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EXHIBIT 4.04
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is made and entered
into as of April 8, 1998 (the "EFFECTIVE DATE") by and between Excite, Inc., a
California corporation ("EXCITE") and the persons and entities listed on Exhibit
A hereby which includes Throw Shareholders, Throw Warrant Holders upon exercise
of their Throw Warrants, Throw Convertible Debt Holders that elect to convert to
Excite Common Stock at the Effective Time and the holder of Throw Consultant
Debt (collectively, the "SHAREHOLDERS" and each individually a "SHAREHOLDER")
who immediately prior to the Effective Time of the Merger (as defined below) are
all of the Throw Shareholders, Throw Warrant Holders, converting Throw
Convertible Debt Holders and holder of Throw Consultant Debt of Throw Inc., a
Washington corporation ("THROW"). All terms not otherwise defined herein shall
have the meaning set forth in the Plan (as defined below).
R E C I T A L S
A. Throw, Excite and Clwyd Corporation ("SUB") have entered into an
Agreement and Plan of Reorganization (the "PLAN") dated as of April 8, 1998,
pursuant to which Sub will merge with and into Throw in a reverse triangular
merger with Throw to be the surviving corporation of the Merger (the "MERGER").
B. As a condition precedent to the consummation of the Merger, Section
1.5.1 of the Plan provides that the Shareholders shall be granted certain
registration rights with respect to the shares of Excite's Common Stock that are
issued to the Shareholders in the Merger, to the holders of Throw Convertible
Debt that elect to convert into Excite Common Stock at the Effective Time, to
the holder of Throw Consultant Debt or which are issuable upon exercise of
assumed Throw Warrants (the "MERGER SHARES"), subject to the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the above recitals and the mutual
covenants hereinafter set forth, the parties hereto hereby 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 "1933 ACT"), and the declaration or ordering of effectiveness of such
registration statement.
(b) Registrable Securities. The term "REGISTRABLE SECURITIES"
means: (1) all of the Merger Shares, and (2) any shares of Common Stock of
Excite issued as a dividend or other distribution with respect to, or in
exchange for or in replacement of, the Merger Shares; excluding in all cases,
however, (i) any Registrable Securities sold by a person in a transaction in
which rights under this Section 1 are not assigned in accordance with Section 2
of this Agreement, (ii) any Registrable Securities sold in a public offering
pursuant to a registration statement filed with the SEC or sold to the public
pursuant to Rule 144 promulgated under
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the 1933 Act ("RULE 144"); or (iii) any Registrable Securities which may be sold
in the public market in a three-month period without registration under the 1933
Act pursuant to Rule 144.
(c) Prospectus. The term "PROSPECTUS" shall mean the
prospectus included in any Registration Statement filed pursuant to the
provisions hereof (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the 1933
Act), as 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.
(d) Holder. For purposes of this Agreement, the term "HOLDER"
means any person owning of record Registrable Securities.
(e) SEC. The term "SEC" or "COMMISSION" means the U.S.
Securities and Exchange Commission.
1.2 Registration.
(a) Shelf Registration. Excite shall prepare and file with the
SEC within ninety (90) days following the Closing (as defined in the Plan), and
use its best efforts to have declared effective as soon as practicable
thereafter, a registration statement (a "REGISTRATION STATEMENT") providing for
the resale by the Holders of all of the Registrable Securities then owned (or
issuable upon exercise of Throw Warrants) by the Holders. Excite shall use its
best efforts to keep the Registration Statement continuously effective, pursuant
to the rules, regulations or instructions under the 1933 Act applicable to the
registration statement used by Excite for such Registration Statement, for such
period (the "EFFECTIVENESS PERIOD") ending on the date that is two (2) years
after the date of the Closing or such shorter period ending when the Registrable
Securities cease to meet the definition of Registrable Securities pursuant to
Section 1.1(b).
