all or
any part of the deferred purchase price of property or services, which purchase
price is (a) due more than six months from the date of incurrence of the
obligation in respect thereof or (b) evidenced by a note or similar written
instrument (excluding any trade payables payable in the ordinary course of
business), (v) all indebtedness secured by any lien on any property or asset
owned or held by the Company regardless of whether the indebtedness secured
thereby shall have been assumed or is nonrecourse and (vi) any direct or
indirect liability, contingent or otherwise, (a) with respect to any
Indebtedness, lease, dividend or other obligations of another person if the
primary purpose or intent is to provide assurance to the obligee of such
obligation of another person that such obligation will be protected (in whole or
in part) against loss in respect thereof, (b) with respect to any letter of
credit issued for the account of the Company or as to which the Company is
otherwise liable for reimbursement of drawings, or (c) under interest rate
agreements and currency agreements.
(h) "Intel Registration Rights Agreement" shall mean the
Registration Rights Agreement dated__________ by and between the Company and
Intel attached hereto as Exhibit __.
(i) "Intel Holder" shall mean any person or entity defined as a
Holder under the Intel Registration Rights Agreement.
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(j) "Intel Registrable Securities" shall mean any securities of
the Company defined as Registrable Securities under the Intel Registration
Rights Agreement.
1.2 Demand Registration.
(a) Request by Holders. Subject to the provisions of Section
1.2(c), NBAMV shall be entitled to request in writing that the Company file a
registration statement under the Securities Act covering the registration of
Registrable Securities pursuant to this Section 1.2, and the Company shall,
within ten (10) business days of the receipt of such written request, give
written notice of such request ("Request Notice") to all Holders, and use its
best efforts to effect, as soon as practicable, the registration under the
Securities Act of all Registrable Securities that Holders request to be
registered and included in such registration by written notice given such
Holders to the Company within twenty (20) days after receipt of the Request
Notice, subject only to the limitations of this Section 1.2; provided that the
Company shall not be obligated to effect any such registration if the Company
has, within the six (6) month period preceding the date of such request, already
effected a registration under the Securities Act pursuant to this Section 1.2 or
Section 1.4, or in which the Holders had an opportunity to participate pursuant
to the provisions of Section 1.3, other than a registration from which the
Registrable Securities of Holders have been excluded (with respect to all or any
portion of the Registrable Securities the Holders requested be included in such
registration) pursuant to the provisions of Section 1.3(a).
(b) Underwriting. If the Holders initiating the registration
request under this Section 1.2 ("Initiating Holders") intend to distribute the
Registrable Securities covered by their request by means of an underwriting,
then they shall so advise the Company as a part of their request made pursuant
to this Section 1.2 and the Company shall include such information in the
written notice referred to in subsection 1.2(a). In such event, the right of any
Holder to include its, his or her Registrable Securities in such registration
shall be conditioned upon such Holder's participation in such underwriting and
the inclusion of such Holder's Registrable Securities in the underwriting
(unless otherwise mutually agreed by a majority in interest of the Initiating
Holders and such Holder) to the extent provided herein. All Holders proposing to
distribute their Registrable Securities through such underwriting shall enter
into an underwriting agreement in customary form with the managing underwriter
or underwriters selected for such underwriting by the Holders of a majority of
the Registrable Securities being registered and reasonably acceptable to the
Company (including a market stand-off agreement of up to 180 days if required by
such underwriter or underwriters). Notwithstanding any other provision of this
Section 1.2, if the underwriter(s) advise(s) the Company in writing that
marketing factors require a limitation of the number of securities to be
underwritten then the Company shall so advise all Holders of Registrable
Securities which would otherwise be registered and underwritten pursuant hereto,
and the number of Registrable Securities that may be included in the
underwriting shall be reduced as required by the underwriter(s) and allocated
among the Holders of Registrable Securities on a pro rata basis according to the
number of Registrable Securities then outstanding held by each Holder requesting
registration (including the Initiating Holders); provided, however, that (i) the
number of shares of Registrable Securities to be included in such underwriting
and registration shall not be reduced unless all securities of other
stockholders (other than the Intel Holders) are first entirely excluded from the
underwriting and registration and (ii) if any of the Intel Holders seeks to sell
Intel Registrable Securities in such underwriting
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and registration, the number of shares of Registrable Securities that the
