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EXHIBIT 4.09
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of June 25, 1997 (the "EFFECTIVE DATE") by and between EXCITE,
INC., a California corporation ("EXCITE") and INTUIT INC., a Delaware
corporation ("INTUIT").
R E C I T A L S
A. Excite and Intuit have entered into a certain Stock Purchase
Agreement dated as of June 11, 1997 (the "STOCK PURCHASE AGREEMENT"), pursuant
to which Excite will sell 2,900,000 shares of its Common Stock to Intuit (the
"PURCHASED SHARES").
B. Excite and Intuit have entered into a certain Right of First Refusal
Agreement dated as of June 25, 1997 (the "RIGHT OF FIRST REFUSAL AGREEMENT"),
pursuant to which Excite will be obligated to sell shares of its Common Stock to
Intuit under certain circumstances (the "ANTI-DILUTION SHARES").
C. As a condition to Intuit agreeing to purchase the Purchased Shares
and entering into the Right of First Refusal Agreement, Excite has agreed to
grant to Intuit certain registration rights with respect to the Purchased Shares
and the Anti-Dilution Shares, as more fully set forth herein.
NOW, THEREFORE, in consideration of the above recitals and the mutual
covenants hereinafter set forth, Excite and Intuit 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) Intuit Registrable Securities. The term "INTUIT
REGISTRABLE SECURITIES" means: (1) all of the Purchased Shares, (2) any
Anti-Dilution Shares and (3) 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 Purchased Shares or any Anti-Dilution Shares; excluding in
all cases, however, (i) any Intuit Registrable Securities sold by a person in a
transaction in which rights under this Section 1 are not assigned in accordance
with this Agreement, or (ii) any Intuit Registrable Securities sold in a public
offering pursuant to a registration statement filed with the SEC or sold
pursuant to Rule 144 promulgated under the 1933 Act ("RULE 144").
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(c) Prospectus: The term "PROSPECTUS" shall mean the prospectus
included in any Shelf Registration Statement, Additional Shelf Registration
Statement, Anti-Dilution Registration Statement or other 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 Intuit Registrable
Securities covered by such Shelf Registration Statement, Additional Shelf
Registration Statement or Anti-Dilution 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) SEC. The term "SEC" or "COMMISSION" means the U.S.
Securities and Exchange Commission.
(e) Shelf Registration Statement. See Section 1.2(a).
(f) Subsequent Shelf Registration Statement. See Section 1.2(f)
(g) Additional Shelf Registration Statement. See Section 1.2(c).
(h) Anti-Dilution Registration Statement. See Section 1.2(d).
1.2 Shelf Registration.
(a) Initial Registration. Excite shall prepare and file with the
SEC within 30 days following the Second Closing (as defined in Section 2.1 of
the Stock Purchase Agreement), and use its best efforts to have declared
effective as soon as practicable thereafter, a registration statement providing
for the resale by Intuit of all of the Intuit Registrable Securities then owned
by Intuit in accordance with the manner of sale provisions set forth in Rule
144(f) under the 1933 Act or otherwise in customary brokerage transactions on
the Nasdaq National Market or other public market on which Excite's shares of
Common Stock are traded (a "SHELF REGISTRATION STATEMENT"). Excite shall use its
best efforts to keep the Shelf 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 Shelf Registration
Statement, for such period (the "INITIAL EFFECTIVENESS PERIOD") ending on the
date that is two years after the date of the Second Closing or such shorter
period ending (A) when the Intuit Registrable Securities cease to meet the
definition of Intuit Registrable Securities pursuant to Section 1.1(b) or (B)
Excite's obligations hereunder terminate pursuant to Section 1.9.
(b) Subsequent Registration. If, after the end of the Initial
Effectiveness Period, Intuit continues to hold Intuit Registrable Securities,
Excite shall promptly prepare and file with the SEC and use its best efforts to
have declared effective as soon as practicable thereafter, a registration
statement providing for the resale by Intuit of all Intuit Registrable
Securities then owned by Intuit in the same manner as the Self Registration
Statement (a "SUBSEQUENT SHELF REGISTRATION STATEMENT"). Excite shall use its
best efforts to
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keep the Subsequent Shelf Registration Statement effective for such period (the
"SUBSEQUENT EFFECTIVENESS PERIOD") ending on the date that is one year after the
filing of the Subsequent Shelf Registration Statement, or such shorter period
ending (A) when the Intuit Registrable Securities cease to meet the definition
of Intuit Registrable Securities pursuant to Section 1.1(b) or (B) Excite's
obligations hereunder terminate pursuant to Section 1.9.
