EXHIBIT 99.1
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and entered
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into as of June 28, 1996 by and among Individual, Inc., a Delaware corporation
("Individual" or the "Company"), and certain stockholders of FreeLoader, Inc., a
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Delaware corporation ("FreeLoader") listed on the signature pages hereto
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(collectively the "Stockholders" and individually a "Stockholder").
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RECITALS
A. The Company, FL Acquisition Corp., a Delaware corporation and wholly-
owned subsidiary of Individual (the "Purchaser"), FreeLoader, and the
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Stockholders are parties to an Agreement and Plan of Reorganization (the "Merger
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Agreement") pursuant to which Individual will acquire FreeLoader through a
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merger of Purchaser with and into FreeLoader in which shares of Common Stock of
Individual, $.01 par value per share (the "Individual Common Stock"), will be
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issued to the Stockholders as set forth in the Merger Agreement.
B. The execution and delivery of this Agreement by the parties hereto is a
condition precedent to the obligations of the parties under the Merger
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
contained herein, the parties hereto agree as follows:
1. Definitions
For the purposes of this Agreement, the following terms have the meanings
indicted below:
1933 Act. The Securities Act of 1933, as amended, and the rules and
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regulations promulgated thereunder, as in effect from time to time
1934 Act. The Securities Exchange Act of 1934, as amended, and the
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rules and regulations promulgated thereunder, as in effect from time to time.
Business Day. Each weekday that is not a day on which banking
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institutions in New York are authorized or obligated by law or executive order
to close.
Commission. The United States Securities and Exchange Commission.
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Holder. Any person owning Registrable Securities who is a party to
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this Agreement, and any transferee thereof in accordance with Section 7 or 11 of
this Agreement.
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Prospectus. The prospectus included in any Registration Statement, as
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amended or supplemented by any prospectus supplement (including, without
limitation, 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 the Prospectus,
including post-effective amendments, and all material incorporated by reference
or deemed to be incorporated by reference in such Prospectus.
Register, registration and registered. A registration effected by
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preparing and filing a registration statement or similar document with the
Commission in compliance with the 1933 Act, and the declaration or ordering of
effectiveness of such registration statement or document.
Registrable Securities. The shares of Individual Common Stock issued
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to the Stockholders pursuant to the Merger Agreement or issued pursuant to
exercise of FreeLoader stock options assumed by Individual pursuant to the
Merger Agreement and any securities that may be issued by the Company or any
successor to the Company from time to time with respect to, in exchange for, or
in replacement of such shares of Individual Common Stock, including, without
limitation, securities issued as a stock dividend on or pursuant to a stock
split of such shares of Individual Common Stock; provided, however, that those
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shares as to which the following apply shall cease to be Registrable Securities:
(a) a Registration Statement with respect to the sale of such Registrable
Securities shall have become effective under the 1933 Act and such Registrable
Securities shall have been disposed of under such Registration Statement; (b)
such Registrable Securities shall have become transferable, or have become
eligible and remain eligible for transfer (whether or not so transferred), in
accordance with Rule 144(K), or any successor rule or provision, under the 1933
Act; (c) such Registrable Securities shall have been transferred in a
transaction in which the Holder's rights and obligations under this Agreement
were not assigned in accordance with this Agreement; or (d) such Registrable
Securities shall have ceased to be outstanding.
Registration Expenses. All expenses incident to the Company's
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performance of or compliance with Sections 2 and 4 hereof, including, without
limitation, all registration and filing fees (including filing fees with respect
to the Commission and to the National Association of Securities Dealers, Inc.
and listing fees of the Nasdaq National Market System), all fees and expenses of
complying with state securities or "blue sky" laws (including fees and
disbursements of underwriters' counsel in connection with any "blue sky"
memorandum or survey, but excluding any fees and expenses for foreign
qualification in such jurisdictions), all printing expenses, all registrars' and
transfer agents' fees and all fees and disbursements of the Company's counsel
and independent public accountants; provided, however, that Registration
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Expenses shall not include the fees and expenses of more than one counsel to the
holders of Registrable Securities, or underwriters' discounts or commissions
associated with the sale of the Registrable Securities.
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Registration Statement. A registration statement prepared and filed
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with the Commission in compliance with the 1933 Act.
Seller. Any person, including any Holder, participating in an
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offering of any Registrable Securities of the Company pursuant to this
Agreement.
Selling Expenses. All applicable transfer taxes and any fees and
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disbursements of more than one counsel or any accountants or other advisors for
the Sellers of the Registrable Securities being registered.
