1
EXHIBIT 4.11
AMENDMENT TO RESTATED AND AMENDED
INVESTORS' RIGHTS AGREEMENT
This Amendment to Restated and Amended Investors' Rights Agreement
(this "Amendment") is entered into as of June 25, 1997, by and among Excite,
Inc., a California corporation (the "Company") and the other persons and
entities whose names are set forth on the signature pages hereto. This Amendment
is intended to amend that certain Restated and Amended Investors' Rights
Agreement dated as of March 8, 1996, as amended on August 1, 1996 and November
25, 1996, by and among the Company and the investors listed on the signature
pages thereto (the "Rights Agreement").
RECITALS
A. On March 8, 1996, the Company entered into the Rights Agreement with certain
of its securities holders, which Rights Agreement was amended on August 1, 1996
and November 25, 1996.
B. Intuit Inc., a Delaware corporation ("Intuit") acquired 2,900,000 shares of
Common Stock of the Company (the "Purchased Shares") pursuant to a Stock
Purchase Agreement by and between the Company and Intuit, dated as of June 11,
1997 (the "Stock Purchase Agreement") and has the right to acquire additional
shares of Common Stock ("Anti-Dilution Shares") pursuant to the Right of First
Refusal Agreement between the Company and Intuit dated as of June 25, 1997.
C. In order to comply with the Stock Purchase Agreement, the Company and certain
Investors (as defined in the Rights Agreement) desire to amend the Rights
Agreement to provide for the inclusion of the Purchased Shares and Anti-Dilution
Shares as Registrable Securities (as defined in the Rights Agreement) thereunder
for the purposes of piggyback registration rights.
AGREEMENT
Now, Therefore, in consideration of the mutual promises and covenants set forth
herein, the Company 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:
"Intuit Registrable Securities. The term "Intuit Registrable
Securities" means the shares of Common Stock issued or issuable to Intuit Inc.,
a Delaware corporation ("Intuit") pursuant to (i) the Stock Purchase Agreement
dated as of June 11, 1997 between the Company and Intuit and (ii) the terms of
the Right of First Refusal Agreement dated as of June 25, 1997 between the
Company and Intuit.
2. Sections 2.1(b) and 2.1(d) of the Rights Agreement shall be amended
in their entirety as set forth below:
2
"(b) Registrable Securities. The term "Registrable Securities"
means: all the shares of Common Stock of the Company issued or issuable (i) upon
conversion of any shares of Series A Stock issued under the Series A Agreement
or under the Preferred Stock Purchase Warrant dated August 2, 1995 issued by the
Company to Lighthouse Capital Partners, L.P., or (ii) upon conversion of any
shares of Series B Stock issued under the Series B Agreement or under the
Preferred Stock Purchase Warrant dated November 17, 1995 issued by the Company
to Lighthouse Capital Partners, L.P., or (iii) upon conversion of any shares of
Series C Stock issued under the Series C Agreement or (iv) upon exercise of
those Common Stock Purchase Warrants dated November 6, 1995 issued by the
Company under the Series B Agreement to those Investors indicated on Exhibit A
(the "Common Stock Purchase Warrants") or (v) upon conversion of any shares of
Series D Stock issued under the Series D Agreement or (vi) to Xxxxx Xxxxx
pursuant to the Asset Acquisition Agreement or upon exercise of that certain
Stock Purchase Warrant issued to Xxxxx Xxxxx pursuant to the Asset Acquisition
Agreement or (vii) to Xxxxx Xxxxxx or Xxxxxx Xxxxxxxx, as shareholders of Go
Media, Inc., pursuant to that certain Agreement and Plan of Reorganization dated
July 31, 1996, by and between the Company, Go Media, Inc. and Xxxxx Xxxxxx (the
"Merger Shares"), (viii) to Intuit pursuant to that certain Stock Purchase
Agreement dated as of June 11, 1997 between the Company and Intuit, whereby
Intuit purchased 2,900,000 shares of the Company's Common Stock, (ix) to Intuit
pursuant to that certain Right of First Refusal Agreement dated as of June 25,
1997 between the Company and Intuit or (x) to Tribune Company or any other party
other than AOL Ventures, Inc. pursuant to Section 8 of the Series D Agreement
(the "IPO Shares") that are now owned or may hereafter be acquired by any
Investor or any Investor's permitted successors and assigns, excluding any
securities previously sold to the public or held by a Holder (as defined below)
whose securities set forth in subsections (i) through (ix) herein may be sold in
any three month period without registration under the Securities Act pursuant to
Rule 144 of the Securities Act; provided, however, that notwithstanding anything
to herein to the contrary, the Purchased Shares shall not be Registrable Shares
for purposes of Sections 2.2, 2.4 or 3."
