{"id":43867,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/registration-rights-agreement-excite-inc-america-online-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"registration-rights-agreement-excite-inc-america-online-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/securities\/registration-rights-agreement-excite-inc-america-online-inc.html","title":{"rendered":"Registration Rights Agreement &#8211; Excite Inc., America Online Inc. and AOL Ventures Inc."},"content":{"rendered":"<pre>                          REGISTRATION RIGHTS AGREEMENT\n         This Registration Rights Agreement (this \"AGREEMENT\") is made and\nentered into as of November 25, 1996 (the \"EFFECTIVE DATE\") by and between\nEXCITE, INC., a California corporation (\"EXCITE\"), AMERICA ONLINE, INC., a\nDelaware corporation (\"AOL\"), and AOL VENTURES, INC., a Delaware corporation and\nwholly owned subsidiary of AOL (\"AOL VENTURES\"). References herein to AOL shall\nbe deemed to include AOL Ventures.                                    RECITALS\n         A.   AOL and Excite have entered into a certain Acquisition Agreement\ndated as of November 25, 1996 (the \"ACQUISITION AGREEMENT\") and a certain\nOperating Agreement dated as of November 25, 1996 (the \"OPERATING AGREEMENT\"),\npursuant to which AOL will sell certain assets to Excite and perform certain\nservices for Excite and in partial consideration therefor will receive shares of\nExcite Series E-1 and E-2 Preferred Stock. The Acquisition Agreement also\nprovides that AOL will have the right to exchange shares of Common Stock\ncurrently held by it for shares of Excite Series E-4 Preferred Stock.\n         B.   AOL and Excite have also entered into a certain Technology\nLicense, Distribution, Services and Co-Marketing Agreement dated as of November\n25, 1996 (the \"COMMERCIAL AGREEMENT\") which provides that the warrant currently\nheld by AOL Ventures to purchase shares of Excite Common Stock (the \"WARRANT\")\nwill be amended to make the Warrant exercisable for shares of Excite Series E-3\nPreferred Stock. The shares of Excite Series E-1, E-2, E-3 and E-4 Preferred\nStock (the \"SERIES E STOCK\") will be convertible, pursuant to Excite's Articles\nof Incorporation, into shares of Excite Common Stock (the \"CONVERSION SHARES\").\n         C.   Excite and AOL, along with certain other investors in Excite, are\nparties to a certain Restated and Amended Investors' Rights Agreement dated as\nof March 8, 1996 (the \"INVESTORS' RIGHTS AGREEMENT\"), which provides AOL with\ncertain registration rights for the shares of Excite Common Stock beneficially\nowned by it. It is intended that this Agreement supersede the Investors' Rights\nAgreement with respect to all registration rights to be held by AOL, but not\notherwise negatively affect the rights of the other parties to the Investors'\nRights Agreement.\n         D.   It is the intention of the parties that the issuance by Excite of\nthe Series E Stock and the related Conversion Shares (collectively, the \"EXCITE\nSECURITIES\") be qualified by a permit issued by the Department of Corporations\nof the State of California (the \"DEPARTMENT OF CORPORATIONS\") pursuant to the\nexemption from registration provided by Section 3(a)(10) of the Securities Act\nof 1933 (the \"1933 ACT\"), under which the parties will request the Department of\nCorporations to conduct a hearing for the purpose of determining whether the\nproposed issuance of the Excite Securities in connection with the transactions\ncontemplated by the Acquisition Agreement is fair, just and equitable (the\n\"FAIRNESS HEARING\") and upon such a finding, to grant a permit qualifying such\nissuance (the \"CALIFORNIA PERMIT\"). Excite has agreed to grant to AOL certain\nregistration rights with respect to that portion, if any, of the Conversion\nShares for which a California Permit is not obtained, and certain other\nregistration rights with respect to all of the \n   2\nConversion Shares, all as more fully set forth herein.\n         NOW, THEREFORE, in consideration of the above recitals and the mutual\ncovenants hereinafter set forth, Excite and AOL hereby agree as follows:\n         1.   REGISTRATION RIGHTS.\n              1.1  Definitions.  For purposes of this Section 1:\n                   (a)   Form S-3. The term \"FORM S-3\" means such form under the\n1933 Act as is in effect on the date hereof or any successor registration form\nunder the 1933 Act subsequently adopted by the SEC which permits inclusion or\nincorporation of substantial information by reference to other documents filed\nby Excite with the SEC.