Holders shall be entitled to sell shall be equal to the product of (x) the
aggregate number of shares of Intel Registrable Securities and Registrable
Securities the underwriter has advised can be sold (the "Includable Shares") and
(y) a fraction, the numerator of which is the number of shares of Registrable
Securities the Holders requested to include in the underwriting and the
denominator of which is the sum of the number of shares of Registrable
Securities and Intel Registrable Securities that the Holders and the Intel
Holders, respectively, requested to include in such underwriting, except that in
no event shall the Holders be entitled to include fewer than their pro rata
share of the Includable Shares (which pro rata share shall be based on the
number of shares of Registrable Securities and Intel Registrable Securities then
outstanding) (the "NBAMV-Intel Cutback Formula"). In the event that the
registration covers shares of Common Stock to be sold by the Company, then such
registration shall be deemed a registration under Section 1.3 and shall not
constitute the use of a demand registration statement pursuant to this Section
1.2. Any Registrable Securities excluded and withdrawn from such underwriting
shall be withdrawn from the registration.
(c) Timing and Maximum Number of Demand Registrations; Shares
Covered. The Holders shall not be entitled to effect a registration under this
Section 1.2 prior to ____________, 2001 [12 months from the Effective Time under
the Contribution and Merger Agreement] unless a Trigger Event has occurred.
Regardless of whether a Trigger Event has occurred, from ____________, 200_
until _________, 200_ [first three-month period following Effective Time
anniversary], Holders may request Section 1.2 registrations with respect to a
maximum of_________ shares of Common Stock [50% of shares issued under the
Contribution Agreement or otherwise]; thereafter, Holders may request Section
1.2 registrations with respect to all or any portion of the Registrable
Securities; provided, however, that the Registrable Securities proposed to be
sold in any registration, together with any other securities of the Company
proposed to be sold pursuant to such registrations, shall have an aggregate
price to the public of at least $1,000,000. The Company shall be obligated to
effect only two (2) such registrations pursuant to this Section 1.2.
(d) Deferral. Notwithstanding the foregoing, if the Company
shall furnish to Holders requesting the filing of a registration statement
pursuant to this Section 1.2 or Section 1.4(d) a certificate signed by the
President, Chief Executive Officer or Chief Financial Officer of the Company
stating that in the good faith judgment of the Board, it would be materially
detrimental to the Company and its stockholders for such registration statement
to be filed, then the Company shall have the right to defer such filing and any
filing requested under Section 1.4(d) for a period of not more than ninety (90)
days after receipt of the request of the initiating Holders; provided, however,
that the fact that such request is made shall not be a basis for a determination
that the filing of such registration statement would be materially detrimental
to the Company and its stockholders; and provided, further, however, that the
Company may not utilize this right and its right under Section 1.4(d) more than
once in any twelve (12) month period.
(e) Expenses. All expenses incurred in connection with any
registration pursuant to this Section 1.2, including without limitation all
federal and "blue sky" registration, filing and qualification fees, printer's
and accounting fees, and fees and disbursements of counsel for the Company (but
excluding underwriters' discounts and commissions relating to shares sold
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by the Holders and legal fees of counsel for the Holders), shall be borne by the
Company. Each Holder participating in a registration pursuant to this Section
1.2 shall bear such Holder's proportionate share (based on the total number of
shares sold in such registration other than for the account of the Company) of
all discounts, commissions or other amounts payable to underwriter(s) or
brokers, and the Holders' legal fees, in connection with such offering by the
Holders. Notwithstanding the foregoing, the Company shall not be required to pay
for any expenses of any registration proceeding begun pursuant to this Section
1.2 if the registration request is subsequently withdrawn at the request of the
Holders of a majority of the Registrable Securities to be registered, unless
NBAMV agrees that such registration constitutes the use by the Holders of one
(1) demand registration pursuant to this Section 1.2 (in which case such
registration shall also constitute the use by all Holders of Registrable
Securities of one (1) such demand registration); provided, further, however,
that if at the time of such withdrawal, the Holders have learned of a material
adverse change in the condition, business, or prospects of the Company not known
to the Holders at the time of their request for such registration and have
withdrawn their request for registration with reasonable promptness after
learning of such material adverse change, then the Holders shall not be required
to pay any of such expenses and such registration shall not constitute the use
of a demand registration pursuant to this Section 1.2.