"(d) Holder. For purposes of this Section 2 and Sections 3 and 4
hereof, the term "Holder" means any person owning of record Registrable
Securities that have not been sold to the public or pursuant to Rule 144
promulgated under the Securities Act or any assignee of record of such
Registrable Securities to whom rights under this Section 2 have been duly
assigned in accordance with this Agreement; provided, however, that for purposes
of this Agreement, a record holder of shares of Series A Stock or Series B Stock
or Series C Stock or Series D Stock convertible into such Registrable Securities
shall be deemed to be the Holder of such Registrable Securities; provided,
further, that a holder of Purchased Shares shall not be a Holder with respect to
such Purchased Shares for purposes of Sections 2.2, 2.4 or 3; and provided,
further, that the Company shall in no event be obligated to register shares of
Series A Stock or Series B Stock or Series C Stock or Series D Stock or warrants
therefor or for Common Stock, and that Holders of Registrable Securities will
not be required to convert their shares of Series A Stock or Series B Stock or
Series C Stock or Series D Stock into Common Stock in order to exercise the
registration rights granted hereunder, until immediately before the closing of
the offering to which the registration relates."
2
3
3. 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 and Intuit Registrable Securities
entitled to be included in such registration on a pro rata basis
according to the number of Registrable Securities, AOL Registrable
Securities and Intuit Registrable Securities then outstanding held by
each Holder requesting registration (including the Initiating Holders)
and each holder of AOL Registrable Securities and Intuit Registrable
Securities entitled to participate in such registration, respectively;
provided, however, that the number of Registrable Securities, AOL
Registrable Securities and Intuit 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."
4. 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 and 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
3
4
effected under that certain Registration Rights Agreement dated as of
November 25, 1996, by and between Excite, AOL and AOL Ventures, Inc. or
under the Registration Rights Agreement dated as of June 25, 1997 by
and between Excite and Intuit."
5. All notices and other communications under the Rights Agreement
shall be made to Intuit Inc. at the addresses specified below and thereafter at
such other address, notice of which is given in accordance with Section 6.1 of
the Rights Agreement:
Intuit Inc.
0000 Xxxxxxxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Treasurer, with a copy to General Counsel
6. The Rights Agreement as modified herein shall remain in full force
and effect as so modified.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
EXCITE, INC.
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Xxxxxx X. Xxxx
Executive Vice President, Chief
Administrative Officer and Chief
Financial Officer
INVESTORS:
INSTITUTIONAL VENTURE PARTNERS VI INSTITUTIONAL VENTURE MANAGEMENT VI
By: Its Managing General Partner
Institutional Venture Management VI
By: /s/ Xxxxxxxx X. Xxxx By: /s/ Xxxxxxxx X. Xxxx
-------------------------------------- ---------------------------------
Xxxxxxxx X. Xxxx, General Partner Xxxxxxxx X. Xxxx, General Partner
IVP FOUNDERS FUND I, L.P. KPCB INFORMATION SCIENCES ZAIBATSU
FUND II
By: Its General Partner By: Its General Partner
Institutional Venture Management VI KPCB VII Associates
By: /s/ Xxxxxxxx X. Xxxx By: /s/ Xxxxx Xxxxxx
------------------------------------ ---------------------------------
Xxxxxxxx X. Xxxx, General Partner Xxxxx Xxxxxx, General Partner
(SIGNATURE PAGE TO AMENDMENT TO RESTATED AND AMENDED INVESTORS' RIGHTS
AGREEMENT)
4
5
KPCB VII FOUNDERS FUND XXXXXXX XXXXXXX XXXXXXXX & XXXXX VII
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxx Xxxxxx
--------------------------------- -------------------------------------
Xxxxx Xxxxxx, General Partner Xxxxx Xxxxxx, General Partner
Agreed and Accepted:
INTUIT INC. TRIBUNE COMPANY
By: /s/ Xxxxxxx Xxxxxx By:
-------------------------------- ------------------------------------
(SIGNATURE PAGE TO AMENDMENT TO RESTATED AND AMENDED INVESTORS' RIGHTS
AGREEMENT)
