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Exhibit 4.04
AMENDMENT TO RESTATED AND AMENDED
INVESTORS' RIGHTS AGREEMENT
This Amendment (the "Amendment") is entered into as of November 25,
1996, by and among Excite, Inc., a California corporation ("Excite") and the
other persons and entities whose names are set forth on the signature pages
hereto, including AOL Ventures, Inc. ("AOL Ventures"), a Delaware corporation
and wholly owned subsidiary of America Online, Inc., a Delaware corporation
("AOL"). This Amendment amends that certain Restated and Amended Investors'
Rights Agreement dated as of March 8, 1996 by and among Excite and the
investors listed on the signature pages thereto, as further amended by that
certain Amendment to Restated and Amended Investors' Rights Agreement dated as
of August 1, 1996 by and among Excite and the investors listed on the signature
pages thereto (the "Rights Agreement").
RECITALS
A. On March 8, 1996, Excite entered into the Rights Agreement
with certain investors, including AOL Ventures, in connection with the sale of
its Series D Preferred Stock. On August 1, 1996, the Rights Agreement was
amended in connection with the acquisition by Excite of Go Media, Inc.
B. AOL and Excite have entered into a certain Acquisition
Agreement dated as of November 25, 1996 (the "Acquisition Agreement") and other
related agreements, pursuant to which AOL will be issued or have the right to
be issued shares of Excite's Series E Preferred Stock. The shares of Common
Stock into which such Series E Preferred Stock is convertible shall have the
registration rights set forth in that certain Registration Rights Agreement
dated as of November 25, 1996 by and between Excite, AOL and AOL Ventures (the
"Registration Rights Agreement").
C. The Registration Rights Agreement provides AOL with the right
to request various types of registrations of Excite securities held by it (the
"AOL Registrations"). For various reasons, AOL desires and it would not be
practical for the parties to the Rights Agreement (the "Investors") to have
piggyback registration rights with respect to the AOL Registrations and Excite
is therefore asking the Investors to waive such rights. In addition, certain
changes are needed in order for the Rights Agreement and Registration Rights
Agreement to be implemented in parallel without any conflicts.
AGREEMENT
Now, Therefore, in consideration of the mutual promises and covenants
set forth herein, Excite and the Investors hereby agree that the Rights
Agreement shall be amended as follows:
1. Section 2.1 of the Rights Agreement is amended to add thereto
a new definition as follows:
"AOL Registrable Securities". "AOL Registrable Securities"
means the shares of Common Stock issued or issuable to America Online,
Inc. ("AOL") upon the conversion of the Series E Preferred Stock
issued by the Company to AOL pursuant to (i) the Acquisition Agreement
dated as of November 25, 1996, between the Company, AOL and Global
Network Navigator, Inc. (the "Acquisition Agreement"), (ii) the
Operating Agreement, dated as of November 25, 1996, between the
Company and AOL, (iii) the
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exercise by AOL of its Warrant dated March 8, 1996, as amended,
and (iv) the exchange of shares of Common Stock of the Company held by
AOL as of November 25, 1996 in connection with the closing of the
transactions provided for in the Acquisition Agreement."
2. The fourth sentence of Section 2.2(b) of the Rights Agreement
shall be amended to read in its entirety as follows:
"Notwithstanding any other provision of this Section 2.2, if
the underwriter(s) advise(s) the Company in writing that marketing
factors require a limitation of the number of securities to be
underwritten then the Company shall so advise all Holders of
Registrable Securities which would otherwise be registered and
underwritten pursuant hereto, and the number of Registrable Securities
that may be included in the underwriting shall be reduced as required
by the underwriter(s) and allocated among the Holders of Registrable
Securities and the holders of any AOL Registrable Securities entitled
to be included in such registration on a pro rata basis according to
the number of Registrable Securities and AOL Registrable Securities
then outstanding held by each Holder requesting registration
(including the Initiating Holders) and each holder of AOL Registrable
Securities entitled to participate in such registration, respectively;
provided, however, that the number of Registrable Securities and AOL
Registrable Securities to be included in any such underwriting and
registration shall not be reduced unless all other securities of the
Company are first entirely excluded from the underwriting and
registration."
3. Section 2.3 of the Rights Agreement shall be amended to read
in its entirety as follows:
"2.3 Piggyback Registrations. The Company shall notify all
Holders of Registrable Securities in writing at least thirty (30) days
prior to filing any registration statement under the Securities Act
for purposes of effecting a public offering of securities of the
Company (including, but not limited to, registration statements
relating to secondary offerings of securities of the Company, but
excluding registration statements relating to any registration under
Section 2.2 or 2.4 of this Agreement or to any employee benefit plan
or a corporate reorganization) and will afford each such Holder an
opportunity to include in such registration statement all or any part
of the Registrable Securities then held by such Holder together with
the holders of any other securities of the Company entitled to
inclusion in such registration, on a pro-rata basis. Each Holder
desiring to include in any such registration statement all or any part
of the Registrable Securities held by such Holder shall, within twenty
(20) days after receipt of the above-described notice from the
Company, so notify the Company in writing, and in such notice shall
inform the Company of the number of Registrable Securities such Holder
wishes to inched in such registration statement. If a Holder decides
not to request to include all of its Registrable Securities in any
registration statement thereafter filed by the Company, such Holder
shall nevertheless continue to have the right to include any
Registrable Securities in any subsequent registration statement or
registration statements as may be filed by the Company with respect to
offerings of its securities, all upon the terms and conditions set
forth herein. Notwithstanding the foregoing, the registration rights
granted to the Investors in this Section 2.3 shall not be applicable
with respect to any registrations effected under that certain
Registration Rights Agreement dated as of November 25, 1996, by and
between Excite, AOL and AOL Ventures, Inc."