2. "Piggy-Back" Registration Rights
If at any time Individual shall determine to register in a public
offering under the 1933 Act any of its Common Stock for its own account, or the
account of other stockholders of the Company desiring to sell "restricted
securities" of the Company (as defined in Rule 144 of the 1933 Act), it shall
send to the Stockholders written notice of such determination and, if within 15
calendar days after receipt of such notice, any Stockholder shall so request in
writing, Individual shall include in such registration statement all or any part
of the Registrable Securities the Stockholder requests to be registered. This
right shall not apply to a registration of shares of Individual Common Stock on
Form S-8 or Form S-4 (or their then equivalents) relating to shares of
Individual Common Stock to be issued by Individual in connection with any
acquisition of any entity or business, or shares of Individual Common Stock
issuable in connection with any stock option, stock purchase plan or other
employee benefit plan.
If, in connection with any offering involving an underwriting of
Individual Common Stock to be issued for the account of the Company or selling
securityholders, the managing underwriter shall impose a limitation on the
number of shares of such Individual Common Stock which may be included in any
such registration statement because, in its judgment, such limitation is
necessary to effect an orderly public distribution of the Individual Common
Stock and to maintain a stable market for the securities of the Company, then
the Company shall be obligated to include in such registration statement only
such limited portion of the stock with respect to which the Stockholder has
requested inclusion hereunder, on a pro rata basis based on the number of shares
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of Common Stock originally requested for inclusion therein by the Company, the
Stockholders, and all other selling securityholders.
3. Shelf Registration
3.1 Undertaking to Register
As soon as practicable following the Effective Time (as that term is
defined in the Merger Agreement), Individual will use its best efforts to
prepare and file a registration statement under the Securities Act within 20
days following the date of the Merger to register
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all of the Registrable Securities for resale in the public market in brokerage
transactions or transactions with market makers, in block trades, and in
privately negotiated transactions.
3.2 Selling Procedures; Suspension
(a) Except in the event that paragraph (b) below applies, the Company
shall (i) if deemed necessary by the Company, prepare and file from time-to-time
with the Commission a post-effective amendment to the Registration Statement or
a supplement to the related Prospectus or a supplement or amendment to any
document incorporated therein by reference or file any other required document
so that such Registration Statement 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 not misleading, and so that, as
thereafter delivered to 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; (ii) provide the Holders of the Registrable
Securities copies of any documents filed pursuant to Section 3.2(a)(i); and
(iii) inform each Holder that the Company has complied with its obligations in
Section 3.2(a)(i) (or that, if the Company has filed a post-effective amendment
to the Registration Statement which has not yet been declared effective, the
Company will notify each such Holder to that effect, will use its best efforts
to secure the effectiveness of such post-effective amendment and will
immediately notify each such Holder pursuant to Section 3.2(a)(i) hereof when
the amendment has become effective).
(b) In the event (i) of any request by the Commission or any other
federal or state governmental authority during the period of effectiveness of
the Registration Statement for amendments or supplements to a Registration
Statement or related Prospectus or for additional information; (ii) of the
issuance by the Commission 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; (iii) of the receipt by the
Company 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; (iv) of any event or circumstance which necessitates the making of any
changes in the Registration Statement or Prospectus, or any document
incorporated or deemed to be incorporated therein by reference, so that, in the
Registration Statement, it will not contain any untrue statement of a material
fact or any omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the case of
the Prospectus, it will not contain any untrue statement of a material fact or
any omission to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; or (v) that, in the good faith judgment of the
Company's Board of Directors, upon the advice of counsel, (A) the offering of
securities
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pursuant thereto would materially and adversely affect (i) a pending or
scheduled public offering or private placement of Individual's securities, (ii)
a pending or proposed acquisition, merger, consolidation, reorganization,
restructuring or similar transaction of or by Individual, (iii) bona fide
negotiations, discussions or proposals with respect to any of the foregoing, or
(iv) the position or strategy of Individual in connection with any pending or
threatened litigation, claim, assessment or government investigation and (B) in
the event sales of Registrable Securities were made under the Registration
Statement and disclosure of all material information with respect to the
applicable circumstance(s) described in subparagraph (A) had not been made, such
circumstances would cause a violation of the 1933 Act or the 1934 Act and result
in potential liability to Individual (each a "Suspension Event"); then, subject
to paragraph (d) below, the Company shall deliver a certificate in writing to
the Notice Holders (the "Suspension Notice") to the effect of the foregoing and,
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upon receipt of such Suspension Notice, each such Holder will refrain from
selling any Registrable Securities pursuant to the Registration Statement (a
"Suspension") until such Holder's receipt of copies of the supplemented or
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amended Prospectus provided for in Section 3.2(a)(i) hereof, or until it is
advised in writing by the Company that the Prospectus may be used, and has
received copies of any additional or supplemental filings that are incorporated
or deemed incorporated by reference in such Prospectus.
