<PAGE>
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 Garr
Godfrey (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
<PAGE>
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
-2-
<PAGE>
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
-3-
<PAGE>
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 Insider
Trading.
(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 Registra