(c) Extension. If after the Subsequent Effectiveness Period, any
registration rights with respect to any securities of Excite which were granted
subsequent to the date of this Agreement ("ADDITIONAL REGISTRATION RIGHTS") are
still in effect and Intuit holds Intuit Registrable Securities, Excite shall
file an additional Shelf Registration Statement (an "ADDITIONAL SHELF
REGISTRATION STATEMENT") and shall use its best efforts to keep such Additional
Shelf 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 Additional Shelf Registration Statement, for
such period (the "ADDITIONAL EFFECTIVENESS PERIOD") ending on the date that such
Additional Registration Rights expire or such shorter period ending (A) when the
Intuit Registrable Securities cease to meet the definition of Intuit Registrable
Securities pursuant to Section 1.1(b), (B) Excite's obligations terminate
pursuant to Section 1.9 or (c) two years from the date of filing of such
Additional Shelf Registration Statement.
(d) Anti-Dilution Shares. If at any time subsequent to the
filing of the most recently filed Anti-Dilution Registration Statement (as
defined below) or, if no Anti-Dilution Registration Statement has been filed,
subsequent to the filing of the Shelf Registration Statement, the Company has
sold Anti-Dilution Shares having an aggregate purchase price of $250,000, then
the Company shall prepare and file with the SEC a registration statement
providing for the resale of such Anti-Dilution Shares in accordance with the
manner of sale provisions set forth in Rule 144(f) under the 1933 Act or
otherwise in customary brokerage transactions on the Nasdaq National Market or
other public market on which Excite's shares of Common Stock are traded (an
"ANTI-DILUTION REGISTRATION STATEMENT"). Excite shall use its best efforts to
keep such Anti-Dilution Registration Statement continuously effective pursuant
to the rules, regulations or instructions under the 1933 Act applicable to the
registration statement for such Anti-Dilution Registration Statement until the
expiration of (i) the Initial Effectiveness Period (if such Anti-Dilution
Registration Statement was filed during the Initial Effectiveness Period), (ii)
the Subsequent Effectiveness Period (if such Anti-Dilution Registration
Statement was filed during the Subsequent Effectiveness Period) or (iii) the
expiration of the Additional Effectiveness Period during which such
Anti-Dilution Registration Statement was filed (if such Anti-Dilution
Registration Statement was filed during an Additional Effectiveness Period) or
such shorter period ending (A) when the Intuit Registrable Securities cease to
meet the definition of Intuit Registrable Securities pursuant to Section 1.1(b)
or (B) Excite's obligations terminate pursuant to Section 1.9.