(c) In the event of any Suspension, or any delay in effecting the
Registration under Section 3.2 above, the Company will use its best efforts to
ensure that the use of the Prospectus so suspended or delayed may be commenced
or resumed, as the case may be, and that any Selling Period so suspended will
commence or resume, as the case may be, as soon as practicable and, in the case
of a pending development, filing or event referred to in Section 3.2(b)(iv) or
(v) hereof, as soon, in the judgment of the Company's Board of Directors (in
accordance with the provisions of Section 3.2), as disclosure of the material
relating to such pending development, filing or event would not have an adverse
effect on the Company's ability to consummate the transaction, if any, to which
such development, filing or event relates. Notwithstanding any other provision
of this Agreement, the Company shall have the right to cause a maximum of two
(2) Suspensions, neither of which may be within 30 days of the other, as
provided above (including for this purpose a delay in effecting the Registration
pursuant to Section 3.2 above) during any 12-month period after the initial
effective date of the Registration Statement, and the total number of days
during which any Suspension (including for this purpose a delay in effecting the
Registration Statement pursuant to Section 3.2 above) may be in effect shall not
exceed 20 days.
(d) The Company will use its best efforts to maintain the
effectiveness of any registration statement pursuant to which any of the
Registrable Securities are being offered for (i) up to 90 days, (or such shorter
period of time as the underwriters need to complete the distribution of the
registered offering in any Company-primary or secondary offering), in the case
of a registration pursuant to Section 2, or (ii) in the case of a "shelf"
registration statement pursuant to Section 3.1 until the earlier of (A) the
third anniversary of the Effective Time or
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(B) the date on which each Holder may sell all Registrable Securities then held
by such Holder without restriction by the volume limitations of Rule 144(e). The
Company from time to time will amend or supplement such registration statement
and the prospectus contained therein to the extent necessary to comply with the
1933 Act and any applicable state securities statue or regulation. The Company
will also provide each holder of Registrable Securities with as many copies of
the prospectus contained in any such registration statement as it may reasonably
request.
3.3 Underwriting Agreement
If in connection with any proposed distribution by the Stockholders
under the "piggy back" registration referred to in Section 2, the Company in its
discretion shall determine that it is in the best interests of the Company to
effect distribution by means of an underwriting, the Company shall promptly
notify the Stockholders of such determination. In such event, the right of any
Stockholder to participate in such distribution shall be conditioned upon such
Stockholder's participation in the underwriting arrangements required by this
Section 3.3, including without limitation, the requirement that the Stockholder
enter into an underwriting agreement and a lock-up agreement (for a period not
to exceed lesser period as shall apply to the directors and officers of the
Company), each in customary form with the managing underwriter selected for the
underwriting by the Company.
4. Volume Limitations
Notwithstanding any other provision of this Agreement, no Holder of
Registrable Securities shall dispose of Registrable Securities in any twelve-
month period in such a way as to result in the merger contemplated by the Merger
Agreement not qualifying as a tax-free reorganization under Section 368(a) of
the Internal Revenue Code of 1986, as amended.
5. Expenses
The Company will pay all Registration Expenses in connection with the
registration of Registrable Securities effected by the Company pursuant to
Section 4. Holders of Registrable Securities registered pursuant to this
Agreement shall pay all Selling Expenses with each such Holder bearing a pro
rata portion of the Selling Expenses based upon the number of Registrable
Securities registered by each such Holder.
6. Expiration of Registration Rights
The obligations of the Company under Section 2 of this Agreement to
register the Registrable Securities shall expire and terminate at such time as
the Stockholder shall be entitled or eligible to sell all such securities
without restriction and without a need for the filing of a registration
statement under the Securities Act, including without limitation, for any
resales of restricted securities made pursuant to Rule 144(k) as promulgated by
the Securities and
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Exchange Commission. The determination as to whether the Stockholder is entitled
or eligible to sell all Registrable Securities without the need for registration
under the Securities Act shall be based on a written opinion of counsel that
registration of the Registrable Securities is not required under the Securities
Act, sufficient to permit the transfer agent to transfer such securities upon a
sale by the Stockholder. The obligations of the Company under Section 3 of this
Agreement shall expire at the time specified in Section 3.2(e)(ii).