1.3 Piggyback Registrations. The Company shall notify all Holders of
Registrable Securities in writing at least twenty (20) days prior to filing any
registration statement under the Securities Act for purposes of effecting a
public offering of securities of the Company (including, but not limited to,
registration statements relating to secondary offerings of securities of the
Company, but excluding registration statements relating to any registration
under Section 1.2 or Section 1.4 of this Agreement or to any employee benefit
plan or a corporate reorganization) and will afford each such Holder an
opportunity to include in such registration statement all or any part of the
Registrable Securities then held by such Holder. Each Holder desiring to include
in any such registration statement all or any part of the Registrable Securities
held by such Holder shall within fifteen (15) days after receipt of the
above-described notice from the Company, so notify the Company in writing, and
in such notice shall inform the Company of the number of Registrable Securities
such Holder wishes to include in such registration statement. If a Holder
decides not to include all of its Registrable Securities in any registration
statement thereafter filed by the Company, such Holder shall nevertheless
continue to have the right to include any Registrable Securities in any
subsequent registration statement or registration statements as may be filed by
the Company with respect to offerings of its securities, all upon the terms and
conditions set forth herein.
(a) Underwriting. If a registration statement under which the
Company gives notice under this Section 1.3 is for an underwritten offering,
then the Company shall so advise the Holders of Registrable Securities. In such
event, the right of any such Holder's Registrable Securities to be included in a
registration pursuant to this Section 1.3 shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their Registrable Securities through such
underwriting shall enter into an underwriting agreement in customary form with
the managing underwriter or underwriters selected for such underwriting
(including a market stand-off agreement of up to 180 days if required by such
underwriter or underwriters). Notwithstanding any other provision of this
Agreement, if the managing
<PAGE> 6
underwriter(s) determine(s) in good faith that marketing factors require a
limitation of the number of shares to be underwritten, then the managing
underwriter(s) may exclude shares from the registration and the underwriting,
and the number of shares that may be included in the registration and the
underwriting shall be allocated, first to the Company, and second, to each of
the Holders requesting inclusion of their Registrable Securities in such
registration statement on a pro rata basis based on the total number of
Registrable Securities then held by each such Holder; provided, however, that
the right of the underwriter(s) to exclude shares (including Registrable
Securities) from the registration and underwriting as described above shall be
restricted so that all shares that are not Registrable Securities (other than
Intel Registrable Securities) shall first be excluded from such registration and
underwriting before any Registrable Securities are so excluded and any
exclusions thereafter applicable to the Holders and the Intel Holders shall be
determined pursuant to the NBAMV-Intel Cutback Formula. If any Holder
disapproves of the terms of any such underwriting, such Holder may elect to
withdraw therefrom by written notice to the Company and the underwriter(s),
delivered at least ten (10) business days prior to the effective date of the
registration statement. Any Registrable Securities excluded or withdrawn from
such underwriting shall be excluded and withdrawn from the registration. For (i)
any Holder that is a limited liability company, the Holder and the members and
former members of such Holder, or the estates and family members of any such
members and former partners and any trusts for the benefit of any of the
foregoing persons, (ii) any Holder that is a partnership, the Holder and the
partners and former partners of such Holder, or the estates and family members
of any such partners and former partners, and trusts for the benefit of any of
the foregoing persons, and (iii) for any Holder that is a corporation, the
Holder and all corporations that are affiliates of such Holder, shall in each
case be deemed to be a single "Holder," and any pro rata reduction with respect
to such "Holder" shall be based upon the aggregate amount of shares carrying
registration rights owned by all entities and individuals included in such
"Holder," as defined in this sentence.