(e) The obligations of Excite pursuant to Sections 1.2(a),
1.2(b), 1.2(c) and 1.2(d) hereof are subject to the following:
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(i) that, subject to the provisions of Section 4.6 of the
Stock Purchase Agreement, Intuit will sell the Intuit Registrable Securities
pursuant to any Shelf Registration Statement or Additional Shelf Registration
Statement (and any Anti-Dilution Registration Statement) only during a
"PERMITTED WINDOW" (as defined below), provided that there will be no more than
four Permitted Windows during the Initial Effectiveness Period and no more than
two Permitted Windows during each year that an Additional Effectiveness Period
is in effect; and that there will be at least a 90-day interval between any two
Permitted Windows;
(ii) if Excite furnishes to Intuit a certificate signed by
the President or Chief Executive Officer of Excite stating that, in the good
faith judgment of the Board of Directors of Excite, it would be seriously
detrimental to Excite and its shareholders for such Shelf Registration
Statement, Additional Shelf Registration Statement or Anti-Dilution Registration
Statement to be effective at such time (or, in the case a "NOTICE OF RESALE" (as
defined below) has been given, that would be seriously detrimental to Excite and
its shareholders for the Permitted Window to commence at such time) due to (A)
the existence of a material development or potential material development
involving Excite which Excite would be obligated to disclose in the Prospectus
contained in the Shelf Registration Statement, Additional Shelf Registration
Statement or Anti-Dilution 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) concurrent public filings with the SEC of
other registration statements; in which event(s) Excite will have the right to
defer the filing (the "DEFERRAL RIGHT") of the Shelf Registration Statement or
an Additional Shelf Registration Statement (or the commencement of the Permitted
Window, as the case may be) for a period of not more than 60 days after the date
it would otherwise be required to file the Shelf Registration Statement or
Additional Shelf Registration Statement pursuant to Section 1.2(a), (b), (c) or
(d) (or after receipt of the Notice of Resale, as the case may be); provided,
however, that Excite will not utilize the Deferral Right more than once in any
twelve month period; and provided further, however, that Excite may defer the
filing of the Shelf Registration Statement or Additional Shelf Registration
Statement (or the commencement of the Permitted Window as the case may be) for
up to 90 days if the material development or potential material development or
SEC filing that is the reason for the deferral directly relates to Intuit and
for up to 90 days if so requested by an underwriter in connection with an
underwritten offering of Excite securities so long as the selling shareholders
in such underwritten offering are subject to a lock-up agreement of the same
duration (other than with respect to Excite securities to be sold by such
selling shareholders in such underwritten offering); and
(iii) that Excite will not be required to effect any such
registration, qualification or compliance in any particular jurisdiction in
which Excite would thereby be required to qualify to do business or to execute a
general consent to service of process.
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(f) Permitted Window. For the purposes of this Section 1.2, a
"PERMITTED WINDOW" is a period of 30 consecutive calendar days commencing upon
receipt by Intuit of Excite's written notification to Intuit in response to a
Notice of Resale that the Prospectus contained in the Shelf Registration
Statement or Additional Shelf Registration Statement is available for resale. In
order to cause a Permitted Window to commence, Intuit must first give written
notice to Excite of its present intention to sell part or all of the Intuit
Registrable Securities pursuant to such registration (a "NOTICE OF RESALE").
Upon receipt of such Notice of Resale, Excite will give written notice to Intuit
as soon as practicable, but in no event not more than five business days after
such receipt, that (A) the Prospectus contained in the Shelf Registration
Statement or Additional Shelf Registration Statement is current and that the
Permitted Window will commence on the date such notice is received by Intuit ,
(B) it is necessary for Excite to supplement the Prospectus or make an
appropriate filing under the Securities Exchange Act of 1934, as amended, (the
"1934 ACT") so as to cause the Prospectus to become current (unless a
certificate of the President is delivered as provided in 1.2(e)(ii) above), or
(C) Excite is required under the 1933 Act and the regulations thereunder to
amend the Shelf Registration Statement or Additional Shelf Registration
Statement in order to cause the Prospectus to be current (unless a certificate
of the President is delivered as provided in 1.2(e)(ii) above). In the event
that Excite determines that a supplement to the Prospectus, the filing of a
report pursuant to the 1934 Act or an amendment to the Shelf Registration
Statement or Additional Shelf Registration Statement required under the 1933
Act, as provided above, is necessary, it will take such actions as soon as
practicable; whereupon it will notify Intuit of the filing of such supplement,
report or amendment, and, in the case of an amendment, the effectiveness
thereof, and the Permitted Window will then commence.