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4. Subsections (b)(2) and (3) of Section 2.4 shall be amended to
read in their entirety as follows:
"2.4(b)(2) if the Holders, together with the holders of any
other securities of the Company entitled to inclusion in such
registration, propose to sell Registrable Securities and such other
securities (if any) at an aggregate price to the public of less than
one million seven hundred fifty thousand dollars ($1,750,000);
(3) if the Company shall furnish to the Holders a certificate
signed by the President or Chief Executive Officer of the Company
stating that in the good faith judgment of the Board of Directors of
the Company, it would be seriously detrimental to the Company and its
shareholders for such Form S-3 Registration to be effected at such
time, in which event the Company shall have the right to defer the
filing of the Form S-3 registration statement no more than once during
any twelve month period for a period of not more than ninety (90) days
after receipt of the request of the Holder or Holders under this
Section 2.4; or"
5. AOL Ventures, Inc. shall be removed as a party to the Rights
Agreement.
6. The Rights Agreement as modified herein shall remain in full
force and effect as so modified.
7. For the convenience of the parties, this Amendment may
be executed in one or more 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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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
EXCITE, INC.
By: /s/Xxxxxx Xxxx
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Xxxxxx Xxxx, President
INVESTORS:
INSTITUTIONAL VENTURE PARTNERS VI INSTITUTIONAL VENTURE
By: Its Managing General Partner MANAGEMENT VI
Institutional Venture Management VI
By: /s/ XXXXXXXX X. XXXX By: /s/ XXXXXXXX X. XXXX
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XXXXXXXX X. XXXX, GENERAL PARTNER XXXXXXXX X. XXXX, GENERAL PARTNER
IVP FOUNDERS FUND I, X.X. XXXXXXX XXXXXXX XXXXXXXX &
By: Its General Partner XXXXX VII
Institutional Venture Management VI
By: /s/ XXXXXXXX X. XXXX By: /s/ XXXXX XXXXXX
--------------------------------- ---------------------------------
XXXXXXXX X. XXXX, GENERAL PARTNER XXXXX XXXXXX, GENERAL PARTNER
KPCB VII FOUNDERS FUND KPCB INFORMATION SCIENCES
ZAIBATSU FUND II
By: Its General Partner
KPCB VII Associates
By: /s/ XXXXX XXXXXX By /s/ XXXXX XXXXXX
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XXXXX XXXXXX, GENERAL PARTNER XXXXX XXXXXX, GENERAL PARTNER
TRIBUNE COMPANY AOL VENTURES, INC.
By: /s/Xxxx Xxxxx By: /s/Miles Gilburn
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Name: Xxxx Xxxxx Name: Miles Gilburn
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Title: President Title: Senior VP, Corporate
---------------------------- Development
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[AMENDMENT TO INVESTORS' RIGHTS AGREEMENT]
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XXXXXXX RIVER PARTNERSHIP VII CUC INTERNATIONAL INC.
By: /s/ Xxxxxxx X. Xxxxx, Xx. By:
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Name: Xxxxxxx X. Xxxxx, Xx. Name:
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Title: General Partner
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IDG HOLDINGS, INC. ITOCHU TECHNOLOGY, INC.
By: By: /s/ Sigeki Nishiyamo
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Name: Name: Sigeki Nishiyamo
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Title: Title: Executive Vice President
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ITOCHU CORPORATION F&W INVESTMENTS 1994
By: /s/ Xxxx Xxxxxxxxx By: /s/Xxxxx Xxxxxx
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Name: Xxxx Xxxxxxxxx Name: Xxxxx Xxxxxx
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Title: General Manager, Title: Partner
Information Technology ------------------------------
and Information Department
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ROSEWOOD STONE GROUP, INC. LIGHTHOUSE CAPITAL PARTNERS, L.P.
By: /s/ Xxxxxxx Xxxxxx By: /s/Xxxxxxx Xxxxxxxxxxxx
--------------------------- -------------------------------
Name: Xxxxxxx Xxxxxx Name: Xxxxxxx Xxxxxxxxxxxx
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Title: President Title: Managing Director
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/s/ Xxxxx Xxxxx /s/ Xxxxxx Xxxxxxx
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XXXXX XXXXX XXXXXX XXXXXXX
/s/ Xxxxx Xxxxxx /s/ Xxxxxx Xxxxxxxx
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XXXXX XXXXXX XXXXXX XXXXXXXX
[AMENDMENT TO INVESTORS' RIGHTS AGREEMENT]
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