(b) Expenses. All expenses incurred in connection with a
registration pursuant to this Section 1.3 (excluding underwriters' and brokers'
discounts and commissions relating to shares sold by the Holders and legal fees
of counsel for the Holders), including, without limitation all federal and "blue
sky" registration, filing and qualification fees, printers' and accounting fees,
and fees and disbursements of counsel for the Company, shall be borne by the
Company.
(c) Not Demand Registration. Registration pursuant to this
Section 1.3 shall not be deemed to be a demand registration as described in
Section 1.2 above. Except as otherwise provided herein, there shall be no limit
on the number of times the Holders may request registration of Registrable
Securities under this Section 1.3.
1.4 Form S-3 Registration. In case the Company shall at any time after
the first anniversary of the date hereof receive from NBAMV a written request or
requests that the Company effect a registration on Form S-3 and any related
qualification or compliance with respect to all or a part of the Registrable
Securities owned by such Holder or Holders, then the Company will:
<PAGE> 7
(a) Notice. Promptly give written notice of the proposed
registration and the Holder's or Holders' request therefor, and any related
qualification or compliance, to all other Holders of Registrable Securities; and
(b) Registration. As soon as practicable, effect such
registration and all such qualifications and compliances as may be so requested
and as would permit or facilitate the sale and distribution of all or such
portion of such Holder's or Holders' Registrable Securities as are specified in
such request, together with all or such portion of the Registrable Securities of
any other Holder or Holders joining in such request as are specified in a
written request given within fifteen (15) days after the Company provides the
notice contemplated by Section 1.4(a) subject to the limitations set forth in
Section 1.4(f); provided, however, that the Company shall not be obligated to
effect any such registration, qualification or compliance pursuant to this
Section 1.4:
(1) if Form S-3 is not available for such offering by
the Holders;
(2) if the Holders, together with the holders of any
other securities of the Company entitled to inclusion in such registration,
propose to sell Registrable Securities and such other securities (if any) at an
aggregate price to the public of less than $1,000,000;
(3) if the Company has, within the six (6) month period
preceding the date of such request, already effected a registration under the
Securities Act other than a registration from which the Registrable Securities
of Holders have been excluded (with respect to all or any portion of the
Registrable Securities the Holders requested be included in such registration)
pursuant to the provisions of Section 1.3(a); or
(4) in any particular jurisdiction in which the Company
would be required to qualify to do business or to execute a general consent to
service of process in effecting such registration, qualification or compliance.
(c) Expenses. The Company shall pay all expenses incurred in
connection with each registration requested pursuant to this Section 1.4
(excluding underwriters' or brokers' discounts and commissions relating to
shares sold by the Holders and legal fees of counsel for the Holders), including
without limitation federal and "blue sky" registration, filing and qualification
fees, printers' and accounting fees, and fees and disbursements of counsel.
(d) Deferral. Notwithstanding the foregoing, if the Company
shall furnish to Holders requesting the filing of a registration statement
pursuant to this Section 1.4 or Section 1.2, a certificate signed by the
President, Chief Executive Officer or Chief Financial Officer of the Company
stating that in the good faith judgment of the Board, it would be materially
detrimental to the Company and its stockholders for such registration statement
to be filed, then the Company shall have the right to defer such filing and any
filing requested under Section 1.2 for a period of not more than ninety (90)
days after receipt of the request of the initiating Holders; provided, however,
that the fact that such request is made shall not be a basis for a determination
that the filing of such registration statement would be materially detrimental
to the Company and its stockholders; and provided, further, however, that the
Company may not utilize this right and its right under Section 1.2(d) more than
once in any twelve (12) month period.