(g) Closing of Permitted Window. During a Permitted Window and
in the event (i) of the happening of any event of the kind described in Section
1.5(f) hereof or (ii) that, in the judgment of Excite's Board of Directors, it
is advisable to suspend use of the Prospectus for a discrete period of time due
to pending corporate developments or public filings with the SEC, Excite shall
deliver a certificate in writing to Intuit to the effect of the foregoing and,
upon receipt of such certificate, the Permitted Window shall terminate. The
Permitted Window shall resume (and such resumed Permitted Window shall remain in
effect for a period of 30 consecutive calendar days unless suspended pursuant to
the provisions of this Section 1.5(g)) upon Intuit's receipt of copies of the
supplemented or amended Prospectus, or at such time as Intuit is advised in
writing by Excite that the Prospectus may be used, and at such time as Intuit
has received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in such Prospectus and which
are required to be delivered as part of the Prospectus. Excite will use its best
efforts to ensure that the use of the Prospectus may be resumed, and the
Permitted Window will commence, as soon as practicable and, in the case of a
pending corporate development or SEC filing, as soon, in the judgment of
Excite's chief executive officer, as disclosure of the material information
relating to such pending corporate development or SEC filing would not have a
materially adverse effect on Excite's ability to consummate the transaction, if
any, to which such corporate development or SEC filing relates, but in any event
the Permitted Window shall resume no later than the later of (x) 60 days after
it has been terminated pursuant to this Section 1.2(g) or (y) the beginning of
the calendar quarter subsequent to the calendar quarter in which the Permitted
Window was terminated.
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(h) Expenses. All expenses, other than underwriting discounts
and brokers commissions, incurred by Excite in connection with the Shelf
Registration Statement, the Subsequent Shelf Registration Statement, any
Additional Shelf Registration Statement, any Anti-Dilution Registration
Statement and actions taken by Excite in connection with each Permitted Window
shall be borne by Excite. Notwithstanding the foregoing, Excite shall not be
required to pay for any fees and expenses in connection with the commencement of
a Permitted Window begun pursuant to this Section 1.2 if the request to commence
the Permitted Window is subsequently withdrawn at the request of Intuit, unless
such withdrawal is the result of a material adverse change in the business of
Excite that was unknown to Intuit at the time the request to commence the
Permitted Window was made and the withdrawal of such request is made with
reasonable promptness upon learning of such material adverse change. A
withdrawal of a request to commence a Permitted Window will not be applied
against the maximum of four Permitted Windows during the Initial Effectiveness
Period or two Permitted Windows during any Additional Effectiveness Period
provided to Intuit under this Agreement if such withdrawal was made pursuant to
the immediately preceding sentence or if the withdrawal is at the request of
Excite.
1.3 Demand Registration.
(a) Request by Intuit. If Excite shall receive a written request
from Intuit that Excite effect a registration statement under the 1933 Act and
any related qualification or compliance with respect to all or a part of the
Intuit Registrable Securities, then Excite shall, as soon as practicable, effect
such registration and all such qualifications and compliances as may be so
requested and as would permit or facilitate the sale and distribution of all or
such portion of Intuit's Registrable Securities which Intuit requests to be
registered.
(b) Underwriting. If Intuit intends to distribute the Intuit
Registrable Securities covered by its request by means of an underwriting, then
it shall so advise Excite as a part of its request made pursuant to this Section
1.3. Intuit and Excite shall enter into an underwriting agreement in customary
form with the managing underwriter or underwriters selected for such
underwriting by Intuit. Notwithstanding any other provision of this Section 1.3,
if the underwriter(s) advise(s) Excite or Intuit in writing that marketing
factors require a limitation of the number of securities to be underwritten then
Excite shall so advise Intuit, and the number of Intuit Registrable Securities
that may be included in the underwriting shall be reduced as required by the
underwriter(s), provided that any securities included in the underwriting by
Excite or holders of Excite securities other than Intuit shall be withdrawn
completely from the underwriting before the number of Intuit Registrable
Securities that may be included in the underwriting shall be reduced. Any Intuit
Registrable Securities excluded and withdrawn from such underwriting shall be
withdrawn from the registration.
(c) Maximum Number of Demand Registrations. Excite is obligated
to effect only two (2) such registrations pursuant to this Section 1.3.
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(d) Deferral; Jurisdictional Requirements. Notwithstanding the
foregoing, if Excite shall furnish to Intuit a certificate signed by the
President or Chief Executive Officer of Excite stating that in the good faith
judgment of the Board of Directors of Excite, it would be seriously detrimental
to Excite and its shareholders for such registration statement to be filed and
it is therefore essential to defer the filing of such registration statement,
then Excite shall have the right to defer such filing for a period of not more
than 60 days after receipt of the request of Intuit; provided, however, that
Excite may not utilize this right more than once in any twelve (12) month
period. Excite will not be required to effect any registration, qualification or
compliance pursuant to this Section 1.3 in any particular jurisdiction in which
Excite would thereby be required to qualify to do business or to execute a
general consent to service of process.
