{"id":41360,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/warrant-agreement-excite-inc-and-netscape-communications-corp.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"warrant-agreement-excite-inc-and-netscape-communications-corp","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/warrant-agreement-excite-inc-and-netscape-communications-corp.html","title":{"rendered":"Warrant Agreement &#8211; Excite Inc. and Netscape Communications Corp."},"content":{"rendered":"<pre>                                WARRANT AGREEMENT\n\n\n\n         This Warrant Agreement (this \"Agreement\") is made and entered into as\nof April 29, 1998, by and between Excite, Inc., a California corporation (the\n\"Company\"), and Netscape Communications Corporation, a Delaware corporation (the\n\"Investor\").\n\n                                     RECITAL\n\n        WHEREAS, the Company desires to issue to the Investor, and the Investor\ndesires to receive from the Company, warrants to purchase shares of the\nCompany's Common Stock on the terms and conditions set forth in this Agreement\nin consideration of the execution and delivery by the Investor of a \"Netcenter\nServices Agreement\" between the parties (the \"Netcenter Services Agreement\");\n\n        NOW, THEREFORE, in consideration of the foregoing recital, the mutual\npromises hereinafter set forth, and other good and valuable consideration, the\nreceipt and sufficiency of which are hereby acknowledged, the parties hereto\nagree as follows:\n\n\n         1.   ISSUANCE OF WARRANTS.\n\n                  1.1 Issuance of Warrants. Subject to the terms and conditions\nof this Agreement, the Company agrees to issue to the Investor, at the closing\nprovided for in Section 2.1 below (the \"Closing\"), two (2) warrants (the\n\"Warrants\") to purchase shares of the Company's Common Stock having an aggregate\nexercise price of Fifty Million Dollars ($50,000,000), which amount shall be\nsubject to adjustment as provided in the Warrant attached hereto as Exhibit B)\n(the \"Shares\"). The Warrants shall be in the forms of Exhibit A and Exhibit B\nattached hereto. It is understood and agreed that the sole consideration for the\nCompany's issuance of the Warrants to the Investor shall be the Investor's\nentering into the Netcenter Services Agreement with the Company; the Investor\nwill not be required to pay any issuance price or other amount to the Company or\nto any other person or entity in connection with the Company's issuance of the\nWarrants to the Investor; provided, however, that in order to exercise the\nWarrants, in whole or in part, the Investor will be required to pay the exercise\nprices set forth therein (except as otherwise provided therein).\n\n\n         2.   CLOSING AND CLOSING DELIVERIES.\n\n                  2.1 Closing. The closing hereunder (the \"Closing\") shall take\nplace at 11:00 a.m. on April 30, 1998 at the offices of Morrison &amp; Foerster LLP,\nPalo Alto, California. The date of the Closing is hereinafter referred to as the\n\"Closing Date\".\n\n\n\n   2\n\n                  2.2 Closing Deliveries by the Company. Subject to the terms of\nthis Agreement, at the Closing, the Company shall deliver to the Investor the\nfollowing:\n\n                                    (i)     Warrants in the forms of Exhibit A \nand Exhibit B attached hereto, duly executed by an authorized officer of the \nCompany;\n\n                                    (ii) A certificate signed on the Company's\nbehalf by its Chief Executive Officer and its Chief Financial Officer,\ncertifying that: (1) each of the representations and warranties of the Company\ncontained in Section 3 are true and correct on and as of the Closing Date in all\nmaterial respects; and (2) the Company has performed and complied in all\nmaterial respects with all agreements, obligations and conditions contained in\nthis Agreement and the Netcenter Services Agreement that are required to be\nperformed or complied with by it on or before the Closing Date and has obtained\nall material approvals, consents and qualifications necessary to enter into this\nAgreement and the Netcenter Services Agreement and to consummate the issuance of\nthe Warrants (and the issuance of the Shares upon exercise thereof) to the\nInvestor and the other transactions contemplated by this Agreement and the\nNetcenter Services Agreement.\n\n                                    (iii) A copy of the Articles of\nIncorporation of the Company, certified as of a recent date by the Secretary of \nState of California as a complete and correct copy thereof as of such date;\n\n                                    (iv) A certificate of the Secretary of the\nCompany, which has attached thereto: (1) the Bylaws of the Company (as amended\nthrough the date thereof), certified by the Secretary of the Company as a true\nand correct copy thereof as of the date of the certificate, and (2) a copy,\ncertified by the Secretary of the Company as a complete and correct copy\nthereof, of the resolutions of the Board of Directors of the Company providing\nfor the approval of this Agreement and the Netcenter Services Agreement, the\nissuance of the Warrants (and the issuance of the Shares upon exercise thereof)\nto the Investor and the consummation of the transactions contemplated by this\nAgreement and the Netcenter Services Agreement; and\n\n                                    (v)     An opinion addressed to the \nInvestor, dated as of the date of the Closing, from Fenwick &amp; West LLP, counsel\nto the Company, in the form of Exhibit C hereto.\n\n                  2.3 Closing Deliveries by the Investor. At the Closing, the\nInvestor shall deliver to the Company the following:\n\n                                    (i)     A certificate signed on the \nInvestor's behalf by an authorized officer certifying that (1) each of the\nrepresentations and warranties of the Investor contained in Section 4 are true\nand correct on and as of the Closing Date in all material respects; and (2) the\nInvestor has performed and complied in all material respects with all\nagreements, obligations and conditions contained in this Agreement and the\nNetcenter Services Agreement that are required to be performed or complied with\nby it on or before the Closing Date and has obtained all material approvals,\nconsents and qualifications necessary to enter into this \n\n\n                                       2\n\n   3\n\nAgreement and the Netcenter Services Agreement and to consummate the\ntransactions contemplated by this Agreement and the Netcenter Services\nAgreement;\n\n                                    (ii) A copy of the Certificate of\nIncorporation of the Investor, certified as of a recent date by the Secretary of\nState of Delaware as a complete and correct copy thereof as of such date; and\n\n                                    (iii) A certificate of the Secretary of the\nInvestor, which has attached thereto the Bylaws of the Investor (as amended\nthrough the date thereof), certified by the Secretary of the Investor as a true\nand correct copy thereof as of the date of the certificate.\n\n         REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby\nrepresents and warrants to the Investor that the statements in this Section 3\nare true and correct, except as set forth in the Disclosure Letter from the\nCompany dated April 29, 1998 (the \"Disclosure Letter\").\n\n                  3.1 Organization, Good Standing and Qualification. The Company\nis a corporation duly organized, validly existing and in good standing under the\nlaws of the State of California and has all corporate power and authority\nrequired to (a) carry on its business as presently conducted, and (b) enter into\nthis Agreement and the Netcenter Services Agreement, and to consummate the\ntransactions contemplated hereby and thereby, including the issuance of the\nWarrants (and the issuance of the Shares upon exercise thereof) to the Investor.\nThe Company is qualified to do business and is in good standing in each\njurisdiction in which the failure to so qualify would have a Material Adverse\nEffect on the Company. As used in this Agreement, \"Material Adverse Effect\"\nmeans a material adverse effect on, or a material adverse change in, or a group\nof such effects on or changes in, the business, operations, financial condition,\nresults of operations, prospects, assets or liabilities of the Company or the\nInvestor, as applicable; provided, however, that any adverse change or effect\nthat is primarily caused by (i) conditions affecting the United States economy\ngenerally, (ii) conditions generally affecting the Internet industry or (iii)\nthe announcement or pendency of this Agreement or the Netcenter Services\nAgreement, shall not be taken into account in determining whether there has been\nor would be a \"Material Adverse Effect;\" provided further, that any adverse\nchange in the stock price of the Company or the Investor, as applicable, as\nquoted on the Nasdaq National Market shall not be taken into account in\ndetermining whether there has been or would be a \"Material Adverse Effect.\"\n\n                  3.2      Capitalization.  As of the date of this Agreement the\ncapitalization of the Company is as follows:\n\n                           (a) Common Stock.  