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(e) Not Demand Registration. Form S-3 registrations shall not
be deemed to be demand registrations as described in Section 1.2 above. Except
as otherwise provided herein, there shall be no limit on the number of times the
Holders may request registration of Registrable Securities under this Section
1.4.
(f) Timing of Form S-3 Registration; Shares Covered. The
Holders shall not be entitled to request a registration under this Section 1.4
prior to _________, 2001 [12 months from the Effective Time under the
Contribution and Merger Agreement] unless a Trigger Event has occurred.
Regardless of whether a Trigger Event has occurred, from ______________, 200__
until ____________, 2000 [first three-month period following Effective time
anniversary], Holders may request Section 1.4 registrations with respect to a
maximum of ________ shares of Common Stock [50% of shares issued under the
Contribution Agreement or otherwise]; thereafter, Holders may request Section
1.4 registrations with respect to all Registrable Securities.
1.5 Obligations of the Company. Whenever required to effect the
registration of any Registrable Securities under this Agreement the Company
shall, as expeditiously as reasonably possible:
(a) Registration Statement. Prepare and file with the SEC a
registration statement with respect to such Registrable Securities and use its
best efforts to cause such registration statement to become effective, provided,
however, that the Company shall not be required to keep any such registration
statement effective for more than ninety (90) days.
(b) Amendments and Supplements. Prepare and file with the SEC
such amendments and supplements to such registration statement and the
prospectus used in connection with such registration statement as may be
necessary to comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such registration statement.
(c) Prospectuses. Furnish to the Holders such number of copies
of a prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by them that are included in such registration.
(d) Blue Sky. Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions.
(e) Underwriting. In the event of any underwritten public
offering, enter into and perform its obligations under an underwriting agreement
in usual and customary form, with the managing underwriter(s) of such offering.
Each Holder participating in such underwriting shall also enter into and perform
its obligations under such an agreement.
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(f) Notification. Notify each Holder of Registrable Securities
covered by such registration statement at any time when a prospectus relating
thereto is required to be delivered under the Securities Act of the happening of
any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing.
(g) Opinion and Comfort Letter. Furnish, at the request of any
Holder requesting registration of Registrable Securities, on the date that such
Registrable Securities are delivered to the underwriter(s) for sale, if such
securities are being sold through underwriters, or, if such securities are not
being sold through underwriters, on the date that the registration statement
with respect to such securities becomes effective, (i) an opinion, dated as of
such date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters in
an underwritten public offering and reasonably satisfactory to a majority in
interest of the Holders requesting registration, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities and
(ii) a "comfort" letter dated as of such date, from the independent certified
public accountants of the Company, in form and substance as is customarily given
by independent certified public accountants to underwriters in an underwritten
public offering and reasonably satisfactory to a majority in interest of the
Holders requesting registration, addressed to the underwriters, if any, and to
the Holders requesting registration of Registrable Securities.
1.6 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Sections 1.2, 1.3 or
1.4 that the selling Holders shall furnish to the Company such information
regarding themselves, the Registrable Securities held by them, and the intended
method of disposition of such securities as shall be required to timely effect
the Registration of their Registrable Securities.
1.7 Indemnification. In the event any Registrable Securities are
included in a registration statement under Sections 1.2, 1.3 or 1.4:
(a) By the Company. To the extent permitted by law, the Company
will indemnify and hold harmless each Holder, the partners, members, managers,
officers and directors of each Holder, any underwriter (as determined in the
Securities Act) for such Holder and each person, if any, who controls such
Holder or underwriter within the meaning of the Securities Act or the Securities
Exchange Act of 1934, as amended, (the "1934 Act"), against any losses, claims,
damages, or liabilities (joint or several) to which they may become subject
under the Securities Act, the 1934 Act or other federal or state law, insofar as
such losses, claims, damages, or liabilities (or actions in respect thereof)
arise out of or are based upon any of the following statements, omissions or
violations (collectively a "Violation"):
(i) any untrue statement or alleged untrue statement of a
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto;
<PAGE> 10
(ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the
statements therein not misleading, or
(iii) any violation or alleged violation by the Company of the
Securities Act, the 1934 Act, any federal or state securities law or any
rule or regulation promulgated under the Securities Act, the 1934 Act or
any federal or state securities law in connection with the offering
covered by such registration statement;
and the Company will reimburse each such Holder, partner, officer or director,
underwriter or controlling person for any legal or other expenses reasonably
incurred by them, as incurred, in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this subsection 1.7(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld), nor shall the Company be liable in any such
case for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by such Holder, partner, officer, director, underwriter
or controlling person of such Holder.