(e) Expenses. All expenses incurred in connection with a
registration pursuant to this Section 1.3, including without limitation all
registration and qualification fees, printers' and accounting fees, fees and
disbursements of counsel for Excite, fees and disbursements of one counsel for
Intuit shall be borne by Excite. All underwriters' discounts and commissions
relating to the shares to be sold by Intuit shall be borne by Intuit.
(f) Withdrawn Request. Intuit may withdraw a request for
registration under this Section 1.3 at any time, provided that Intuit will
remain liable for all expenses incurred in conjunction therewith unless such
withdrawal is the result of a material adverse change in the business of Excite
that was unknown to Intuit at the time the request for registration was made and
the withdrawal of such request is made with reasonable promptness upon learning
of such material adverse change. A request for registration that is so withdrawn
shall not count toward the maximum number of registrations provided for in
Section 1.3(c).
1.4 Piggyback Registrations. Excite shall notify Intuit in writing
at least thirty (30) days prior to filing any registration statement under the
1933 Act for purposes of effecting a public offering of securities of Excite
(including, but not limited to, registration statements relating to secondary
offerings of securities of Excite, but excluding registration statements on Form
S-8 or S-4 or relating solely to any employee benefit plan or an acquisition of
any entity or business) and will afford Intuit, subject to the terms and
conditions set forth herein, an opportunity to include in such registration
statement all or any part of the Intuit Registrable Securities then held by
Intuit. Intuit shall, within twenty (20) days after receipt of the
above-described notice from Excite, so notify Excite in writing, and in such
notice shall inform Excite of the number of Intuit Registrable Securities Intuit
wishes to include in such registration statement. If Intuit decides not to
include all of the Intuit Registrable Securities in any registration statement
thereafter filed by Excite, Intuit shall nevertheless continue to have the right
to include any Intuit Registrable Securities not included in such registration
statement in any subsequent registration statement or registration statements as
may be filed by Excite with respect to offerings of its securities, all upon the
terms and conditions set forth herein.
(a) Underwriting. If a registration statement with respect to
which Excite gives notice under this Section 1.4 pertains to an underwritten
offering, then Excite shall so advise Intuit. In such event, the right of Intuit
to have the Intuit Registrable Securities included in a registration pursuant to
this Section 1.4 shall be conditioned upon Intuit's participation in such
underwriting and the inclusion of the Intuit Registrable Securities in the
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underwriting to the extent provided herein. Intuit shall enter into an
underwriting agreement in customary form with the managing underwriter or
underwriters selected for such underwriting. Notwithstanding any other provision
of this Agreement, if the managing underwriter or underwriters determine(s) in
good faith that marketing factors require a limitation of the number of shares
to be underwritten, then the managing underwriter(s) may exclude shares
(including Intuit Registrable Securities) from the registration and the
underwriting, and the number of shares that may be included in the registration
and the underwriting shall be allocated, first, to Excite, second, to America
Online, Inc., a Delaware Corporation ("AOL"), Intuit and the participating
holders of the Company's Registrable Securities (as defined in the Restated and
Amended Investors' Rights Agreement, by and among Excite, AOL and certain other
investors of Excite, dated as of March 8, 1996, as amended through the date
hereof), on a pro-rata basis based on the number of registrable securities held
by each such holder, and third, to any other participating holders of Excite's
securities. If Intuit disapproves of the terms of any such underwriting, Intuit
may elect to withdraw therefrom by written notice to Excite and the managing
underwriter, delivered at least ten (10) business days prior to the effective
date of the registration statement. Any Intuit Registrable Securities excluded
or withdrawn from such underwriting shall be excluded and withdrawn from the
registration.
(b) Expenses. All expenses incurred in connection with a
registration pursuant to this Section 1.4 (excluding underwriters' and brokers'
discounts and commissions), including, without limitation all federal and "blue
sky" registration and qualification fees, printers' and accounting fees, fees
and disbursements of counsel for Excite and reasonable fees and disbursements of
counsel for Intuit, shall be borne by Excite.