7. Registration Procedures
In connection with the registration of Registrable Securities under this
Agreement, and subject to the other provisions of this Agreement, the Company
shall:
(a) use its best efforts to cause the Registration Statement filed in
accordance with Section 2 or Section 3 to become effective as soon as
practicable after the date of filing thereof;
(b) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the Prospectus used in connection
therewith as may be necessary to keep such Registration Statement continuously
effective for the shorter of (i) the duration of its registration obligations,
or (ii) until there are no Registrable Securities outstanding, and to comply
with the provisions of the 1933 Act with respect to the disposition of the
Registrable Securities;
(c) furnish to each Seller of such Registrable Securities such number
of copies of the Prospectus included in such Registration Statement as such
Seller may reasonably request in order to facilitate the sale or disposition of
such Registrable Securities;
(d) use its best efforts to register or qualify all securities covered
by such Registration Statement under such other securities or "blue sky" laws of
such jurisdictions as each Seller shall reasonably request, and do any and all
other acts and things that may be necessary to enable such Seller to consummate
the disposition in such jurisdictions of its Registrable Securities covered by
such Registration Statement, except that the Company shall not for any such
purpose be required to qualify generally to do business as a foreign corporation
in any jurisdiction wherein it is not so qualified, or to subject itself to
taxation in respect of doing business in any such jurisdiction, or to consent to
general service of process in any such jurisdiction;
(e) notify each Seller of Registrable Securities covered by such
Registration Statement, at any time when a Prospectus relating thereto is
required to be delivered under the 1933 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 any
material fact required to be stated therein or necessary to make the statements
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therein not misleading in light of the circumstances then existing or if it is
necessary to amend or supplement such Prospectus to comply with the law, and at
the request of any such Seller, prepare and furnish to such Seller a reasonable
number of copies of a supplement to or an amendment of such Prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such Registrable
Securities or securities, such Prospectus, as amended or supplemented, will
comply with the law;
(f) timely file with the Commission such information as the Commission
may prescribe under Section 13 or 15(d) of the 1934 Act and otherwise use its
best efforts to ensure that the public information requirements of Rule 144
under the 1933 Act are satisfied with respect to the Company. The Company shall
furnish to any Holder of Registrable Securities, upon request, copies of the
Company's most recent annual and quarterly reports and other publicly available
documents filed with the Commission as a Holder may reasonably request in
availing itself of any rule or regulation of the Commission allowing such Holder
to sell Registrable Securities without registration.
(g) use its best efforts to qualify such securities for inclusion in
the Nasdaq National Market, and provide a transfer agent and registrar for such
Registrable Securities not later than the effective date of such Registration
Statement; and
(h) issue to any person to which any Holder of Registrable Securities
may sell such Registrable Securities in connection with such registration
certificates evidencing such Registrable Securities without any legend
restricting the transferability of the Registrable Securities.
From time to time, the Company will amend or supplement such
registration statement and the prospectus contained therein to the extent
necessary to comply with the 1933 Act and any applicable state securities
statute or regulation. The Company will also provide the holder of Registrable
Securities with as many copies of the prospectus contained in any such
registration statement as it may reasonably request.
8. 1934 Act Registration
The Company shall timely file with the Commission such information as the
Commission may require under Section 13 or 15(d) of the 1934 Act; and in such
event, the Company shall use its best efforts to take all action pursuant to
Rule 144(c) as may be required as a condition to the availability of Rule 144
under the 1933 Act (or any successor exemptive rule hereinafter in effect) with
respect to such Common Stock. The Company shall furnish to any holder of
Registrable Securities forthwith upon request (i) a written statement by the
Company as to its compliance with the reporting requirements of Rule 144(c),
(ii) a copy of the most recent annual or quarterly report of the Company as
filed with the Commission, and (iii) such other publicly-filed reports and
documents as a holder may reasonably request in
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availing itself of any rule or regulation of the Commission allowing a holder to
sell any such Registrable Securities without registration.
9. Stockholder Information
It shall be a condition precedent to the obligations of the Company to take
any action pursuant to this Agreement that all Stockholders of Registrable
Securities shall furnish to the Company such information regarding themselves,
the Registrable Securities held by them and the intended method of disposition
of such Registrable Securities as shall be reasonably required to effect the
registration of their Registrable Securities and to execute such documents in
connection with such registration as the Company may reasonably request.