(b) By Selling Holders. To the extent permitted by law, each
selling Holder will indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed the registration statement, each
person, if any, who controls the Company within the meaning of the Securities
Act, any underwriter and any other Holder selling securities under such
registration statement or any of such other Holder's partners, members,
managers, directors or officers or any person who controls such Holder within
the meaning of the Securities Act or the 1934 Act, against any losses, claims,
damages or liabilities (joint or several) to which the Company or any such
director, officer, controlling person, underwriter or other such Holder,
partner, member, manager, director, officer or controlling person of such other
Holder may become subject under the Securities Act, the 1934 Act or other
federal or state law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by such
Holder expressly for use in connection with such registration; and each such
Holder will reimburse any legal or other expenses reasonably incurred by the
Company or any such director, officer, controlling person, underwriter or other
Holder, partner, member, manager, officer, director or controlling person of
such other Holder in connection with investigating or defending any such loss,
claim, damage, liability or action: provided, however, that the indemnity
agreement contained in this subsection 1.7(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Holder, which consent shall
not be unreasonably withheld; and provided, further, that the total amounts
payable in indemnity by a Holder under this Section 2.7(b) in respect of any
Violation shall not exceed the net proceeds received by such Holder in the
registered offering out of which such Violation arises.
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(c) Notice. Promptly after receipt by an indemnified party
under this Section 1.7 of notice of the commencement of any action (including
any governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 1.7,
deliver to the indemnifying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential conflict of interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action shall relieve such indemnifying party of
liability to the indemnified party under this Section 1.7 to the extent the
indemnifying party is prejudiced as a result thereof, but the omission so to
deliver written notice to the indemnified party will not relieve it of any
liability that it may have to any indemnified party otherwise than under this
Section 1.7.
(d) Defect Eliminated in Final Prospectus. The foregoing
indemnity agreements of the Company and Holders are subject to the condition
that, insofar as they relate to any Violation made in a preliminary prospectus
but eliminated or remedied in the amended prospectus on file with the SEC at the
time the registration statement in question becomes effective or the amended
prospectus filed with the SEC pursuant to SEC Rule 424(b) (the "Final
Prospectus"), such indemnity agreement shall not inure to the benefit of any
person if a copy of the Final Prospectus was timely furnished to the indemnified
party and was not furnished to the person asserting the loss, liability, claim
or damage at or prior to the time such action is required by the Securities Act.
(e) Contribution. In order to provide for just and equitable
contribution to joint liability under the Securities Act in any case in which
either (i) any Holder exercising rights under this Agreement, or any controlling
person of any such Holder, makes a claim for indemnification pursuant to this
Section 1.7 but it is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to appeal
or the denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 1.7 provides
for indemnification in such case, or (ii) contribution under the Securities Act
may be required on the part of any such selling Holder or any such controlling
person in circumstances for which indemnification is provided under this Section
1.7; then, and in each such case, the Company and such Holder will contribute to
the aggregate losses, claims, damages or liabilities to which they may be
subject (after contribution from others) in such proportion so that such Holder
is responsible for the portion represented by the percentage that the public
offering price of its Registrable Securities offered by and sold under the
registration statement bears to the public offering price of all securities
offered by and sold under such registration statement, and the Company and other
selling Holders are responsible for the remaining portion; provided, however,
that, in any such case: (A) no such Holder will be required to contribute any
amount in excess of the public offering price of all such Registrable Securities
offered and sold by such Holder pursuant to such registration statement;
<PAGE> 12
and (B) no person or entity guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) will be entitled to contribution
from any person or entity who was not guilty of such fraudulent
misrepresentation.