1.5 Obligations of Excite. Whenever required to effect the
registration of any Intuit Registrable Securities under this Agreement, Excite
shall, as expeditiously as reasonably possible:
(a) Prepare promptly and file with the SEC a registration
statement with respect to such Intuit Registrable Securities, 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, cause such registration statement to become effective as
soon as practicable and with respect to registrations effected pursuant to
Section 1.3 keep such registrations effective for up to ninety (90) days or such
shorter period of time as is agreed to in writing by Intuit.
(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.
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(c) Furnish to Intuit 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 it may reasonably request in order to
facilitate the disposition of the Intuit 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 Intuit, 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) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter(s) of such offering.
(f) Notify Intuit promptly (i) of any request by the SEC or any
other federal or state governmental authority during the period of effectiveness
of a 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 a registration statement or the
initiation of any proceedings for that purpose, (iii) of the receipt by Excite
of any notification with respect to the suspension of the qualification or
exemption from qualification of any of the Intuit 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 a 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, in the case of a registration statement, 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 that in the case of the Prospectus, it
will not contain any untrue statement of a material fact 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, and (v) of Excite's reasonable determination that a post-effective
amendment to a registration statement would be appropriate; except that notice
of an event or determination referred to in (iv) or (v) above (x) need be made
only if Intuit has delivered the Notice of Resale referred to in Section 2(b)
and Excite is required to cause a Permitted Window to go into effect pursuant to
such Notice of Resale as provided therein or if a Permitted Window is then in
effect and shall specify in reasonable detail the nature or details of such
event or determination unless such description would result in the violation of
any confidentiality agreement, attorney-client privilege or would otherwise
result in the disclosure of confidential or other proprietary information of
Excite.
(g) Furnish, at the request of Intuit, but only with respect to
an underwritten offering, on the date that such Intuit Registrable Securities
are delivered to the underwriters for sale, (i) an opinion, dated as of such
date, of the counsel representing Excite for the purposes of such registration,
in form and substance as is customarily given to underwriters
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in an underwritten public offering and reasonably satisfactory to Intuit,
addressed to the underwriters, and (ii) a "comfort" letter dated as of such
date, from the independent certified public accountants of Excite, in form and
substance as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering and reasonably satisfactory to a
Intuit, addressed to the underwriters.
1.6 Furnish Information. It shall be a condition precedent to the
obligations of Excite to take any action pursuant to Sections 1.2, 1.3 or 1.4
that Intuit shall furnish to Excite such information regarding it, the Intuit
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to timely effect the registration of its
Intuit Registrable Securities.
1.7 Indemnification. In the event any Intuit Registrable Securities
are included in a registration statement under Sections 1.2, 1.3 or 1.4:
(a) By Excite. To the extent permitted by law, Excite will
indemnify and hold harmless Intuit, officers and directors of Intuit, any
underwriter (as defined in the 0000 Xxx) for Intuit and each person, if any, who
controls Intuit or such underwriter within the meaning of the 1933 Act or the
1934 Act, against any losses, claims, damages, or liabilities (joint or several)
to which they 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 a registration statement filed pursuant to
this Section 1 (including a registration statement with respect to
which Intuit exercises its rights under Section 1.4), 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 a
registration statement filed pursuant to this Section 1 (including a
registration statement with respect to which Intuit exercises its
rights under Section 1.4), 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;
and Excite will reimburse each of Intuit, such officer or director, underwriter
or controlling
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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 1.7(a) 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 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
Intuit, or by such, officer, director, underwriter or controlling person of
Intuit.
(b) By Intuit. To the extent permitted by law, Intuit 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, and any underwriter, against any
losses, claims, damages or liabilities (joint or several) to which Excite or any
such director, officer, controlling person or underwriter 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 Intuit expressly for use in connection with
such registration; and Intuit will reimburse any legal or other expenses
reasonably incurred by Excite or any such director, officer, controlling person,
underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the indemnity agreement
contained in this subsection 1.7(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 Intuit, which consent shall not be
unreasonably withheld; and provided further, that the total amounts payable in
indemnity by Intuit under this Section 1.7(b) in respect of any Violation shall
not exceed the net proceeds received by Intuit in the registered offering out of
which such Violation arises.