\n                   (b)  Holder. The term \"HOLDERS\" shall mean holders of \nRegistrable Securities of Excite that have registration rights pursuant to the\nInvestors' Rights Agreement, provided that Holders shall not be deemed to\ninclude AOL.\n                   (c)  Registration. The terms \"REGISTER,\" \"REGISTERED,\" and\n\"REGISTRATION\" refer to a registration effected by preparing and filing a\nregistration statement in compliance with the 1933 Act, and the declaration or\nordering of effectiveness of such registration statement.\n                   (d)  AOL Registrable Securities. The term \"AOL REGISTRABLE\nSECURITIES\" means: (1) all of the Conversion Shares, and (2) any shares of\nCommon Stock of Excite issued as a dividend or other distribution with respect\nto, or in exchange for or in replacement of, the Conversion Shares; excluding in\nall cases, however, (i) any AOL Registrable Securities sold by a person in a\ntransaction in which rights under this Section 1 are not assigned in accordance\nwith this Agreement, or (ii) any AOL Registrable Securities sold in a public\noffering pursuant to a registration statement filed with the SEC or sold\npursuant to Rule 144 promulgated under the 1933 Act (\"RULE 144\").\n                   (e)  Prospectus: The term \"PROSPECTUS\" shall mean the\nprospectus included in any Shelf Registration Statement or other registration on\nForm S-3 (including, without limitation, a prospectus that discloses information\npreviously omitted from a prospectus filed as part of an effective registration\nstatement in reliance upon Rule 430A promulgated under the 1933 Act), as amended\nor supplemented by any prospectus supplement (including, without limitation, any\nprospectus supplement with respect to the terms of the offering of any portion\nof the AOL Registrable Securities covered by such Shelf Registration Statement),\nand all other amendments and supplements to the Prospectus, including\npost-effective amendments, and all material incorporated by reference or deemed\nto be incorporated by reference in such Prospectus.\n                   (f)  Registrable Securities. The term \"REGISTRABLE \nSECURITIES\" shall have the meaning ascribed to such term in the Investor's\nRights Agreement, except that for purposes of this Agreement only, Registrable\nSecurities shall not be deemed to include any securities of Excite held by AOL.\n                   (g)  Excite Registrable Securities. The term \"EXCITE\nREGISTRABLE                                      -2-\n   3\nSECURITIES\" collectively means the AOL Registrable Securities and the\nRegistrable Securities.\n                   (h)  SEC. The term \"SEC\" or \"COMMISSION\" means the U.S.\nSecurities and Exchange Commission.\n                   (i)  Shelf Registration Statement. See Section 1.2(a).\n              1.2  Form S-3 Shelf Registration.\n                   (a)  Registration. Excite shall prepare and file with the SEC\nwithin 30 days following the Closing Date (as defined in Section 1.4 of the\nAcquisition Agreement), and use its best efforts to have declared effective as\nsoon as practicable thereafter, a registration statement on Form S-3 (provided\nthat at such time Excite is eligible to file a registration statement on Form\nS-3) providing for the resale by AOL of all of the AOL Registrable Securities in\naccordance with the manner of sale provisions set forth in Rule 144(f) under the\n1933 Act or otherwise in customary brokerage transactions on the Nasdaq National\nMarket or other public market on which Excite's shares of Common Stock are\ntraded (the \"SHELF REGISTRATION STATEMENT\"). Excite shall use its best efforts\nto keep the Shelf Registration Statement continuously effective, pursuant to the\nrules, regulations or instructions applicable to the Form S-3 used by Excite for\nsuch Shelf Registration Statement or the 1933 Act, until the date that is two\nyears after the Closing Date or such shorter period ending (A) when the AOL\nRegistrable Securities cease to meet the definition of AOL Registrable\nSecurities pursuant to Section 1.1(d) or (B) Excite's obligations hereunder\nterminate pursuant to Section 1.9; provided, however:\n                        (i)  that AOL will sell the AOL Registrable Securities\npursuant to such registration only during a \"PERMITTED WINDOW\" (as defined\nbelow), provided that there will be no more than four Permitted Windows during\nthe effectiveness of the Shelf Registration Statement; and that there will be at\nleast a 90-day interval between any two Permitted Windows.