(b) Suspension. If Excite shall determine pursuant to the good
faith judgment of the Board of Directors of Excite, that it would be seriously
detrimental to Excite and its shareholders for resales of Registrable Securities
to be made pursuant to the Registration Statement, due to (A) the existence of a
material development or potential material development with respect to or
involving Excite which Excite would be obligated to disclose in the Prospectus
contained in the Registration Statement, which disclosure would in the good
faith judgment of the Board of Directors of Excite be premature or otherwise
inadvisable at such time and would have a material adverse affect upon Excite
and its shareholders, or (B) the occurrence of any event that makes any
statement made in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by reference untrue
in any material respect or which requires the making of any changes in the
Registration Statement or Prospectus so that it will not contain any untrue
statement of a material fact required to be stated therein or necessary to make
the statements therein not misleading or omit to state any 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, then
Excite shall deliver a certificate in writing to the Holders to the effect of
the foregoing and, upon receipt of such certificate, the use of the Registration
Statement and Prospectus will be deferred or suspended and will not
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recommence until (1) such Holder's receipt from Excite of copies of the
supplemented or amended Prospectus, or (2) such Holders are advised in writing
by Excite that the Prospectus may be used. Excite will use its best efforts to
ensure that the use of the Registration Statement and Prospectus may be resumed
as soon as practicable and, in the case of a pending development or event
referred to in (A) above, as soon, in the judgment of Excite, as disclosure of
the material information relating to such pending development would not have a
materially adverse effect on Excite's ability to consummate the transaction, if
any, to which such development relates. Notwithstanding the foregoing or any
other provision of this Agreement, the period during which Excite shall be
required to maintain the effectiveness of the Registration Statement shall be
extended by one (1) day for each full or partial day during which the use of
such Registration Statement or Prospectus is deferred or suspended by Excite in
accordance with this Section 1.2(b).
(c) Expenses. All reasonable expenses, other than underwriting
discounts and brokers commissions, incurred in connection with the Registration
Statement shall be borne by Excite.
1.3 Obligations of Excite. Excite shall, as expeditiously as
reasonably possible:
(a) Prepare promptly and file with the SEC the Registration
Statement as provided in Section 1.2(a), which Registration Statement (including
any amendments or supplements thereto and prospectuses contained therein) shall
not contain any 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 in which they were made, not misleading and use
its best efforts to cause such Registration Statement to become effective as
soon as practicable.
(b) Prepare promptly 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 1933 Act with respect to the disposition of all securities
covered by such registration statement.
(c) Furnish to Holders such number of copies of a Prospectus,
including a preliminary Prospectus, in conformity with the requirements of the
1933 Act, and such other documents as reasonably requested in order to
facilitate the disposition of the Registrable Securities owned by it that are
included in such registration.
(d) 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 Holders,
provided that Excite 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) Notify Holders promptly (i) of any request by the SEC or
any other federal or state governmental authority during the period of
effectiveness of the Registration Statement for amendments or supplements to
such Registration Statement or related Prospectus or for additional information,
(ii) of the issuance by the SEC or any other federal or state governmental
authority of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose, (iii) of the
receipt by Excite of
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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 the happening of any event which makes any statement made in
the Registration Statement or Prospectus or any document incorporated or deemed
to be incorporated therein by reference untrue in any material respect or which
requires the making of any changes in the Registration Statement or Prospectus
so that it will not contain any untrue statement of a material fact required to
be stated therein or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and (v) of
Excite's determination that a post-effective amendment to the Registration
Statement would be appropriate.
1.4 Furnish Information. It shall be a condition precedent to the
obligations of Excite to take any action pursuant to Section 1.2 that each
Holder shall furnish to Excite such information regarding Holder, the
Registrable Securities held by Holder, and the intended method of disposition of
such securities as shall be required to timely effect the registration of
Holder's Registrable Securities.
1.5 Indemnification
(a) By Excite. To the extent permitted by law, Excite will
indemnify and hold harmless each of the Holders, officers and directors,
employees and agents of a Holder or underwriter (as defined in the 0000 Xxx) and
each person, if any, who controls a Holder within the meaning of the 1933 Act or
the Securities Exchange Act of 1934 (the "1934 ACT"), against any losses,
claims, damages, or liabilities (joint or several) to which they or any of them
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
material fact contained in the Registration Statement, including any
preliminary Prospectus or final Prospectus contained therein or in
any amendments or supplements thereto;
(ii) the omission or alleged omission to state in the
Registration Statement, including any preliminary Prospectus or
final Prospectus contained therein or in any amendments or
supplements thereto, 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 Excite of the 1933
Act, the 1934 Act, any federal or state securities law or any rule
or regulation promulgated under the 1933 Act, the 1934 Act or any
federal or state securities law in connection with the offering
covered by such Registration Statement.