(c) Notice. Promptly after receipt by an indemnified party under
this Section 1.7 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 1.7, 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 relieve such
indemnifying
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party of any liability to the indemnified party under this Section 1.7, 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 1.7.
(d) Defect Eliminated in Final Prospectus. The foregoing
indemnity agreements of Excite and Intuit are subject to the condition that,
insofar as they relate to 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 in question 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) Intuit (and/or any officer, director, underwriter or controlling person who
may be indemnified under Section 1.7(a)), makes a claim for indemnification
pursuant to this Section 1.7 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 1.7 provides for indemnification in such case, or (ii) contribution
under the 1933 Act may be required on the part of Intuit (and/or any officer,
director, underwriter or controlling person who may be indemnified under Section
1.7(a)) in circumstances for which indemnification is provided under this
Section 1.7; then, and in each such case, Excite and Intuit (and/or such other
person) or 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 fraud
by Intuit in which there is no limitation, (i) shall Intuit be responsible for
more than the portion represented by the percentage that the public offering
price of its Intuit 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 and (ii) shall Intuit be
required to contribute any amount in excess of the public offering price of all
such securities offered and sold by Intuit 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 Intuit under this
Section 1.7 shall survive the completion of any offering of Intuit Registrable
Securities in a registration statement, and otherwise.
1.8 Rule 144 Reporting. With a view to making available the benefits
of certain rules and regulations of the Commission which may at any time permit
the sale of the Intuit Registrable Securities to the public without
registration, for so long as Intuit owns any Intuit Registrable Securities,
Excite agrees to:
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(a) Make and keep adequate, current public information
available, as required by and defined in Rule 144 under the 1933 Act, at all
times;
(b) File with the Commission in a timely manner all reports and
other documents required of Excite under the 1934 Act; and
(c) Furnish to Intuit forthwith upon request a written statement
by Excite as to its compliance with the reporting requirements of said Rule 144,
a copy of the most recent annual or quarterly report of Excite, and such other
reports and documents of Excite as Intuit may reasonably request in availing
itself of any rule or regulation of the Commission allowing a shareholder of the
Company to sell any such securities without registration.
1.9 Termination of Excite's Obligations. Excite shall have no
obligations to register Intuit Registrable Securities (i) if all Intuit
Registrable Securities have been registered and sold pursuant to registrations
effected pursuant to this Agreement, or (ii) at such time as all Intuit
Registrable Securities may be sold within a three month period under Rule 144,
as it may be amended from time to time, including but not limited to amendments
that reduce that period of time that securities must be held before such
securities may be sold pursuant to such rule.
2. ASSIGNMENT.
2.1 Assignment. Notwithstanding anything herein to the contrary, the
registration rights of Intuit under Section 1 hereof may be assigned only to (a)
a party who acquires from Intuit at least fifteen percent (15%) of the shares of
Common Stock that constituted the original number of Intuit Registrable
Securities (as such number may be adjusted to reflect subdivisions, combinations
and stock dividends of Excite's Common Stock) or (b) 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 a
"ASSIGNEE"); provided, however that (w) 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; (x) 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, and (y) upon such an assignment or
assignments, the rights held by Intuit under this Agreement may only be
exercised by persons or entities holding a majority of the Intuit Registrable
Securities, and (z) no such assignment or assignments shall increase the
obligations of Excite hereunder.
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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: President
Facsimile: 415/
with a copy to:
Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
Facsimile: 415/494-1417
(b) If to Intuit :
Intuit Inc.
0000 Xxxxxxxxxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Treasurer
Facsimile: 415/
with a copy to:
Intuit Inc.
0000 Xxxxxxxxxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: General Counsel
Facsimile:
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 Stock Purchase
Agreement constitute and contains 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 respecting the subject matter hereof.
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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 Intuit (and/or any of their permitted successors
or assigns).
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.
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.
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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. INTUIT INC.
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxxxxx Xxxxxx
------------------------------- ----------------------------------
Title: Executive VP, CAO/CFO Title: Exec. VP
---------------------------- -------------------------------
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
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