A total of 50,000,000 authorized\nshares of Common Stock, of which 22,317,229 shares were issued and outstanding\nas of March 31, 1998. All of such outstanding shares are validly issued, fully\npaid and non-assessable.\n\n                           (b) Preferred Stock.  A total of 4,000,000 authorized\nshares of Preferred Stock (the \"Preferred Stock\"), none of which is issued or\noutstanding.\n\n                                       3\n\n   4\n\n                           (c) Options, Warrants, Reserved Shares.  Except for \n(i) 4,835,000 shares of Common Stock issuable upon the exercise of options\noutstanding as of December 31, 1997, (ii) an aggregate of 1,303,000 shares of\nCommon Stock reserved for issuance as of such date for future grants or sale\nunder the Company's 1995 Equity Incentive Plan, 1996 Equity Incentive Plan, 1996\nDirectors Plan and 1996 Employee Stock Purchase Plan (the \"Plans\"), (iii) 95,122\nshares of Common Stock issuable upon the exercise of outstanding warrants to\npurchase Common Stock as of such date, (iv) 325,000 shares of Common Stock\nissuable upon conversion of Series E-3 Convertible of Preferred Stock issuable\nupon the exercise of a warrant, and (v) 166,667 shares of Common Stock issuable\nupon the conversion of a Convertible Promissory Note with Itochu Corporation,\nthere are not outstanding any options, warrants, rights (including conversion or\npreemptive rights) or agreements for the purchase or acquisition from the\nCompany of any shares of its capital stock or any securities convertible into or\nultimately exchangeable or exercisable for any shares of the Company's capital\nstock. Except for any stock repurchase rights of the Company under the Plans, no\nshares of the Company's outstanding capital stock, or stock issuable upon\nexercise, conversion or exchange of any outstanding options, warrants or rights,\nor other stock issuable by the Company, are subject to any rights of first\nrefusal or other rights to purchase such stock (whether in favor of the Company\nor any other person), pursuant to any agreement, commitment or other obligation\nof the Company.\n\n                  3.3 Due Authorization. All corporate action on the part of the\nCompany, its officers, directors and shareholders necessary for the\nauthorization, execution, delivery of, and the performance of all obligations of\nthe Company under this Agreement and the Netcenter Services Agreement, the\nauthorization and issuance of the Warrants and the authorization, reservation\nfor issuance, issuance and delivery of all of the Shares issuable upon exercise\nof the Warrants has been taken, and this Agreement, the Netcenter Services\nAgreement and the Warrants constitute the valid and legally binding obligations\nof the Company, enforceable against the Company in accordance with their\nrespective terms, except as may be limited by (i) applicable bankruptcy,\ninsolvency, reorganization or others laws of general application relating to or\naffecting enforcement of creditors' rights generally, and (ii) the effect of\nrules of law governing the availability of equitable remedies.\n\n                  3.4      Valid Issuance of Stock.\n\n                           (a) The Shares, when issued and delivered upon\nexercise of the Warrants in accordance with the terms thereof, shall be duly and\nvalidly issued, fully paid and nonassessable and not subject to any preemptive\nor similar rights.\n\n                           (b) Based in part on the representations made by the\nInvestor in Section 4 hereof, the Warrants are being issued, and upon exercise\nthereof the Shares will be issued, in compliance with the registration\nrequirements of the Securities Act of 1933, as amended (the \"Securities Act\"),\nor in compliance with applicable exemptions therefrom, and the registration and\nqualification requirements of all applicable securities laws of the states of\nthe United States.\n\n                  3.5 Governmental Consents. No consent, approval, order or\nauthorization of, or registration, qualification, designation, declaration or\nfiling with, any federal, state or local\n\n\n                                       4\n\n   5\n\ngovernmental authority on the part of the Company is required in connection with\nthe consummation of the transactions contemplated hereby and by the Netcenter\nServices Agreement, including the issuance of the Warrants and the issuance of\nthe Shares upon exercise thereof, except for the filing of such qualifications\nor filings under the Securities Act and all applicable state securities laws as\nmay be required in connection with the transactions contemplated by this\nAgreement. All such qualifications and filings have been made, in the case of\nqualifications, on or prior to the date hereof, and have been made or will be\nmade, in the case of filings, within the time prescribed by law.\n\n                  3.6 Non-Contravention. The execution, delivery and performance\nof this Agreement and the Netcenter Services Agreement by the Company, and the\nconsummation by the Company of the transactions contemplated hereby and thereby,\nincluding the issuance of the Warrants and the issuance of the Shares upon\nexercise thereof, do not and will not (i) contravene or conflict with the\nArticles of Incorporation or Bylaws of the Company; (ii) constitute a material\nviolation of any provision of any federal, state, local or foreign law, rule or\nregulation binding upon or applicable to the Company; or (iii) constitute a\ndefault or require any consent under, give rise to any right of termination,\ncancellation or acceleration of, or to a loss of any benefit to which the\nCompany is entitled under, or result in the creation or imposition of any lien,\nclaim or encumbrance on any assets of the Company under, any contract to which\nthe Company is a party or any permit, license or similar right relating to the\nCompany or by which the Company may be bound or affected in such a manner as\nwould have a Material Adverse Effect on the Company.\n\n                  3.7 Litigation. There is no action, suit, proceeding, claim,\narbitration or investigation (\"Action\") pending: (a) that seeks to prevent,\nenjoin, alter or delay the transactions contemplated by this Agreement and the\nNetcenter Services Agreement; or (b) that has not previously been disclosed in\none of the SEC Documents (as defined below) and is currently required to be\ndisclosed under the rules of the SEC in any registration statement, report or\nproxy statement filed with the SEC. The Company is not a party to or subject to\nthe provisions of any order, writ, injunction, judgment or decree of any court\nor government agency or instrumentality having a Material Adverse Effect on the\nCompany. No Action by the Company is currently pending nor does the Company\nintend to initiate any Action that is reasonably likely to have a Material\nAdverse Effect on the Company.\n\n                  3.8 Registration Rights. Except as set forth in Section 5\nbelow, the Company is not currently subject to any grant or agreement to grant\nto any person or entity any rights (including piggyback registration rights) to\nhave any securities of the Company registered with the United States Securities\nand Exchange Commission (the \"SEC\" or \"Commission\") or registered or qualified\nwith any other governmental authority.\n\n                  3.9      SEC Documents.\n\n                           (a) The Company has furnished to the Investor prior \nto the date hereof copies of its Annual Report on Form 10-K for the fiscal year\nended December 31, 1997 (\"Form 10-K\"), and all other registration statements,\nreports and proxy statements filed by the Company with the Commission on or\nafter December 31, 1997 (the Form 10-K and such registration \n\n\n                                       5\n\n   6\n\nstatements, reports and proxy statements are collectively referred to herein as\nthe \"SEC Documents\"). Each of the SEC Documents, as of the respective date\nthereof, did not, as of the date thereof, contain any untrue statement of a\nmaterial fact or omit to state a material fact necessary in order to make the\nstatements made therein, in light of the circumstances under which they were\nmade, not misleading, except as may have been corrected in a subsequent SEC\nDocument. The Company is not a party to any material contract, agreement or\nother arrangement that was required to have been filed as an exhibit to the SEC\nDocuments that is not so filed.\n\n                           (b) The Form 10-K contains the Company's audited\nfinancial statements (the \"Audited Financial Statements\") for the fiscal year\nended December 31, 1997 (the \"Balance Sheet Date\"). Since the Balance Sheet\nDate, the Company has duly filed with the Commission all registration\nstatements, reports and proxy statements required to be filed by it under the\nSecurities Exchange Act of 1934, as amended (the \"Exchange Act\"), and the\nSecurities Act. The audited and unaudited consolidated financial statements of\nthe Company included in the SEC Documents filed prior to the date hereof fairly\npresent, in conformity with generally accepted accounting principles (\" GAAP \")\n(except as otherwise permitted by Form 10-Q) applied on a consistent basis\n(except as may be indicated in the notes thereto), the consolidated financial\nposition of the Company and its consolidated subsidiaries as at the date thereof\nand the consolidated results of their operations and cash flows for the periods\nthen ended (subject to normal year and audit adjustments in the case of\nunaudited interim financial statements).