Excite will reimburse each Holder, such officer, director, employee or agent,
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 1.5(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such
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settlement is effected without the consent of Excite (which consent shall not be
unreasonably withheld), nor shall Excite 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 Holder, or by such, officer, director, employee, agent,
underwriter or controlling person of any Holder.
(b) By Holders. To the extent permitted by law, each Holder
will indemnify and hold harmless Excite, each of its directors, each of its
officers who have signed the Registration Statement, each person, if any, who
controls Excite within the meaning of the 1933 Act, any other employee or agent
of Excite, each other Holder, each person, if any, who controls such Holder
within the meaning of the 1933 Act, and any other employee or agent of such
Holder, against any losses, claims, damages or liabilities (joint or several) to
which Excite or any such director, officer, or controlling person, employee or
agent 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 Holder expressly
for use in connection with such Registration Statement; and such Holder will
reimburse any legal or other expenses reasonably incurred by Excite or any such
director, officer, or controlling person, employee or agent in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this subsection
1.5(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 such Holder, which consent shall not be unreasonably withheld; and provided
further, that the total amounts payable in indemnity by Holder under this
Section 1.5(b) in respect of any Violation shall not exceed the net proceeds
received by Holder in the registered offering out of which such Violation
arises.
(c) Notice. Promptly after receipt by an indemnified party
under this Section 1.5 of notice of the commencement of any action (including
any governmental action), such indemnified party will, if a claim for
indemnification in respect thereof is to be made against any indemnifying party
under this Section 1.5, deliver to the indemnifying party a written notice of
the commencement of such an action 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, if prejudicial to its ability to defend such action, shall (to the
extent of such prejudice) relieve such indemnifying party of any liability to
the indemnified party under this Section 1.5, 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 1.5.
(d) Defect Eliminated in Final Prospectus. The foregoing
indemnity agreements of Excite and such Holders are subject to the condition
that, insofar as they relate to
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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
becomes effective or in the amended Prospectus filed with the SEC pursuant to
SEC Rule 424(b) (the "FINAL PROSPECTUS"), such indemnity agreements shall not
inure to the benefit of any person if a copy of the Final Prospectus was
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 1933 Act.
(e) Contribution. In order to provide for just and equitable
contribution to joint liability under the 1933 Act in any case in which either
(i) Holder (and/or any officer, director, employee, agent, underwriter or
controlling person who may be indemnified under Section 1.5(a)), makes a claim
for indemnification pursuant to this Section 1.5 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 1.5 provides for indemnification in such case, or (ii)
contribution under the 1933 Act may be required on the part of such Holder
(and/or any officer, director, employee, agent, underwriter or controlling
person who may be indemnified under Section 1.5 (a)) in circumstances for which
indemnification is provided under this Section 1.5; then, and in each such case,
Excite and such Holder (and/or such other person) will contribute to the
aggregate losses, claims, damages or liabilities to which they may be subject
(after contribution from others) in proportion to their relative fault as
determined by a court of competent jurisdiction; provided however, that in no
event, except in instances of intentional fraud by the Holder in which case
there is no limitation, (i) shall any Holder be responsible for more than 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 or (ii) shall a Holder 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; and in
any event, no person or entity guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 0000 Xxx) will be entitled to contribution
from any person or entity who was not guilty of such fraudulent
misrepresentation.
(f) Survival. The obligations of Excite and such Holder under
this Section 1.5 shall survive the completion of any offering of Registrable
Securities in a registration statement, and otherwise.
1.6 "Market Stand-Off" Agreement. Each Holder hereby agrees that it
shall not, to the extent requested in writing by Excite or the managing
underwriter(s) (who shall be nationally recognized) of securities of Excite and
in connection with an underwritten public offering of securities of Excite with
gross proceeds to Excite of at least Twenty Million Dollars ($20,000,000), sell
or otherwise transfer or dispose of any Registrable Securities or any shares of
capital stock of Excite then owned by such Holder for up to ninety (90) days
following the effective date of the Registration Statement for such underwritten
offering, provided that all executive officers and directors of Excite enter
into similar agreements.
In order to enforce the foregoing covenant, Excite shall have the
right to place restrictive legends on the certificates representing the shares
subject to this Section and to impose stop transfer instructions with respect to
the shares of stock of each Holder (and the shares or securities of every other
person subject to the foregoing restriction).
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2. ASSIGNMENT.