\n                        (ii) if Excite furnishes to AOL a certificate signed by\nthe President or Chief Executive Officer of Excite stating that, in the good\nfaith judgment of the Board of Directors of Excite, it would be seriously\ndetrimental to Excite and its shareholders for such Form S-3 registration to be\neffected at such time (or, in the case a \"NOTICE OF RESALE\" (as defined below)\nhas been given, that would be seriously detrimental to Excite and its\nshareholders for the Permitted Window to commence at such time) due to (A) the\nexistence of a material development or potential material development involving\nExcite which Excite would be obligated to disclose in the Prospectus contained\nin the Shelf Registration Statement, which disclosure would in the good faith\njudgment of the Board of Directors of Excite be premature or otherwise\ninadvisable at such time and would have a material adverse affect upon Excite\nand its shareholders or (B) concurrent public filings with the SEC of other\nregistration statements; in which event(s) Excite will have the right to defer\nthe filing (the \"DEFERRAL RIGHT\") of the Form S-3 registration statement (or the\ncommencement of the Permitted Window, as the case may be) for a period of not\nmore than 60 days after the date it would otherwise be required to file the\nShelf Registration Statement pursuant to this Section 1.2(a) (or after receipt\nof the Notice of Resale, as the case may be); provided, however, that Excite\nwill not utilize the Deferral Right more than once in any twelve month period;\nand provided further, however, that Excite may defer the filing \n                                      -3-\n   4\nof the Shelf Registration Statement (or the commencement of the Permitted Window\nas the case may be) for up to 90 days if the material development or potential\nmaterial development or SEC filing that is the reason for the deferral directly\nrelates to AOL and for up to 180 days if so requested by an underwriter in\nconnection with an underwritten offering of Excite securities so long as the\nselling shareholders in such underwritten offering are subject to a lock-up\nagreement of the same duration (other than with respect to Excite securities to\nbe sold by such selling shareholders in such underwritten offering);\n                        (iii)  that Excite will not be required to effect any\nsuch registration, qualification or compliance in any particular jurisdiction in\nwhich Excite would thereby be required to qualify to do business or to execute a\ngeneral consent to service of process.\n                        (iv)   that Excite will not be required to effect any \nsuch registration, qualification or compliance of any AOL Registrable Securities\nwith respect to which a California Permit is granted which provides an exemption\nfrom the registration requirements of the 1933 Act.\n                   (b)  Permitted Window.For the purposes of this Section 1.2, a\n\"PERMITTED WINDOW\" is a period of 30 consecutive calendar days commencing upon\nreceipt by AOL of Excite's written notification to AOL in response to a Notice\nof Resale that the Prospectus contained in the Shelf Registration Statement is\navailable for resale. In order to cause a Permitted Window to commence, AOL must\nfirst give written notice to Excite of its present intention to sell part or all\nof the AOL Registrable Securities pursuant to such registration (a \"NOTICE OF\nRESALE\"). Upon receipt of such Notice of Resale, Excite will give written notice\nto AOL as soon as practicable, but in no event not more than five business days\nafter such receipt, that (A) the Prospectus contained in the Shelf Registration\nStatement is current and that the Permitted Window will commence on the date\nsuch notice is received by AOL, (B) it is necessary for Excite to supplement the\nProspectus or make an appropriate filing under the Securities Exchange Act of\n1934, as amended, (the \"1934 ACT\") so as to cause the Prospectus to become\ncurrent (unless a certificate of the President is delivered as provided in\n1.2(a)(ii) above), or (C) Excite is required under the 1933 Act and the\nregulations thereunder to amend the Shelf Registration Statement in order to\ncause the Prospectus to be current (unless a certificate of the President is\ndelivered as provided in 1.2(a)(ii) above). In the event that Excite determines\nthat a supplement to the Prospectus, the filing of a report pursuant to the 1934\nAct or an amendment to the Shelf Registration Statement required under the 1933\nAct, as provided above, is necessary, it will take such actions as soon as\npracticable; whereupon it will notify AOL of the filing of such supplement,\nreport or amendment, and, in the case of an amendment, the effectiveness\nthereof, and the Permitted Window will then commence.