\n\n                           (c) Except as and to the extent reflected or reserved\nagainst in the Company's Audited Financial Statements (including the notes\nthereto), the Company has no material liabilities (whether accrued or unaccrued,\nliquidated or unliquidated, secured or unsecured, joint or several, due or to\nbecome due, vested or unvested, executory, determined or determinable) other\nthan: (i) liabilities incurred in the ordinary course of business since the\nBalance Sheet Date that are consistent with the Company's past practices, (ii)\nliabilities with respect to agreements to which the Investor is a party, and\n(iii) other liabilities that either individually or in the aggregate, would not\nresult in a Material Adverse Effect on the Company.\n\n                           (d) The Company meets the requirements for the use of\nForm S-3 for registration of the sale by the Investor of the Registrable\nSecurities (as defined below), and the Company covenants that it shall file all\nreports required to be filed by the Company with the SEC in a timely manner so\nas to maintain such eligibility for the use of Form S-3.\n\n                  3.10 Absence of Certain Changes Since Balance Sheet Date.\nSince the Balance Sheet Date, the business and operations of the Company have\nbeen conducted in the ordinary course consistent with past practice, and there\nhas not been:\n\n                           (a) any declaration, setting aside or payment of any \ndividend or other distribution of the assets of the Company with respect to any\nshares of capital stock of the Company, or any repurchase, redemption or other\nacquisition by the Company or any subsidiary of the Company of any outstanding\nshares of the Company's capital stock;\n\n                                       6\n\n   7\n\n                           (b) any damage, destruction or loss, whether or not\ncovered by insurance, except for such occurrences that have not resulted, and\nare not expected to result, in a Material Adverse Effect on the Company;\n\n                           (c) any waiver by the Company of a valuable right or\nof a material debt owed to it, except for such waivers that have not resulted,\nand are not expected to result, in a Material Adverse Effect on the Company;\n\n                           (d) any material change or amendment to, or any\nwaiver of any material rights under, a material contract or arrangement by which\nthe Company or any of its assets or properties is bound or subject, except for\nchanges, amendments, or waivers that are expressly provided for or disclosed in\nthis Agreement or that have not resulted, and are not expected to result, in a\nMaterial Adverse Effect on the Company;\n\n                           (e) any change by the Company in its accounting\nprinciples, methods or practices or in the manner it keeps its accounting books\nand records, except any such change required by a change in GAAP; and\n\n                           (f) any other event or condition of any character,\nexcept for such events and conditions that have not resulted, and cannot\nreasonably be expected to result, in a Material Adverse Effect on the Company.\n\n                  3.11 Full Disclosure. The information contained in this\nAgreement, the Disclosure Letter, and the SEC Documents, together with the other\nwritten disclosures made by the Company to the Investor in the course of their\ndiscussions leading to this Agreement, taken together, with respect to the\nbusiness, operations, assets, results of operations and financial condition of\nthe Company is true and complete in all material respects and does not omit to\nstate any material fact necessary in order to make the statements therein, in\nlight of the circumstances under which they were made, not misleading.\n\n\n         4.  REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF THE INVESTOR.\n\n         The Investor hereby represents and warrants to the Company as follows,\nprovided, however, that nothing set forth in this Article 4 shall limit or\nmodify the representations and warranties made by the Company in Article 3.\n\n                  4.1 Authorization. This Agreement has been duly authorized by\nall necessary corporate action on the part of the Investor. The Agreement\nconstitutes the Investor's valid and legally binding obligation, enforceable\nagainst it in accordance with its terms, except as may be limited by (a)\napplicable bankruptcy, insolvency, reorganization or other laws of general\napplication relating to or affecting the enforcement of creditors' rights\ngenerally and (b) the effect of rules of law governing the availability of\nequitable remedies. The Investor has full corporate power and authority to enter\ninto this Agreement.\n\n                                       7\n\n   8\n\n                  4.2 Acquisition for Own Account. The Warrants are being\nacquired, and the Shares will be acquired, for the Investor's own account, not\nas a nominee or agent, and not with a view to the public resale or distribution\nthereof without registration under the Securities Act or an exemption therefrom.\n\n                  4.3      Accredited Investor Status.  The Investor is an \n\"accredited investor\" within the meaning of Regulation D promulgated under the\nSecurities Act.\n\n                  4.4 Restricted Securities. The Investor understands that the\nWarrants to be issued to the Investor hereunder and the Shares issuable upon\nexercise thereof are \"restricted securities\" under the Securities Act inasmuch\nas they are being acquired or will be acquired from the Company in a transaction\nnot involving a public offering and that under the Securities Act and applicable\nregulations thereunder such securities may be resold without registration under\nthe Securities Act only in certain limited circumstances. The Investor is\nfamiliar with Rule 144 of the SEC, as presently in effect, and understands the\nresale limitations imposed thereby and by the Securities Act.\n\n                  4.5 Governmental Consents. No consent, approval, order or\nauthorization of, or registration, qualification, designation, declaration or\nfiling with, any federal, state or local governmental authority on the part of\nthe Investor is required in connection with the consummation of the transactions\ncontemplated hereby and by the Netcenter Services Agreement, including the\nacquisition of the Warrants and the purchase of the Shares upon exercise\nthereof. All such qualifications have been made, in the case of qualifications,\non or prior to the date hereof, and have been or will be made, in the case of\nfilings, within the time prescribed by law.\n\n                  4.6 Non-Contravention. The execution, delivery and performance\nof this Agreement and the Netcenter Services Agreement by the Investor, and the\nconsummation by the Investor of the transactions contemplated hereby and\nthereby, including the acquisition of the Warrants and the purchase of the\nShares upon exercise thereof, do not and will not (i) contravene or conflict\nwith the Certificate of Incorporation or Bylaws of the Investor; (ii) constitute\na material violation of any provision of any federal, state, local or foreign\nlaw, rule or regulation binding upon or applicable to the Investor; or (iii)\nconstitute a default or require any consent under, give rise to any right of\ntermination, cancellation or acceleration of, or to a loss of any benefit to\nwhich the Investor is entitled under, or result in the creation or imposition of\nany lien, claim or encumbrance on any assets of the Investor under, any contract\nto which the Investor is a party or any permit, license or similar right\nrelating to the Investor or by which the Investor may be bound or affected in\nsuch a manner as would have a Material Adverse Effect on the Investor.\n\n                  4.7 Further Limitations on Disposition. Without in any way\nlimiting the representations set forth above, the Investor agrees not to make\nany disposition of all or any portion of the Warrants without the prior written\nconsent of the Company, which consent may be withheld in the Company's sole\ndiscretion. The Investor further agrees not to make any disposition of all or\nany portion of the Shares unless and until:\n\n                                       8\n\n   9\n\n                           (a) there is then in effect a registration statement\nunder the Securities Act covering such proposed disposition and such disposition\nis made in accordance with such registration statement; or\n\n                           (b) the Investor has notified the Company of the \nproposed disposition and has furnished the Company with a statement of the\ncircumstances surrounding the proposed disposition, and the Investor has\nfurnished the Company, at the expense of the Investor or its transferee, with an\nopinion of counsel, reasonably satisfactory to the Company, that such\ndisposition will not require registration of such securities under the\nSecurities Act.