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EXHIBIT 4.10
RIGHT OF FIRST REFUSAL AGREEMENT
This Right of First Refusal Agreement (this "AGREEMENT") is made and
entered into as of June 25, 1997 by and among EXCITE, INC., a California
corporation (the "COMPANY") and INTUIT INC., a Delaware corporation (the
"INVESTOR").
R E C I T A L S
A. The Company and Investor have entered into a Stock Purchase
Agreement dated as of June 11, 1997 (the "STOCK PURCHASE AGREEMENT"), pursuant
to which the Company will sell 2,900,000 shares of its Common Stock to Investor
(the "PURCHASED SHARES").
B. The Stock Purchase Agreement provides that, as a condition to
Investor's purchase of the Purchased Shares thereunder, the Company will enter
into this Agreement and Investor will be granted the rights set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises hereinafter set forth, the parties hereto agree as follows:
1. RIGHT OF FIRST REFUSAL; PURCHASE RIGHT.
1.1 Right of First Refusal. Investor or any party to whom
Investor's rights under this Section 1 have been duly assigned in accordance
with Section 2.1 hereof (Investor or any such assignee being hereinafter
referred to as the "RIGHTS HOLDER") has the right of first refusal (the "RIGHT
OF FIRST REFUSAL") to purchase all or any part of the Rights Holder's Pro Rata
Share (as defined below), of all (or any part) of any "New Securities" (as
defined in Section 1.2(a)) that the Company may from time to time issue after
the date of this Agreement, plus such additional portion of the New Securities
such that Rights Holder's Pro Rata Share of the Company equals up to nineteen
percent (19%) of the Company immediately after the issuance of such New
Securities. A holder's "PRO RATA SHARE" for purposes of this Agreement is the
ratio of (a) the number of shares of the Company's Common Stock (on an
as-converted to Common Stock basis) as to which such holder is the owner, to (b)
a number of shares of Common Stock of the Company equal to the sum of (i) the
total number of shares of Common Stock of the Company then outstanding plus (ii)
the total number of shares of Common Stock of the Company into which all then
outstanding shares of voting Preferred Stock of the Company are then
convertible.
1.2 New Securities; Procedures; Failure to Exercise.
(a) New Securities. "NEW SECURITIES" shall mean any
Common Stock or Preferred Stock of the Company, whether now authorized or not,
and rights, options or warrants to purchase such Common Stock or Preferred
Stock, and securities of any type whatsoever that are, or may become,
convertible or exchangeable into such Common Stock or
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Preferred Stock which are to be sold in a financing transaction solely for cash
consideration. For purposes of illustration, the term "New Securities"
specifically excludes, without limitation:
(i) shares of the Company's Common Stock (and/or
options or warrants therefor) issued or authorized for issuance
(including shares authorized by the Company's Board of Directors
subject to approval by its shareholders at the Company's 1997 Annual
Meeting of Shareholders, to be held on June 19, 1997) to employees,
officers, directors, contractors, advisors or consultants of the
Company pursuant to agreements or plans approved by the Board of
Directors of the Company;
(ii) any securities issuable upon conversion of
or with respect to any then outstanding shares of Preferred Stock of
the Company;
(iii) any securities issuable upon exercise of any
options, warrants or rights to purchase any securities of the Company
outstanding or authorized for issuance (including shares authorized by
the Company's Board of Directors subject to approval by its
shareholders at the Company's 1997 Annual Meeting of Shareholders, to
be held on June 19, 1997) on the date of this Agreement ("OPTION AND
WARRANT SECURITIES") and any securities issuable upon the exercise or
conversion of any Option and Warrant Securities;
(iv) shares of the Company's Common Stock or
Preferred Stock issued in connection with any stock split or stock
dividend;
(v) any shares of the Company's Common Stock or
Preferred Stock (and/or options or warrants therefor) issued or
issuable to parties providing the Company with equipment leases, loans,
credit lines, guaranties of indebtedness, cash price reductions or
similar financing; or
(vi) securities issued for consideration other
than cash pursuant to a merger, consolidation, acquisition or similar
business combination.