\n                   (c)  Closing of Permitted Window. During a Permitted Window\nand in the event (i) of the happening of any event of the kind described in\nSection 1.5(f) hereof or (ii) that, in the judgment of Excite's Board of\nDirectors, it is advisable to suspend use of the Prospectus for a discrete\nperiod of time due to pending corporate developments or public filings with the\nSEC, Excite shall deliver a certificate in writing to AOL to the effect of the\nforegoing and, upon receipt of such certificate, the Permitted Window shall\nterminate. The Permitted Window shall resume upon AOL's receipt of copies of the\nsupplemented or amended Prospectus,                                       -4-\n\n   5\nor at such time as AOL is advised in writing by Excite that the Prospectus may\nbe used, and at such time as AOL has received copies of any additional or\nsupplemental filings that are incorporated or deemed incorporated by reference\nin such Prospectus and which are required to be delivered as part of the\nProspectus. Excite will use its best efforts to ensure that the use of the\nProspectus may be resumed, and the Permitted Window will commence, as soon as\npracticable and, in the case of a pending corporate development or SEC filing,\nas soon, in the judgment of Excite's chief executive officer, as disclosure of\nthe material information relating to such pending corporate development or SEC\nfiling would not have a materially adverse effect on Excite's ability to\nconsummate the transaction, if any, to which such corporate development or SEC\nfiling relates, but in any event the Permitted Window shall resume no later than\nthe later of (x) 60 days after it has been terminated pursuant to this Section\n1.2(c) or (y) the beginning of the calendar quarter subsequent to the calendar\nquarter in which the Permitted Window was terminated.\n                   (d)  Expenses. The first fifty thousand dollars ($50,000) of\nfees and expenses incurred by Excite in connection with the Fairness Hearing,\nthe Shelf Registration Statement and actions taken by Excite in connection with\neach Permitted Window (taken in the aggregate) shall be borne by Excite, and AOL\nshall pay all fees and expenses thereafter. Notwithstanding the foregoing,\nExcite shall not be required to pay for any fees and expenses in connection with\nthe commencement of a Permitted Window begun pursuant to this Section 1.2 if the\nrequest to commence the Permitted Window is subsequently withdrawn at the\nrequest of AOL, unless such withdrawal is the result of a material adverse\nchange in the business of Excite that was unknown to AOL at the time the request\nto commence the Permitted Window was made and the withdrawal of such request is\nmade with reasonable promptness upon learning of such material adverse change. A\nwithdrawal of a request to commence a Permitted Window will not be applied\nagainst the maximum of four Permitted Windows provided to AOL under this\nAgreement if such withdrawal was made pursuant to the immediately preceding\nsentence or if the withdrawal is at the request of Excite.\n              1.3  Form S-3 Registration.\n                   (a)  Request by Holders. If Excite shall receive at any time\nduring which it is eligible to file a registration statement on Form S-3, a\nwritten request from AOL that Excite effect a registration statement under the\n1933 Act on Form S-3 and any related qualification or compliance with respect to\nall or a part of the AOL Registrable Securities, then Excite shall, as soon as\npracticable, effect such registration and all such qualifications and\ncompliances as may be so requested and as would permit or facilitate the sale\nand distribution of all or such portion of AOL's Registrable Securities which\nAOL requests to be registered.