\n\nNotwithstanding the provisions of paragraphs (a) and (b) of this Section 4.7, no\nsuch registration statement or opinion of counsel will be required for any\ntransfer of any Shares in compliance with SEC Rule 144, Rule 144A or Rule\n145(d), or if such transfer otherwise is exempt from the registration\nrequirements of the Securities Act in the opinion of the Company's counsel.\nFurthermore, notwithstanding the other provisions of this Section 4.7, the\nInvestor shall be permitted to transfer all or any portion of the Warrants (i)\nto an underwriter of a public offering of Common Stock if and only if the\nWarrants (or any such portion) shall be immediately exercised by such\nunderwriter and the Shares issued upon such exercise are immediately sold to the\npublic, (ii) to any affiliate (as that term is defined in the Securities Act) of\nthe Investor, or (iii) in connection with any merger or consolidation to which\nthe Investor is a party, any sale of all or substantially all of the Investor's\nassets or any other acquisition of the Investor.\n\n                  4.8      Legends.  Certificates evidencing the Warrants and \nthe Shares will bear the following legend:\n\n                  THE SECURITIES REPRESENTED HEREBY HAVE \n                  NOT BEEN REGISTERED UNDER THE SECURITIES \n                  ACT OF 1933, AS AMENDED (THE \"ACT\"), OR\n                  UNDER THE SECURITIES LAWS OF CERTAIN \n                  STATES. THESE SECURITIES ARE SUBJECT TO \n                  RESTRICTIONS ON TRANSFERABILITY AND RESALE \n                  AND MAY NOT BE TRANSFERRED OR RESOLD \n                  EXCEPT AS PERMITTED UNDER THE ACT AND THE \n                  APPLICABLE STATE SECURITIES LAWS, PURSUANT \n                  TO REGISTRATION OR EXEMPTION THEREFROM.\n\nThe legend set forth above will be removed by the Company from any certificate\nevidencing Shares upon delivery to the Company of an opinion by counsel,\nreasonably satisfactory to the Company, that a registration statement under the\nSecurities Act is at that time in effect with respect to the legended security\nor that such security can be freely transferred in a public sale without such a\nregistration statement being in effect and that such transfer will not\njeopardize the exemption or exemptions from registration pursuant to which the\nCompany issued the Shares.\n\n                                       9\n\n   10\n\n\n         5.   NO TREATMENT AS AFFILIATE;  REGISTRATION\n\n                  5.1 No Treatment as Affiliate. On the basis of the facts now\nin its possession, upon and following the Closing of the transactions\ncontemplated by this Agreement, the Company shall not treat the Investor as an\n\"affiliate\" of the Company (as such term is defined in the Securities Act) for\npurposes of any federal or state securities laws.\n\n                  5.2      Registration.\n\n                           (a) Certain Definitions.  As used in this Section \n5.2, the following terms shall have the following respective meanings:\n\n                            \"Registrable Securities\" shall mean (i) all Shares\nissued or issuable upon exercise of the Warrants, and (ii) any shares of Common\nStock of the Company issued as (or issuable upon conversion or exercise of any\nwarrant, right or other security which is issued as) a stock dividend or other\ndistribution with respect to, or in exchange for or in replacement of, any\nShares; provided, however, that shares of Common Stock or other securities shall\nonly be treated as Registrable Securities if and so long as they have not been\nsold to or through a broker or dealer or underwriter in a public distribution or\na public securities transaction.\n\n                            The terms \"register,\" \"registered\" and \n\"registration\" refer to a registration effected by preparing and filing a\nregistration statement in compliance with the Securities Act, and the\ndeclaration or ordering of the effectiveness of such registration statement.\n\n                            \"Registration Statement\" shall mean the registration\nstatement of the Company under the Securities Act contemplated by Section 5.2(b)\nbelow.\n\n                           (b) Registration.\n\n                                    (i)     Mandatory Registration.  The Company\nshall prepare and file with the SEC as soon as practicable after the Closing,\nbut no later than ten (10) days after the Closing Date, a Registration Statement\non Form S-3 (or, if Form S-3 is not then available, on such form of Registration\nStatement as is then available to effect a registration of all of the\nRegistrable Securities) covering the resale of the Registrable Securities. The\nCompany shall use its best efforts to cause the Registration Statement to become\neffective as soon as practicable after filing, but in no event later than the\nfirst to occur of (i) the third (3rd) day after the SEC notifies the Company\nthat the Registration Statement will not be reviewed by the SEC or that the SEC\ndoes not have any further comments on the Registration Statement and (ii) ninety\n(90) days after the Closing Date, and to keep such Registration Statement\ncurrent and effective pursuant to SEC Rule 415 at all times until such date as\nis the earlier of (A) the date on which all of the Registrable Securities have\nbeen sold, and (B) the date on which all of the Registrable Securities (in the\nreasonable opinion of counsel to the Investor) may be immediately sold to the\npublic without registration or restriction pursuant to Rule 144 under the\nSecurities Act within a single three-month period (the \"Registration Period\").\nThe Registration Statement (and each amendment or supplement thereto, and each\nrequest for acceleration of effectiveness thereof) \n\n\n                                       10\n\n   11\n\nshall be provided to, and be subject to the reasonable approval of, the Investor\nand its counsel prior to the filing or other submission thereof to the SEC.\n\n                                    (ii)    Permitted Delay Periods; Suspension\nof Sales. If at any time prior to the expiration of the Registration Period, the\nChief Executive Officer of the Company has determined in good faith that (A)\ncompliance by the Company with its disclosure obligations in connection with the\nRegistration Statement would be seriously detrimental to the Company and its\nshareholders, or (B) the Company then is unable to comply with its disclosure\nobligations or SEC requirements in connection with the Registration Statement,\nthen in either such case the Company shall not be required to maintain the\neffectiveness thereof or amend or supplement the Registration Statement for a\nperiod (a \"Permitted Delay Period\") expiring upon the earlier to occur of (I)\nthe date on which such material information is disclosed to the public or ceases\nto be material or the Company is able to so comply with its disclosure\nobligations and SEC requirements, or (II) sixty (60) days after the Chief\nExecutive Officer of the Company makes such good faith determination. The\nCompany will give prompt written notice to the Investor of each Permitted Delay\nPeriod. Such notice shall state to the extent, if any, as is practicable, an\nestimate of the duration of such Permitted Delay Period. The Investor, by its\nacceptance of any Registrable Securities, agrees that, upon receipt of such\nnotice it will forthwith discontinue disposition of the Registrable Securities\npursuant to the Registration Statement, and will not deliver any prospectus\nforming a part thereof in connection with any sale of Registrable Securities,\nuntil the expiration of such Permitted Delay Period. There shall not be more\nthan one (1) Permitted Delay Period in any twelve (12) month period.\n\n                           (c) Obligations of the Company. In connection with\nthe registration of the Registrable Securities, the Company shall have the \nfollowing obligations:\n\n                                    (i)     No Registration Statement (including\nany amendments or supplements thereto and prospectuses contained therein and all\ndocuments incorporated by reference therein) shall contain any untrue statement\nof a material fact or omit to state a material fact required to be stated\ntherein, or necessary to make the statements therein, in the light of the\ncircumstances under which they were made, not misleading.\n\n                                    (ii) The Company shall prepare and file with\nthe SEC such amendments (including post-effective amendments) and supplements to\nthe Registration Statement and the prospectus used in connection with the\nRegistration Statement as may be necessary to keep the Registration Statement\neffective at all times during the Registration Period and, during such period,\ncomply with the provisions of the Securities Act with respect to the disposition\nof all Registrable Securities of the Company covered by the Registration\nStatement until such time as all of such Registrable Securities have been\ndisposed of in accordance with the intended methods of disposition by the seller\nor sellers thereof as set forth in the Registration Statement.