10. Indemnification and Contribution
In the event any Registrable Securities are included in a Registration
Statement under Sections 2 and 3:
(a) The Company will indemnify and hold harmless each Seller, the
officers, directors, partners, agents and employees of each Seller, any
underwriter (as defined in the 1933 Act) for such Seller and each person, if
any, who controls such Seller or underwriter within the meaning of the 1933 Act
or the 1934 Act, against any losses, claims, damages or liabilities (joint or
several) to which they may become subject under the 1933 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
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material fact contained in such Registration Statement, including any
preliminary prospectus or final prospectus contained therein or any amendments
or supplements thereto; (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; or (iii) any violation or alleged violation by the Company of the
1933 Act, the 1934 Act, any state securities law or any rule or regulation
promulgated under the 1933 Act, the 1934 Act or any state securities law; and
the Company will reimburse each such Seller, officer, director, partner, agent,
employee, underwriter or controlling person for any reasonable legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the indemnity agreement contained in this Section 6(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld or delayed), 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 any such Seller, underwriter or
controlling person.
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(b) Each Seller will indemnify and hold harmless the Company, each of
its officers, directors, partners, agents or employees, each person, if any, who
controls the Company within the meaning of the 1933 Act, any underwriter and any
other Seller or any of its directors, officers, partners, agents or employees or
any person who controls such Seller, against any losses, claims, damages or
liabilities (joint or several) to which the Company or any such director,
officer, partner, agent, employee, controlling person or underwriter, or other
such Seller or director, officer, partner, agent, employee or controlling person
may become subject, under the 1933 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 Seller expressly
for use in connection with such registration; and each such Seller will
reimburse any reasonable legal or other expenses reasonably incurred by the
Company or any such director, officer, partner, agent, employee, controlling
person or underwriter, other Seller, officer, director, partner, agent, employee
or controlling person in connection with investigating or defending any such
loss, claim, damage, liability or action. Notwithstanding anything contained in
this Agreement to the contrary, the indemnity agreement contained in this
Section 6(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 Seller, which consent shall not be unreasonably withheld or
delayed; provided further, that the aggregate liability of each Seller in
connection with any sale of Registrable Securities pursuant to a Registration
Statement in which a Violation occurred shall be limited to the net proceeds
from such sale.
(c) Promptly after receipt by an indemnified party under this Section
6 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 10, 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 differing or conflicting 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, to the extent prejudicial to its ability to
defend such action, shall relieve such indemnifying party of liability to the
indemnified party under this Section 6 to the extent of such prejudice, but the
omission so to deliver written notice to the indemnifying party will not relieve
it of any liability that it may have to any indemnified party otherwise than
under this Section 10.
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(d) If recovery is not available under the foregoing indemnification
provisions of this Section 10, for any reason other than as specified therein,
the parties entitled to indemnification by the terms thereof shall be entitled
to contribution to liabilities and expenses in such proportion as is appropriate
to reflect the relative fault of the indemnifying parties and the indemnified
parties, except to the extent that contribution is not permitted under Section
11(f) of the 1933 Act. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things, the
parties' relative knowledge and access to information concerning the matter with
respect to which the claim was asserted, the opportunity to correct and prevent
any statement or omission and any other equitable considerations appropriate
under the circumstances, including, without limitation, whether any untrue
statement or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Company, on the one hand, or by the Holder of Registrable Securities, on the
other hand. The Company and the Stockholders of the Registrable Securities
covered by such Registration Statement agree that it would not be equitable if
the amount of such contribution were determined by pro rata or per capita
allocation. No seller of Registrable Securities covered by such Registration
Statement or person controlling such Seller shall be obligated to make any
contribution hereunder which in the aggregate exceeds the net proceeds of the
securities sold by such seller, less the aggregate amount of any damages which
such seller and its controlling persons have otherwise been required to pay in
respect of the same claim or any substantially similar claim. The obligations
of such Stockholders to contribute are several in proportion to their respective
ownership of the Registrable Securities covered by such Registration Statement
and not joint.