\n                   (b)  Underwriting. If AOL intends to distribute the AOL\nRegistrable Securities covered by its request by means of an underwriting, then\nit shall so advise Excite as a part of its request made pursuant to this Section\n1.3. AOL shall enter into an underwriting agreement in customary form with the\nmanaging underwriter or underwriters selected for such underwriting by Excite.\nNotwithstanding any other provision of this Section 1.3, if the underwriter(s)\nadvise(s) Excite in writing that marketing factors require a limitation of the\nnumber of securities to be underwritten then Excite shall so advise AOL, and the\nnumber of AOL Registrable Securities that may be included in the underwriting\nshall be reduced as required by                                       -5-\n\n   6\nthe underwriter(s), provided that any securities included in the underwriting by\nholders of Excite securities other than AOL shall be withdrawn completely from\nthe underwriting before the number of AOL Registrable Securities that may be\nincluded in the underwriting shall be reduced. Any AOL Registrable Securities\nexcluded and withdrawn from such underwriting shall be withdrawn from the\nregistration.\n                   (c)  Maximum Number of Demand Registrations. Excite is\nobligated to effect only two (2) such registrations pursuant to this Section1.3.\n                   (d)  Deferral; Jurisdictional Requirements. Notwithstanding\nthe foregoing, if Excite shall furnish to AOL, a certificate signed by the\nPresident or Chief Executive Officer of Excite stating that in the good faith\njudgment of the Board of Directors of Excite, it would be seriously detrimental\nto Excite and its shareholders for such registration statement to be filed and\nit is therefore essential to defer the filing of such registration statement,\nthen Excite shall have the right to defer such filing for a period of not more\nthan 60 days after receipt of the request of AOL; provided, however, that Excite\nmay not utilize this right more than once in any twelve (12) month period.\nExcite will not be required to effect any registration, qualification or\ncompliance pursuant to this Section 1.3 in any particular jurisdiction in which\nExcite would thereby be required to qualify to do business or to execute a\ngeneral consent to service of process.\n                   (e)  Expenses. All expenses incurred in connection with a\nregistration pursuant to this Section 1.3, including without limitation all\nregistration and qualification fees, printers' and accounting fees, fees and\ndisbursements of counsel for Excite, fees and disbursements of counsel for AOL,\nand underwriters' discounts and commissions, shall be borne by AOL.\n                   (f)  Withdrawn Request. AOL may withdraw a request for\nregistration under this Section 1.3 at any time, provided that AOL will remain\nliable for all expenses incurred in conjunction therewith. A request for\nregistration that is so withdrawn shall not count toward the maximum number of\nregistrations provided for in Section 1.3(c).\n              1.4  Piggyback Registrations. Excite shall notify AOL in\nwriting at least thirty (30) days prior to filing any registration statement\nunder the 1933 Act for purposes of effecting a public offering of securities of\nExcite (including, but not limited to, registration statements relating to\nsecondary offerings of securities of Excite, but excluding registration\nstatements on Form S-8 or S-4 or relating solely to any employee benefit plan or\nan acquisition of any entity or business) and will afford AOL, subject to the\nterms and conditions set forth herein, an opportunity to include in such\nregistration statement all or any part of the AOL Registrable Securities then\nheld by AOL. AOL shall, within twenty (20) days after receipt of the\nabove-described notice from Excite, so notify Excite in writing, and in such\nnotice shall inform Excite of the number of AOL Registrable Securities AOL\nwishes to include in such registration statement. If AOL decides not to include\nall of the AOL Registrable Securities in any registration statement thereafter\nfiled by Excite, AOL shall nevertheless continue to have the right to include\nany AOL Registrable Securities not included in such registration statement in\nany subsequent registration statement or registration statements as may be filed\nby Excite with respect to offerings of its securities, all upon the terms and\nconditions set forth herein.                                      -6-\n   7\n                   (a) Underwriting. If a registration statement with respect to\nwhich Excite gives notice under this Section 1.4 pertains to an underwritten\noffering, then Excite shall so advise AOL. In such event, the right of AOL to\nhave the AOL Registrable Securities included in a registration pursuant to this\nSection 1.4 shall be conditioned upon AOL's participation in such underwriting\nand the inclusion of the AOL Registrable Securities in the underwriting to the\nextent provided herein. AOL shall enter into an underwriting agreement in\ncustomary form with the managing underwriter or underwriter(s) selected for such\nunderwriting. Notwithstanding any other provision of this Agreement, if the\nmanaging underwriter determine(s) in good faith that marketing factors require a\nlimitation of the number of shares to be underwritten, then the managing\nunderwriter(s) may exclude shares (including AOL Registrable Securities) from\nthe registration and the underwriting, and the number of shares that may be\nincluded in the registration and the underwriting shall be allocated, first, to\nExcite, and second, to AOL and the participating Holders on a pro-rata basis\nbased on the total number of Excite Registrable Securities held by each such\nholder; provided however, that the right of the underwriters to exclude shares\n(including AOL Registrable Securities) from the registration and underwriting as\ndescribed above shall be restricted so that: (i) the number of Excite\nRegistrable Securities included in any such registration is not reduced below\ntwenty percent (20%) of the shares included in the registration; and (ii) all\nshares that are not Excite Registrable Securities and are held by other\nshareholders of Excite shall first be excluded from such registration and\nunderwriting before any Excite Registrable Securities are so excluded. If AOL\ndisapproves of the terms of any such underwriting, AOL may elect to withdraw\ntherefrom by written notice to Excite and the managing underwriter, delivered at\nleast ten (10) business days prior to the effective date of the registration\nstatement. Any AOL Registrable Securities excluded or withdrawn from such\nunderwriting shall be excluded and withdrawn from the registration.\n                   (b) Expenses. All expenses incurred in connection with a\nregistration pursuant to this Section 1.4 (excluding underwriters' and brokers'\ndiscounts and commissions), including, without limitation all federal and \"blue\nsky\" registration and qualification fees, printers' and accounting fees, fees\nand disbursements of counsel for Excite and reasonable fees and disbursements of\ncounsel for AOL, shall be borne by Excite.\n              1.5  Obligations of Excite. Whenever required to effect the\nregistration of any AOL Registrable Securities under this Agreement, Excite\nshall, as expeditiously as reasonably possible:\n                   (a) Prepare promptly and file with the SEC a registration\nstatement with respect to such AOL Registrable Securities, which registration\nstatement (including any amendments or supplements thereto and prospectuses\ncontained therein) shall not contain any untrue statement of a material fact or\nomit to state a material fact required to be stated therein, or necessary to\nmake the statements therein, in light of the circumstances in which they were\nmade, not misleading, cause such registration statement to become effective as\nsoon as practicable and with respect to registrations effected pursuant to\nSection 1.3 keep such registrations effective for up to ninety (90) days or such\nshorter period of time as is agreed to in writing by AOL.\n                                      -7-\n   8\n                   (b) Prepare promptly and file with the SEC such amendments\nand supplements to such registration statement and the Prospectus used in\nconnection with such registration statement as may be necessary to comply with\nthe provisions of the 1933 Act with respect to the disposition of all securities\ncovered by such registration statement.\n                   (c) Furnish to AOL such number of copies of a Prospectus,\nincluding a preliminary Prospectus, in conformity with the requirements of the\n1933 Act, and such other documents as it may reasonably request in order to\nfacilitate the disposition of the AOL Registrable Securities owned by it that\nare included in such registration.