(f) Survival. The obligations of the Company and Holders under
this Section 1.7 shall survive until the fifth anniversary of the completion of
any offering of Registrable Securities in a registration statement, regardless
of the expiration of any statutes of limitation or extensions of such statutes.
1.8 Termination of the Company's Obligations. The Company shall have
no obligations pursuant to Sections 1.2 through 1.4 and the Company shall no
longer require the consent of NBAMV pursuant to Section 1.9 with respect to any
Registrable Securities proposed to be sold by a Holder in a registration
pursuant to Section 1.2, 1.3 or 1.4 more than seven (7) years after the date of
this Agreement or, if after the fifth (5th) anniversary of the date of this
Agreement, in the written opinion of counsel to the Company and counsel to
NBAMV, all such Registrable Securities beneficially owned by a Holder may then
be sold under Rule 144 in one transaction without exceeding the volume
limitations thereunder.
1.9 No Registration Rights to Third Parties. Without the prior written
consent of NBAMV, the Company covenants and agrees that it shall not grant, or
cause or permit to be created, for the benefit of any person or entity any
registration rights of any kind (whether similar to the demand, "piggyback" or
Form S-3 registration rights described in this Article 1, or otherwise) relating
to shares of the Company's Common Stock or any other voting securities of the
Company, other than rights that are subordinate in right to Holders; provided,
however, that the provisions of this Section 1.9 shall not apply to the Intel
Registration Rights Agreement.
2. ASSIGNMENT AND AMENDMENT.
2.1 Assignment. Notwithstanding anything herein to the contrary, the
registration rights of Holders under Section 1 hereof may be assigned to (i) any
wholly-owned subsidiary or other affiliate or member of NBAMV in connection with
a transfer of Registrable Securities to such subsidiary or such affiliate or
member, and (ii) to any other transferee who acquires Registrable Securities
representing five percent (5%) or more of the Common Stock; provided, however,
that no party may be assigned any of the foregoing rights unless the Company is
given written notice by the assigning party at the time of such assignment
stating the name and address of the assignee and identifying the securities of
the Company as to which the rights in question are being assigned; and provided
further that any such assignee shall receive such assigned rights subject to all
the terms and conditions of this Agreement, including without limitation the
provisions of this Section 2.
2.2 Amendment of Rights. Any provision of this Agreement may be
amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and NBAMV. Any amendment or waiver effected in
accordance with this Section 2.2 shall be binding upon NBAMV, each Holder, and
each permitted successor or assignee of NBAMV, a Holder or the Company.
<PAGE> 13
3. GENERAL PROVISIONS.
3.1 Notices. Except as may be otherwise provided herein, all notices,
requests, waivers and other communications made pursuant to this Agreement shall
be in writing and shall be conclusively deemed to have been duly given (a) when
hand delivered to the other party; (b) when received when sent by facsimile at
the address and number set forth below; (c) three business days after deposit in
the U.S. mail with first class or certified mail receipt requested postage
prepaid and addressed to the other party as set forth below; or (d) the next
business day after deposit with a national overnight delivery service, postage
prepaid, addressed to the parties as set forth below with next-business-day
delivery guaranteed, provided that the sending party receives a confirmation of
delivery from the delivery service provider.
To NBAMV: To the Company:
NBA Media Ventures, LLC Convera Corporation
Olympic Tower 1821 Gallows Road, Suite 200
645 Fifth Avenue Vienna, Virginia 22182
New York, NY 10022 Telecopier: (703) 761-1990
Telecopier: (212) 888-8374 Attention: Chief Financial Officer
Attention: Ed Desser
With copies to: With copies to:
Proskauer Rose LLP Heller, Ehrman, White & McAuliffe LLP
1585 Broadway 711 Fifth Avenue
New York, NY 10022 New York, New York 10028
Telecopier: (212) 969-2900 Telecopier: (212) 832-3353
Attention: Joseph M. Leccese, Esq. Attention: Peter Di Iorio, Esq.