11. Transferability
Each Holder agrees that he will not make any disposition of all or any
portion of the Registrable Securities (a) except in a registered public offering
pursuant to the rights granted in this Agreement; or (b) until (i) such Holder
shall have furnished the Company with a statement of the circumstances
surrounding the proposed disposition and (ii) if reasonably requested by the
Company, such Holder shall have furnished the Company with an opinion of
counsel, reasonably satisfactory to counsel for the Company, that such
disposition will not require registration of such Registrable Securities or such
transaction under the 1933 Act or applicable state securities laws.
The registration rights set forth in this Agreement are not transferable
except to (i) a trust created for the benefit of any of the Stockholders or
their immediate family members such as a spouse or lineal descendants, (ii) a
register of any of the Stockholders, or (iii) any partner (including a limited
partner) or affiliate of a Stockholder. All transferees shall agree in writing
to be bound by all of the provisions of this Agreement. A Stockholder shall
promptly advise the Company in writing of the identity and address of any person
to whom it transferred its registration rights hereunder.
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12. Legends
Each Holder understands and agrees that the certificates evidencing the
Registrable Securities will bear legends in substantially the following form:
"This security has not been registered under the Securities Act of
1933 or any state securities laws and may not be transferred or
otherwise disposed of unless it has been registered under such act
and all such applicable laws or an exemption from registration is
available."
13. Miscellaneous
13.1 Amendments and Waivers
Any provision of this Agreement may be amended and the observance thereof
may only be waived (either generally or in a particular instance and either
retroactively or prospectively), with the written consent of the Company and the
Holders of a majority of the Registrable Securities then outstanding. Any
amendment or waiver effected in accordance with this Section 9.1 shall be
binding upon each Holder of Registrable Securities at the time outstanding, each
future Holder of Registrable Securities, and the Company.
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13.2 Notices
Any notice required or permitted to be given hereunder shall be in writing
and shall be deemed given at the opening of business on the first Business Day
following the time (a) delivery is made, if by hand delivery, (b) the facsimile
is successfully transmitted, if by telecopier or facsimile machine, or (c) the
Business Day after such notice is deposited with a reputable overnight courier
service, postage prepaid, for next-day delivery, addressed as respectively set
forth below or to such other address as any party shall have previously
designated by such a notice.
To the Company:
Individual, Inc.
8 New England Executive Park West
Burlington, MA 01803
Fax: (617) 273-6090
Attention: Yosi Amram, President
with a copy to:
Testa, Hurwitz & Thibeault, LLP
125 High Street
Boston, Massachusetts 02110
Fax: (617) 248-7100
Attention: William B. Asher, Jr.
To a Holder of Registrable Securities:
At the addresses listed in Schedule A hereto.
13.3 Governing Law
This Agreement shall for all purposes be governed by and construed in
accordance with the internal laws of the State of Delaware without regard to
conflicts-of-laws principles. The parties hereto agree to submit to the
jurisdiction of the federal and state courts of the State of Delaware with
respect to the breach or interpretation of this Agreement or the enforcement of
any and all rights, duties, liabilities, obligations, powers and other relations
between parties arising under this Agreement.
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13.4 Severability
If one or more provisions of this Agreement are held to be unenforceable
under applicable law, such provision shall be excised from this Agreement, and
the remainder of this Agreement shall be interpreted as if such provision were
so excised and shall be enforceable in accordance with its remaining terms.
13.5 Counterparts
This Agreement may be executed in two or more counterparts, each of which
shall be deemed to be an original and all of which together shall constitute one
and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
INDIVIDUAL, INC.
By:
-----------------------------------
Title:
--------------------------------
STOCKHOLDERS:
/s/ Mark Pincus
--------------------------------------
Mark Pincus
/s/ Sunil Paul
--------------------------------------
Sunil Paul
Euclid Partners IV, L.P.
By:
-----------------------------------
Its:
----------------------------------
SOFTBANK Holdings Inc.
By:
-----------------------------------
Its:
----------------------------------
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/s/ David Mixer
---------------------------------
David Mixer
/s/ Jordan Levy
---------------------------------
Jordan Levy
/s/ Ronald Schreiber
---------------------------------
Ronald Schreiber
/s/ Harry Hopper
---------------------------------
Harry Hopper
VLG Investments 1996
By:
------------------------------
Its:
-----------------------------
VLG Retirement Savings Plan Trust
Account FBO Michael W. Hall
By:
------------------------------
Its:
-----------------------------
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Peter Cohn as Trustee, or the Successor Trustee
or Trustees, U/A/D June 29, 1995, as
amended, creating the Peter Cohn
Revocable Trust
By:
------------------------------
Its:
-----------------------------
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SCHEDULE A
[Omitted]