2.1 Assignment. Notwithstanding anything herein to the contrary, the
registration rights of a Holder under Section 1 hereof may be assigned only to a
party who acquires from Holder at least One Hundred Thousand (100,000) shares of
Common Stock that constitute the original number of Registrable Securities (or,
if such Holder holds less than 100,000 shares of Common Stock that constitute
the Holder's original Registrable Securities, all of such Holder's shares of
Common Stock) (as such number may be adjusted to reflect subdivisions,
combinations and stock dividends of Excite's Common Stock) or as a distribution
made by a Holder which is a partnership to the partners of such Holder of
Registrable Securities; provided, however that no party may be assigned any of
the foregoing rights until Excite 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 Excite as to which the rights in question are
being assigned; 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.
3. GENERAL PROVISIONS.
3.1 Notices. Any notice, request or other communication required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given if personally delivered or if deposited in the U.S. mail by registered or
certified mail, return receipt requested, postage prepaid, as follows:
(a) if to Excite, at:
Excite, Inc.
000 Xxxxxxxx
Xxxxxxx Xxxx, XX 00000
Attention: Chief Financial Officer
Facsimile: 650/568-6039
with a copy to:
Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
Facsimile: 650/494-1417
(b) If to Holders:
To the address set forth on Exhibit A hereto
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with a copy to:
Venture Law Group
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: 425/739-8750
Any party hereto (and such party's permitted assigns) may by notice so given
provide and change its address for future notices hereunder. Notice shall
conclusively be deemed to have been given when personally delivered or when
deposited in the mail in the manner set forth above.
3.2 Entire Agreement. This Agreement and the Plan constitute and
contains the entire agreement and understanding of the parties with respect to
the subject matter hereof and supersede any and all prior negotiations,
correspondence, agreements, understandings, duties or obligations between the
parties respecting the subject matter hereof.
3.3 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 Excite and Holders of a majority of all Registrable
Securities then outstanding. Any amendment or waiver effected in accordance with
this Section 3.3 shall be binding upon each Holder, each permitted successor or
assignee of such Holder and Excite.
3.4 Governing Law. This Agreement shall be governed by and construed
exclusively in accordance with the laws of the State of California, excluding
that body of law relating to conflict of laws.
3.5 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.
3.6 Third Parties. Nothing in this Agreement, express or implied, is
intended to confer upon any person, other than the parties hereto and their
successors and assigns, any rights or remedies under or by reason of this
Agreement.
3.7 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.
3.8 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.
3.9 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.
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3.10 Costs And Attorneys' Fees. In the event that any action, suit
or other proceeding is instituted concerning or arising out of this Agreement or
any transaction contemplated hereunder, the prevailing party shall recover all
of such party's costs and attorneys' fees incurred in each such action, suit or
other proceeding, including any and all appeals or petitions therefrom.
3.11 Legends.
Each Holder understands that prior to the effectiveness of the
Registration Statement certificates or other instruments representing any of the
Registrable Securities acquired by Holder will bear legends substantially
similar to the following, in addition to any other legends required by federal
or state laws:
THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE
SECURITIES LAWS. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD
EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES
LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE ISSUER OF
THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED
TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE
STATE SECURITIES LAWS.
Each Holder agrees that, in order to ensure and enforce compliance
with the restrictions imposed by applicable law and those referred to in the
foregoing legends, or elsewhere herein, Excite may, prior to the effectiveness
of the Registration Statement issue appropriate "stop transfer" instructions to
its transfer agent, if any, with respect to any certificate or other instrument
representing Registrable Securities, or if Excite transfers its own securities,
that it may make appropriate notations to the same effect in Excite's records.
Each Holder also understands that subsequent to the effectiveness of
the Registration Statement, upon the written request of a Holder, the Holder may
surrender the certificates or other instruments representing any of the
Registrable Securities and Excite will, as promptly as practicable, cause the
legend described above to be replaced with a legend substantially similar to the
following (in addition to any other legends required by state laws):
THE RESALE OF THE SHARES REPRESENTED HEREBY MAY BE MADE ONLY
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT FILED PURSUANT TO
THE TERMS OF A REGISTRATION RIGHTS AGREEMENT BETWEEN EXCITE AND THE
STOCKHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF
EXCITE.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
EXCITE, INC. SHAREHOLDERS
By: /s/ XXXXXX X. XXXX By: /s/
-------------------------------- ------------------------------
Title: EVP - CFO Name:
-------------------------------- ------------------------------
Title:
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(if applicable)
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
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