Each person making a communication hereunder by facsimile shall promptly
confirm by telephone to the person to whom such communication was addressed each
communication made by it by facsimile pursuant hereto but the absence of such
confirmation shall not affect the validity of any such communication. A party
may change or supplement the addresses given above, or designate additional
addresses, for purposes of this Section 3.1 by giving the other party written
notice of the new address in the manner set forth above.
3.2 Entire Agreement. This Agreement, together with all the Exhibits
hereto, constitutes and contains the entire agreement and understanding of the
parties with respect to the subject matter hereof and supersedes any and all
prior negotiations, correspondence, agreements, understandings, duties or
obligations between the parties respecting the subject matter hereof.
3.3 Governing Law. This Agreement shall be governed by and construed
exclusively in accordance with the internal laws of the State of Delaware as
applied to agreements entered
<PAGE> 14
into and to be performed entirely within Delaware, excluding that body of law
relating to conflict of laws and choice of law.
3.4 Severability. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, then such provision(s) shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision(s) were so excluded and shall be enforceable in
accordance with its terms.
3.5 Third Parties. Nothing in this Agreement, express or implied, is
intended to confer upon any person, other than the parties hereto and their
permitted successors and assigns, any rights or remedies under or by reason of
this Agreement.
3.6 Successors and Assigns. Subject to the provisions of Section 2.1,
the provisions of this Agreement shall inure to the benefit of, and shall be
binding upon, the successors and permitted assigns of the parties hereto.
3.7 Captions. The captions to sections of this Agreement have been
inserted for identification and reference purposes only and shall not be used to
construe or interpret this Agreement.
3.8 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
3.9 Adjustments for Stock Splits, Etc. Wherever in this Agreement
there is a reference to a specific number of shares of Common Stock of the
Company, then, upon the occurrence of any subdivision, combination or stock
dividend of Common Stock, the specific number of shares so referenced in this
Agreement shall automatically be proportionally adjusted to reflect the affect
on the outstanding shares of such class or series of stock by such subdivision,
combination or stock dividend.
3.10 Representations of Company. The Company represents and warrants to
NBAMV that (i) attached hereto as Exhibit A is a true and complete copy of the
Intel Registration Rights Agreement, and (ii) neither the execution, delivery
and performance of this Agreement by the Company, nor the consummation by the
Company of the transactions contemplated hereby, will (a) conflict with or
result in any breach of any provision of the certificate of incorporation or
bylaws (or similar governing documents) of the Company, (b) result in a
violation or breach of or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, amendment,
cancellation or acceleration) under any of the terms, conditions or other
instrument or obligation to which the Company is a party or by which the Company
or any of its properties or assets is bound, (c) result in any Lien (as defined
in the Contribution Agreement) on the assets or shares of capital stock of the
Company, or (d) violate any order, writ, injunction, decree, law, statute, rule
or regulation applicable to the Company or any of its properties or assets,
except for matters the existence of which would not reasonably be expected,
individually or in the aggregate, to have a material adverse effect on the
Company.
<PAGE> 15
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
CONVERA CORPORATION, a Delaware NBA MEDIA VENTURES, LLC, a Delaware
Corporation limited liability company
By: By:
----------------------------- -----------------------------
Name: Name:
--------------------------- ---------------------------
Title: Title:
-------------------------- --------------------------
Date: , 2000 Date: , 2000
--------------- ---------------
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT BY AND BETWEEN
EXCA HOLDING, INC. AND NBA MEDIA VENTURES, LLC
The undersigned hereby consents to the above Registration Rights
Agreement and, with respect only to such Registration Rights Agreement, waives
any rights it may have under Section 1.9 of the Intel Registration Rights
Agreement.
INTEL CORPORATION
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
Date: , 2000
---------------
<PAGE> 16
Exhibit A
Intel Registration Rights Agreement