(b) Procedures. In the event that the Company proposes to
undertake an issuance of New Securities, it shall give to the Rights Holder
written notice of its intention to issue New Securities (the "NOTICE"),
describing the type of New Securities and the price and the general terms upon
which the Company proposes to issue such New Securities. The Rights Holder shall
have thirty (30) days from the date of mailing of any such Notice to agree in
writing to purchase all or any part of the Rights Holder's Pro Rata Share of
such New Securities for the price and upon the general terms specified in the
Notice by giving written notice to the Company and stating therein the quantity
of New Securities to be purchased (not to exceed the Rights Holder's Pro Rata
Share). If the Rights Holder fails to so agree in writing within such thirty
(30) day period to purchase the Rights Holder's full Pro Rata Share of an
offering of New Securities, then the Rights Holder shall forfeit the right
hereunder to purchase that part of its Pro Rata Share of such New Securities
that it did not so agree to purchase.
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(c) Failure to Exercise. In the event that the Rights
Holder fails to exercise in full the Right of First Refusal within such thirty
(30) day period, then the Company shall have 90 days thereafter to sell the New
Securities with respect to which the Rights Holder's Right of First Refusal
hereunder was not exercised, at a price and upon general terms not materially
more favorable to the purchasers thereof than specified in the Company's Notice
to the Rights Holder. In the event that the Company has not issued and sold the
New Securities within such 90 day period, then the Company shall not thereafter
issue or sell any New Securities without again first offering such New
Securities to the Rights Holder pursuant to Sections 1.1 and 1.2 hereof.
1.3 Termination. This Agreement shall terminate and have no
further force or effect at such time as Investor (or any party to whom
Investor's rights under this Section 1 have been duly assigned in accordance
with Section 2.1 hereof) ceases to hold at least ten percent (10%) of the
outstanding Common Stock (including shares of Common Stock issuable upon
conversion of outstanding shares of Preferred Stock) of the Company.
2. ASSIGNMENT AND AMENDMENT.
2.1 Assignment. Notwithstanding anything herein to the
contrary, this Agreement and the rights granted to Investor hereunder are
personal to Investor and may not be assigned to any other person; provided,
however, that this Agreement and all of the rights granted to Investor hereunder
may be assigned to (i) a purchaser in a private, block sale transaction of all
of the shares of Common Stock of the Company held by Investor, which purchaser
is reasonably acceptable to the Company or (ii) any party who acquires ownership
or control of Intuit through a merger, consolidation, sale of assets or similar
business combination (either such party is referred to as an "ASSIGNEE");
provided further, that the Assignee expressly agrees in writing to be bound by
the standstill and resale provisions of Sections 4.5 and 4.6 of the Stock
Purchase Agreement.
2.2 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and Investor.
3. MISCELLANEOUS.
3.1 Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties.
3.2 Governing Law. This Agreement shall be governed by and
construed under the internal laws of the State of California as applied to
agreements among California residents entered into and to be performed entirely
within California, without reference to principles of conflict of laws or choice
of laws.
3.3 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but which together
shall constitute one and the same instrument.
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3.4 Headings. The headings and captions used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement. All references in this Agreement to sections,
paragraphs, exhibits and schedules shall, unless otherwise provided, refer to
sections and paragraphs hereof and exhibits and schedules attached hereto, all
of which exhibits and schedules are incorporated herein by this reference.
3.5 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
deposit with the United States Post Office, by registered or certified mail,
postage prepaid and addressed to the party to be notified in the case of the
Company, at 000 Xxxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000, attention: General
Counsel, with a copy to Xxxx X. Xxxxxxx, Xxxxxxx & West LLP, Two Palo Xxxx
Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000, or in the case of Investor, at 0000
Xxxxxxxxxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000, attention: Treasurer, with a copy
to: General Counsel or at such other address as any party may designate by
giving ten (10) days advance written notice to the other party.
3.6 Costs, Expenses. All costs in connection with the
preparation, execution, delivery and performance of this Agreement (including
costs of Investor) shall be borne by the Company.
3.7 Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision(s) shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision(s) were so excluded and shall be enforceable in
accordance with its terms.
3.8 Entire Agreement. This Agreement constitutes 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 with
respect to the subject matter hereof.
3.9 Nasdaq Listing. The Company shall cause all shares of
Common Stock issuable to Investor pursuant to the terms hereof to be approved
for quotation on the Nasdaq National Market.
3.10 Further Assurances. From and after the date of this
Agreement, upon the request of Investor or the Company, the Company and Investor
shall execute and deliver such instruments, documents or other writings as may
be reasonably necessary or desirable to confirm and carry out and to effectuate
fully the intent and purposes of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
THE COMPANY: INVESTOR:
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EXCITE, INC. INTUIT INC.
a California corporation a Delaware corporation
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxxxxx Xxxxxx
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Title: Executive VP, CAO/CFO Title: Exec. VP
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