\n\n                                    (iii) The Company shall furnish to the\nInvestor and its legal counsel (A) promptly after the same is prepared and\npublicly distributed, filed with the SEC or received by the Company, one copy of\nthe Registration Statement and any amendment thereto,\n\n\n                                       11\n\n   12\n\neach preliminary prospectus and prospectus and each amendment or supplement\nthereto, and each letter written by or on behalf of the Company to the SEC or\nthe staff of the SEC (including, without limitation, any request to accelerate\nthe effectiveness of the Registration Statement or amendment thereto), and each\nitem of correspondence from the SEC or the staff of the SEC, in each case\nrelating to the Registration Statement (other than any portion, if any, thereof\nwhich contains information for which the Company has sought confidential\ntreatment), (B) on the date of effectiveness of the Registration Statement or\nany amendment thereto, a notice stating that the Registration Statement or\namendment has been declared effective, and (C) such number of copies of a\nprospectus, including a preliminary prospectus, and all amendments and\nsupplements thereto and such other documents as the Investor may reasonably\nrequest in order to facilitate the disposition of the Registrable Securities.\n\n                                    (iv) The Company shall (A) register and\nqualify the Registrable Securities covered by the Registration Statement under\nsuch securities or \"blue sky\" laws of such jurisdictions as the Investor\nreasonably requests, (B) prepare and file in those jurisdictions such amendments\n(including post-effective amendments) and supplements to such registrations and\nqualifications as may be necessary to maintain the effectiveness thereof during\nthe Registration Period, (C) take such other actions as may be necessary to\nmaintain such registrations and qualifications in effect at all times during the\nRegistration Period, and (D) take all other actions reasonably necessary or\nadvisable to qualify the Registrable Securities for sale in such jurisdictions;\nprovided, however, that the Company shall not be required in connection\ntherewith or as a condition thereto to (I) qualify to do business in any\njurisdiction where it would not otherwise be required to qualify but for this\nSection 5.2(c)(iv), (II) subject itself to general taxation in any such\njurisdiction, (III) file a general consent to service of process in any such\njurisdiction, or (IV) make any change in its charter or bylaws, which in each\ncase the Board of Directors of the Company determines to be contrary to the best\ninterests of the Company and its shareholders.\n\n                                    (v)     As promptly as practicable after \nbecoming aware of such event, the Company shall notify the Investor of the\nhappening of any event, as a result of which the prospectus included in the\nRegistration Statement, as then in effect, includes an untrue statement of a\nmaterial fact or omits to state a material fact required to be stated therein or\nnecessary to make the statements therein not misleading, and the Company shall\npromptly prepare a supplement or amendment to the Registration Statement to\ncorrect such untrue statement or omission and deliver such number of copies of\nsuch supplement or amendment to the Investor as reasonably requested by the\nInvestor.\n\n                                    (vi) Except as provided in Section\n5.2(b)(ii), the Company shall use its best efforts to prevent the issuance of\nany stop order or other suspension of effectiveness of the Registration\nStatement and, if such an order is issued, to obtain the withdrawal of such\norder at the earliest practicable moment (including in each case by amending or\nsupplementing the Registration Statement). The Company shall promptly notify the\nInvestor of the issuance of any such order and the resolution thereof (and if\nthe Registration Statement is supplemented or amended, deliver such number of\ncopies of such supplement or amendment to the Investor as the Investor may\nreasonably request).\n\n                                       12\n\n   13\n\n                                    (vii) The Company shall give a single firm\nof counsel designated by the Investor the opportunity to review the Registration\nStatement and all amendments and supplements thereto a reasonable period of time\nprior to their filing with the SEC, and not file any document in a form to which\nsuch counsel reasonably objects in a timely fashion.\n\n                                    (viii) At the request of the Investor, the\nCompany shall furnish, on the date of effectiveness of the Registration\nStatement, an opinion, dated as of such date, from counsel representing the\nCompany addressed to the Investor and (1) in the case of an underwritten public\noffering, in form, scope and substance as is customarily given in an\nunderwritten public offering, and (2) in all other cases, as mutually agreed by\nthe Company and the Investor.\n\n                                    (ix) The Company shall hold in confidence\nand not make any disclosure of information concerning the Investor provided to\nthe Company unless (A) disclosure of such information is necessary to comply\nwith federal or state securities laws, (B) the disclosure of such information is\nnecessary to avoid or correct a misstatement or omission in the Registration\nStatement, (C) the release of such information is ordered pursuant to a subpoena\nor other order from a court or governmental body of competent jurisdiction, (D)\nsuch information has been made generally available to the public other than by\ndisclosure in violation of this or any other agreement, or (E) the Investor\nconsents to the form and content of any such disclosure. The Company agrees that\nit shall, upon learning that disclosure of such information concerning the\nInvestor is sought in or by a court or governmental body of competent\njurisdiction or through other means, give prompt notice to the Investor prior to\nmaking such disclosure, and allow the Investor, at its expense, to undertake\nappropriate action to prevent disclosure of, or to obtain a protective order\nfor, such information.\n\n                                    (x)     The Company shall promptly either \n(A) cause all of the Registrable Securities covered by the Registration\nStatement to be listed on the NYSE, the AMEX or other national securities\nexchange on which securities of the same class or series issued by the Company\nare then listed, if any, if the listing of such Registrable Securities is then\npermitted under the rules of such exchange, or (B) secure the designation and\nquotation of all of the Registrable Securities covered by the Registration\nStatement on the Nasdaq National Market and, without limiting the generality of\nthe foregoing, to arrange for or maintain at least two market makers to register\nwith the National Association of Securities Dealers (\"NASD\") as such with\nrespect to such Registrable Securities.\n\n                                    (xi) The Company shall maintain a transfer\nagent and registrar, which may be a single entity, for the Registrable\nSecurities not later than the effective date of the first Registration\nStatement.\n\n                                    (xii) The Company shall cooperate with the\nInvestor to facilitate the timely preparation and delivery of certificates (not\nbearing any restrictive legends) representing Registrable Securities to be\noffered pursuant to the Registration Statement and enable such certificates to\nbe in such denominations or amounts, as the case may be, as the Investor may\nreasonably request and registered in such names as the Investor may request,\nand, \n                                       13\n\n   14\n\nwithin five (5) business days after the Registration Statement is ordered\neffective by the SEC, the Company shall deliver, and shall cause legal counsel\nselected by the Company to deliver, to the transfer agent for the Registrable\nSecurities (with copies to the Investor) an opinion of such counsel as required\nby the transfer agent prior to the transfer of the Registrable Securities.\n\n                                    (xiii) At the request of the Investor, the\nCompany shall prepare and file with the SEC such amendments (including\npost-effective amendments) and supplements to the Registration Statement and the\nprospectus used in connection with the Registration Statement as may be\nnecessary in order to change the plan of distribution set forth in the\nRegistration Statement.\n\n                                    (xiv) The Company shall comply with all\napplicable laws related to the Registration Statement and the offering and sale\nof securities thereunder and all applicable rules and regulations of\ngovernmental authorities in connection therewith (including without limitation\nthe Securities Act and the Securities Exchange Act of 1934, as amended, and the\nrules and regulations promulgated by the SEC).\n\n                                    (xv) The Company shall take all such other\nactions as the Investor reasonably requests in order to expedite or facilitate\nthe disposition of such Registrable Securities.\n\n                                    (xvi) From and after the date of this\nAgreement, the Company shall not, and shall not agree to, allow the holders of\nany securities of the Company to include any of their securities in the\nRegistration Statement under Section 5.2(b)(i) hereof or any amendment or\nsupplement thereto under Section 5.2(c)(ii) hereof without the prior written\nconsent of the Investor. The foregoing shall not apply to the extent, and only\nto the extent, that such holders are contractually entitled, as of the date of\nthis Agreement, to so include their securities in such Registration Statement or\namendment or supplement thereto; provided, however, that the Company shall use\nits best efforts to cause such holders to waive their rights to be so included\n(it being understood and agreed that the Company will not be required to seek a\nwaiver from America Online in this regard).\n\n                           (d) Obligations of the Investor. In connection with\nthe registration of the Registrable Securities, the Investor shall have the\nfollowing obligations:\n\n                                    (i)     It shall be a condition precedent to\nthe obligations of the Company to complete the registration pursuant to this\nAgreement with respect to the Registrable Securities that the Investor shall\nfurnish to the Company such information regarding itself, the Registrable\nSecurities held by it and the intended method of disposition of the Registrable\nSecurities as shall be required to effect the registration of such Registrable\nSecurities and shall execute such documents in connection with such registration\nas the Company may reasonably request. At least two (2) business days prior to\nthe first anticipated filing date of the Registration Statement, the Company\nshall notify the Investor of the information the Company requires from the\nInvestor.\n\n                                       14\n\n   15\n\n                                    (ii) The Investor, by its acceptance of the\nRegistrable Securities, agrees to cooperate with the Company as reasonably\nrequested by the Company in connection with the preparation and filing of the\nRegistration Statement hereunder.\n\n                                    (iii) The Investor agrees that, upon receipt\nof any notice from the Company of the happening of any event of the kind\ndescribed in Section 5.2(c)(vi) or 5.2(c)(vii), the Investor will immediately\ndiscontinue disposition of Registrable Securities pursuant to the Registration\nStatement covering such Registrable Securities until receipt by the Investor of\nthe copies of the supplemented or amended prospectus contemplated by Section\n5.2(c)(vi) or 5.2(c)(vii) and, if so directed by the Company, the Investor shall\ndeliver to the Company (at the expense of the Company) or destroy (and deliver\nto the Company a certificate of destruction) all copies in the Investor's\npossession, of the prospectus covering such Registrable Securities current at\nthe time of receipt of such notice.\n\n                                    (iv) The Investor agrees to comply with the\nprospectus delivery requirements under the Securities Act in connection with the\nInvestor's sales of the Registrable Securities.\n\n                                    (v)     The Investor agrees, for so long as\nthe Investor owns any Registrable Securities and upon request of the\nunderwriters managing any underwritten public offering of the Company's Common\nStock, to enter into a standard form of lock-up agreement (not to exceed ninety\n(90) days) in connection with such offering, provided that all officers and\ndirectors of the Company and all shareholders of the Company who hold at least\nthe same number of shares of Common Stock of the Company (including such shares\nissuable upon exercise or conversion of exercisable or convertible securities)\nas the number of shares of Registrable Securities then held by the Investor,\nenter into the same form of lock-up agreement.\n\n                           (e) Expenses of Registration. All reasonable expenses\nincurred by the Company or the Investor in connection with registrations,\nfilings or qualifications pursuant to Sections 5.2(b) and 5.2(c) above,\nincluding, without limitation, all registration, listing and qualifications\nfees, printers and accounting fees, the fees and disbursements of counsel for\nthe Company, the fees and disbursements of one counsel selected by the Investor,\nbut not underwriting discounts and commissions, shall be borne by the Company.\nIn addition, the Company shall pay all of the Investor's reasonable costs and\nexpenses (including legal fees) incurred in connection with the enforcement of\nthe rights of the Investor hereunder. (f) Indemnification.\n\n                                    (i)     To the extent permitted by law, the\nCompany will indemnify, hold harmless and defend (A) the Investor, and (B) the\ndirectors, officers, partners, members, employees and agents of the Investor and\neach person who controls the Investor within the meaning of Section 15 of the\nSecurities Act or Section 20 of the Exchange Act, if any, (each, an \"Indemnified\nPerson\"), against any joint or several losses, claims, damages, liabilities or\nexpenses (collectively, together with actions, proceedings or inquiries by any\nregulatory or self-regulatory organization, whether commenced or threatened, in\nrespect thereof, \"Claims\") to which any of them may become subject insofar as\nsuch Claims arise out of or are based upon: \n\n\n                                       15\n\n   16\n\n(A) any untrue statement or alleged untrue statement of a material fact in the\nRegistration Statement or the omission or alleged omission to state therein a\nmaterial fact required to be stated or necessary to make the statements therein\nnot misleading, (B) any untrue statement or alleged untrue statement of a\nmaterial fact contained in any preliminary prospectus if used prior to the\neffective date of the Registration Statement, or contained in the final\nprospectus related thereto (as amended or supplemented, if the Company files any\namendment thereof or supplement thereto with the SEC) or the omission or alleged\nomission to state therein any material fact necessary to make the statements\nmade therein, in light of the circumstances under which the statements therein\nwere made, not misleading, or (C) any violation or alleged violation by the\nCompany of the Securities Act, the Exchange Act, any other law, including,\nwithout limitation, any state securities law, or any rule or regulation\nthereunder relating to the offer or sale of the Registrable Securities (the\nmatters in the foregoing clauses (A) through (C) being, collectively,\n\"Violations\"). Subject to the restrictions set forth in Section 5.2(f)(iii) with\nrespect to the number of legal counsel, the Company shall reimburse the Investor\nand each other Indemnified Person, promptly as such expenses are incurred and\nare due and payable, for any reasonable legal fees or other reasonable expenses\nincurred by them in connection with investigating or defending any such Claim.\nNotwithstanding anything to the contrary contained herein, the indemnification\nagreement contained in this Section 5.2(f)(i): (A) shall not apply to a Claim\narising out of or based upon a Violation which occurs in reliance upon and in\nconformity with information furnished in writing to the Company by such\nIndemnified Person expressly for use in the Registration Statement or any such\namendment thereof or supplement thereto; (B) shall not apply to amounts paid in\nsettlement of any Claim if such settlement is effected without the prior written\nconsent of the Company, which consent shall not be unreasonably withheld; and\n(C) with respect to any preliminary prospectus, shall not inure to the benefit\nof any Indemnified Person if the untrue statement or omission of material fact\ncontained in the preliminary prospectus was corrected on a timely basis in the\nprospectus, as then amended or supplemented, if such corrected prospectus was\ntimely made available by the Company pursuant to Section 5.2(c)(iii) hereof, and\nthe Indemnified Person was promptly advised in writing not to use the incorrect\nprospectus prior to the use giving rise to a Violation and such Indemnified\nPerson, notwithstanding such advice, used it. Such indemnity shall remain in\nfull force and effect regardless of any investigation made by or on behalf of\nthe Indemnified Person.\n\n                                    (ii) The Investor agrees to indemnify, hold\nharmless and defend, to the same extent and in the same manner set forth in\nSection 5.2(f)(i), the Company, each of its directors, each of its officers who\nsigns the Registration Statement, its employees, agents and each person, if any,\nwho controls the Company within the meaning of Section 15 of the Securities Act\nor Section 20 of the Exchange Act (collectively and together with an Indemnified\nPerson, an \"Indemnified Party\"), against any Claim to which any of them may\nbecome subject, under the Securities Act, the Exchange Act or otherwise, insofar\nas such Claim arises out of or is based upon any Violation, in each case to the\nextent (and only to the extent) that such Violation occurs in reliance upon and\nin conformity with written information furnished to the Company by the Investor\nexpressly for use in connection with the Registration Statement; and subject to\nSection 5.2(f)(iii), the Investor will reimburse any legal or other expenses\n(promptly as such expenses are incurred and are due and payable) reasonably\nincurred by them in connection with investigating or defending any such Claim;\nprovided, however, that the \n\n\n                                       16\n\n   17\n\nindemnity agreement contained in this Section 5.2(f)(ii) shall not apply to\namounts paid in settlement of any Claim if such settlement is effected without\nthe prior written consent of the Investor, which consent shall not be\nunreasonably withheld; provided, further, however, that the Investor shall be\nliable under this Agreement (including this Section 5.2(f)(ii) and Section\n5.2(g)) for only that amount as does not exceed the net proceeds actually\nreceived by the Investor as a result of the sale of Registrable Securities\npursuant to the Registration Statement. Such indemnity shall remain in full\nforce and effect regardless of any investigation made by or on behalf of such\nIndemnified Party and shall survive the transfer of the Registrable Securities\nby the Investor. Notwithstanding anything to the contrary contained herein, the\nindemnification agreement contained in this Section 5.2(f)(ii) shall not inure\nto the benefit of any Indemnified Party (i) with respect to any preliminary\nprospectus if the untrue statement or omission of material fact contained in the\npreliminary prospectus was corrected on a timely basis in the final prospectus,\nas then amended or supplemented, and the Indemnified Party failed to utilize\nsuch corrected prospectus, or (ii) with respect to any liability arising from\nthe failure to deliver any prospectus if the Indemnified Party failed to deliver\nsuch prospectus as required under the Securities Act.\n\n                                    (iii) Promptly after receipt by an\nIndemnified Person or Indemnified Party under this Section 5.2(f) of notice of\nthe commencement of any action (including any governmental action), such\nIndemnified Person or Indemnified Party shall, if a Claim in respect thereof is\nto made against any indemnifying party under this Section 5.2(f), deliver to the\nindemnifying party a written notice of the commencement thereof, and the\nindemnifying party shall have the right to participate in, and, to the extent\nthe indemnifying party so desires, jointly with any other indemnifying party\nsimilarly noticed, to assume control of the defense thereof with counsel\nmutually satisfactory to the indemnifying party and the Indemnified Person or\nthe Indemnified Party, as the case may be; provided, however, that such\nindemnifying party shall not be entitled to assume such defense and an\nIndemnified Person or Indemnified Party shall have the right to retain its own\ncounsel with the fees and expenses to be paid by the indemnifying party, if, in\nthe reasonable opinion of counsel retained by the indemnifying party, the\nrepresentation by such counsel of the Indemnified Person or Indemnified Party\nand the indemnifying party would be inappropriate due to actual or potential\nconflicts of interest between such Indemnified Person or Indemnified Party and\nany other party represented by such counsel in such proceeding or the actual or\npotential defendants in, or targets of, any such action include both the\nIndemnified Person or the Indemnified Party and the indemnifying party and any\nsuch Indemnified Person or Indemnified Party reasonably determines that there\nmay be legal defenses available to such Indemnified Person or Indemnified Party\nwhich are in conflict with those available to such indemnifying party. The\nindemnifying party shall pay for only one separate legal counsel for the\nIndemnified Persons or the Indemnified Parties, as applicable, and such legal\ncounsel shall be selected by the Investor, if the Investor is entitled to\nindemnification hereunder, or by the Company, if the Company is entitled to\nindemnification hereunder, as applicable. The failure to deliver written notice\nto the indemnifying party within a reasonable time after the commencement of any\nsuch action shall not relieve such indemnifying party of any liability to the\nIndemnified Person or Indemnified Party under this Section 5.2(f), except to the\nextent that the indemnifying party is actually prejudiced in its ability to\ndefend such action. The indemnification required by this Section 5.2(f) shall be\nmade by periodic payments of the amount \n\n\n                                       17\n\n   18\n\nthereof during the course of the investigation or defense, as such expense,\nloss, damage or liability is incurred and is due and payable.\n\n                           (g) Reports Under the Exchange Act.  With a view to\nmaking available to the Investor the benefits of Rule 144 promulgated under the\nSecurities Act or any other similar rule or regulation of the SEC that may at\nany time permit the Investor to sell securities of the Company to the public\nwithout registration (\"Rule 144\"), the Company agrees to:\n\n                                    (i)     file with the SEC in a timely manner\nand make and keep available all reports and other documents required of the\nCompany under the Securities Act and the Exchange Act so long as the Company\nremains subject to such requirements and the filing and availability of such\nreports and other documents is required for the applicable provisions of Rule\n144; and\n\n                                    (ii) furnish to the Investor, so long as the\nInvestor owns Registrable Securities, promptly upon written request, (A) a\nwritten statement by the Company that it has complied with the reporting\nrequirements of Rule 144, the Securities Act and the Exchange Act, (B) a copy of\nthe most recent annual or other report of the Company and such other reports and\ndocuments so filed by the Company, and (C) such other information as may be\nreasonably requested to permit the Investor to sell such securities pursuant to\nRule 144 without registration.\n\n\n         6.   MISCELLANEOUS\n\n                  6.1 Successors and Assigns. The terms and conditions of this\nAgreement will inure to the benefit of and be binding upon the respective\nsuccessors and assigns of the parties.\n\n                  6.2 Governing Law. This Agreement will be governed by and\nconstrued under the internal laws of the State of California as applied to\nagreements among California residents entered into and to be performed entirely\nwithin California, without reference to principles of conflict of laws or choice\nof laws.\n\n                  6.3 Counterparts. This Agreement may be executed in two or\nmore counterparts, each of which will be deemed an original, but all of which\ntogether will constitute one and the same instrument.\n\n                  6.4 Headings. The headings and captions used in this Agreement\nare used for convenience only and are not to be considered in construing or\ninterpreting this Agreement. All references in this Agreement to sections and\nparagraphs will, unless otherwise provided, refer to sections and paragraphs\nhereof.\n\n                  6.5 Notices. Any notice required or permitted under this\nAgreement shall be given in writing, shall be effective when received, and shall\nin any event be deemed received and effectively given upon personal delivery to\nthe party to be notified or three (3) business days after deposit with the\nUnited States Post Office, by registered or certified mail, postage prepaid, \n\n\n                                       18\n\n   19\n\nor one (1) business day after deposit with a nationally recognized courier\nservice such as Federal Express under circumstances where such service\nguarantees next business day delivery, or one (1) business day after facsimile\nwith copy delivered by registered or certified mail, postage prepaid and\naddressed to the party to be notified at the address indicated for such party on\nthe signature page hereof or at such other address as the Investor or the\nCompany may designate by giving at least ten (10) days advance written notice\npursuant to this Section 6.5.\n\n                  6.6 No Finder's Fees. Each party represents that it neither is\nnor will be obligated for any finder's or broker's fee or commission in\nconnection with this transaction. The Investor will indemnify and hold harmless\nthe Company from any liability for any commission or compensation in the nature\nof a finders' or broker's fee for which the Investor or any of its officers,\nemployees, consultants or representatives is responsible. The Company will\nindemnify and hold harmless the Investor from any liability for any commission\nor compensation in the nature of a finder's or broker's fee for which the\nCompany or any of its officers, employees, consultants or representatives is\nresponsible.\n\n                  6.7 Survival. All representations and warranties of the\nInvestor and the Company contained herein shall survive the Closing until the\nfirst anniversary of the date of this Agreement, regardless of whether the\napplicable statute of limitations, including extensions thereof, may expire. All\ncovenants and agreements of the Investor and the Company contained herein shall\nsurvive the Closing in perpetuity (except to the extent any such covenant or\nagreement shall expire by its terms). All claims in respect of any breach of\nsuch covenants or agreements shall survive the Closing until the expiration of\none year following the non-breaching party's obtaining actual knowledge of such\nbreach.\n\n                  6.8 Amendments and Waivers. This Agreement may be amended and\nthe observance of any term of this Agreement may be waived (either generally or\nin a particular instance and either retroactively or prospectively), only with\nthe written consent of the Company and the Investor. Any amendment or waiver\neffected in accordance with this Section 6.8 will be binding upon the Investor,\nthe Company and their respective successors and assigns.\n\n                  6.9 Severability. If any provision of this Agreement is held\nto be unenforceable under applicable law, such provision will be excluded from\nthis Agreement and the balance of the Agreement will be interpreted as if such\nprovision were so excluded and will be enforceable in accordance with its terms.\n\n                  6.10 Entire Agreement. This Agreement constitutes the entire\nagreement and understanding of the parties with respect to the subject matter\nhereof and supersedes any and all prior negotiations, correspondence,\nagreements, understandings duties or obligations between the parties with\nrespect to the subject matter hereof.\n\n                  6.11 Further Assurances. From and after the date of this\nAgreement upon the request of the Investor or the Company, the Company and the\nInvestor will execute and deliver such instruments, documents or other writings\nas may be reasonably necessary or desirable to confirm and carry out and to\neffectuate fully the intent and purposes of this Agreement.\n\n                                       19\n\n   20\n\n                  6.12 Meaning of Include and Including. Whenever in this\nAgreement the word \"include\" or \"including\" is used, it shall be deemed to mean\n\"include, without limitation\" or \"including, without limitation,\" as the case\nmay be, and the language following \"include\" or \"including\" shall not be deemed\nto set forth an exhaustive list.\n\n                  6.13 Fees, Costs and Expenses. All fees, costs and expenses\n(including attorneys' fees and expenses) incurred by either party hereto in\nconnection with the preparation, negotiation and execution of this Agreement,\nand the consummation of the transactions contemplated hereby and thereby, shall\nbe the sole and exclusive responsibility of such party.\n\n         IN WITNESS WHEREOF, the parties hereto have executed this Agreement as\nof the date first above written.\n\nEXCITE, INC.                                 NETSCAPE\n                                             COMMUNICATIONS\n                                             CORPORATION\n\n\nBy: \/s\/ Robert C. Hood                       By:  \/s\/ Mike Homer\n   --------------------------------             -------------------------------\n\nName: Robert C. Hood                         Name: Mike Homer\n     ------------------------------               -----------------------------\n\nTitle: EVP - CFO                             Title: EVP\n      -----------------------------                ----------------------------\n\nDate signed:    4\/29\/98                      Date Signed:   4\/29\/98\n            -----------------------                      ----------------------\n\nAddress:  555 Broadway                       Address:  501 East Middlefield Road\n          Redwood City, CA 94063                       Mountain View, CA  94043\n\nTelephone No.: 650\/568-6000                  Telephone No.:  650\/254-1900\n\nFacsimile No.:  650\/568-6029                 Facsimile No.:  650\/528-4123\n\n                      [SIGNATURE PAGE TO WARRANT AGREEMENT]\n\n\n                                       20\n\n   21\n\n                                    EXHIBIT A\n\n\n                             FORM OF INITIAL WARRANT\n\n\n\n   22\n\n\n\n                                    EXHIBIT B\n\n\n                           FORM OF SUBSEQUENT WARRANT\n\n\n\n   23\n\n\n\n                                    EXHIBIT C\n\n\n                      FORM OF OPINION OF COMPANY'S COUNSEL\n\n\n         (1) The Company is a corporation duly organized, validly existing and\nin good standing under the laws of the State of California and has all corporate\npower and authority required to (a) carry on its business as presently\nconducted, and (b) enter into the Agreement and to consummate the transactions\ncontemplated thereby, including the issuance of the Warrants (and the issuance\nof the Shares upon exercise thereof) to the Investor.\n\n         (2) As of the date of the Agreement the capitalization of the Company\nis as follows:\n\n                           (a) Common Stock.  A total of 50,000,000 authorized\nshares of Common Stock, of which 22,317,229 shares were issued and outstanding\nas of March 31, 1998. All of such outstanding shares are validly issued, fully\npaid and non-assessable.\n\n                           (b) Preferred Stock.  A total of 4,000,000 authorized\nshares of Preferred Stock, none of which is issued or outstanding.\n\n         (3) All corporate action on the part of the Company, its officers,\ndirectors and shareholders necessary for the authorization, execution, delivery\nof, and the performance of all obligations of the Company under the Agreement,\nthe authorization and issuance of the Warrants and the authorization,\nreservation for issuance, issuance and delivery of all of the Shares issuable\nupon exercise of the Warrants has been taken, and the Agreement and the Warrants\nconstitute the valid and legally binding obligations of the Company, enforceable\nagainst the Company in accordance with their respective terms.\n\n         (4) The Shares, when issued and delivered upon exercise of the Warrants\nin accordance with the terms thereof, shall be duly and validly issued, fully\npaid and nonassessable and not subject to any statutory preemptive rights.\n\n         (5) Based in part on the representations made by the Investor in\nSection 4 of the Agreement, the Warrants are being issued, and upon exercise\nthereof the Shares will be issued, in full compliance with the registration and\nprospectus delivery requirements of the Securities Act of 1933, as amended (the\n\"Securities Act\"), or in compliance with applicable exemptions therefrom, and\nthe registration and qualification requirements of all applicable securities\nlaws of the state of California.\n\n         (6) No consent, approval, order or authorization of, or registration,\nqualification, designation, declaration or filing with, any federal, state or\nlocal governmental authority on the part of the Company is required in\nconnection with the consummation of the transactions contemplated by the\nAgreement, including the issuance of the Warrants and the issuance of the Shares\nupon exercise thereof, except for the filing of such qualifications or filings\nunder the Securities Act and California securities laws as may be required in\nconnection with the \n\n\n                                       21\n\n   24\n\ntransactions contemplated by the Agreement. All such qualifications and filings\nhave been made, in the case of qualifications, on or prior to the date hereof,\nand have been made or will be made, in the case of filings, within the time\nprescribed by law.\n\n         (7) The execution, delivery and performance of the Agreement by the\nCompany, and the consummation by the Company of the transactions contemplated\nthereby, including the issuance of the Warrants and the issuance of the Shares\nupon exercise thereof, do not and will not (i) contravene or conflict with the\nArticles of Incorporation or Bylaws of the Company; (ii) constitute a material\nviolation of any provision of any federal, state, local or foreign law, rule or\nregulation binding upon or applicable to the Company; or (iii) constitute a\ndefault or require any consent under, give rise to any right of termination,\ncancellation or acceleration of, or to a loss of any benefit to which the\nCompany is entitled under, or result in the creation or imposition of any lien,\nclaim or encumbrance on any assets of the Company under, any contract to which\nthe Company is a party and which is attached as an Exhibit to one of the SEC\nDocuments.\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7487,8328],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9560,9572],"class_list":["post-41360","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-excite-inc","corporate_contracts_companies-netscape-communications-corp","corporate_contracts_industries-technology__software","corporate_contracts_types-finance","corporate_contracts_types-finance__warrant"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41360","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41360"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41360"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41360"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41360"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}