\n                   (d) Use its best efforts to register and qualify the\nsecurities covered by such registration statement under such other securities or\nBlue Sky laws of such jurisdictions as shall be reasonably requested by AOL,\nprovided that Excite shall not be required in connection therewith or as a\ncondition thereto to qualify to do business or to file a general consent to\nservice of process in any such states or jurisdictions.\n                   (e) In the event of any underwritten public offering, enter\ninto and perform its obligations under an underwriting agreement, in usual and\ncustomary form, with the managing underwriter(s) of such offering.\n                   (f) Notify AOL promptly (i) of any request by the SEC or any\nother federal or state governmental authority during the period of effectiveness\nof a registration statement for amendments or supplements to such registration\nstatement or related prospectus or for additional information, (ii) of the\nissuance by the SEC or any other federal or state governmental authority of any\nstop order suspending the effectiveness of a registration statement or the\ninitiation of any proceedings for that purpose, (iii) of the receipt by Excite\nof any notification with respect to the suspension of the qualification or\nexemption from qualification of any of the AOL Registrable Securities for sale\nin any jurisdiction or the initiation or threatening of any proceeding for such\npurpose, (iv) of the happening of any event which makes any statement made in a\nregistration statement or related prospectus or any document incorporated or\ndeemed to be incorporated therein by reference untrue in any material respect or\nwhich requires the making of any changes in the registration statement or\nprospectus so that, in the case of a registration statement, it will not contain\nany untrue statement of a material fact required to be stated therein or omit to\nstate any material fact required to be stated therein or necessary to make the\nstatements therein not misleading, and that in the case of the Prospectus, it\nwill not contain any untrue statement of a material fact or omit to state any\nmaterial fact required to be stated therein or necessary to make the statements\ntherein, in the light of the circumstances under which they were made, not\nmisleading, and (v) of Excite's reasonable determination that a post-effective\namendment to a registration statement would be appropriate; except that notice\nof an event or determination referred to in (iv) or (v) above (x) need be made\nonly if AOL has delivered the Notice of Resale referred to in Section 2(b) and\nExcite is required to cause a Permitted Window to go into effect pursuant to\nsuch Notice of Resale as provided therein or if a Permitted Window is then in\neffect and (y) need not describe the nature or details of such event or\ndetermination.\n                   (g) Furnish, at the request of AOL, but only with respect to\nan underwritten offering, on the date that such AOL Registrable Securities are\ndelivered to the                                       -8-\n   9\nunderwriters for sale, (i) an opinion, dated as of such date, of the counsel\nrepresenting Excite for the purposes of such registration, in form and substance\nas is customarily given to underwriters in an underwritten public offering and\nreasonably satisfactory to AOL, addressed to the underwriters, and (ii) a\n\"comfort\" letter dated as of such date, from the independent certified public\naccountants of Excite, in form and substance as is customarily given by\nindependent certified public accountants to underwriters in an underwritten\npublic offering and reasonably satisfactory to a AOL, addressed to the\nunderwriters.\n              1.6  Furnish Information. It shall be a condition precedent to the\nobligations of Excite to take any action pursuant to Sections 1.2, 1.3 or 1.4\nthat AOL shall furnish to Excite such information regarding it, the AOL\nRegistrable Securities held by it, and the intended method of disposition of\nsuch securities as shall be required to timely effect the registration of its\nAOL Registrable Securities.\n              1.7  Indemnification. In the event any AOL Registrable Securities\nare included in a registration statement under Sections 1.2, 1.3 or 1.4:\n                   (a)  By Excite. To the extent permitted by law, Excite will\nindemnify and hold harmless AOL, officers and directors of AOL, any underwriter\n(as defined in the 1933 Act) for AOL and each person, if any, who controls AOL\nor such underwriter within the meaning of the 1933 Act or the 1934 Act, against\nany losses, claims, damages, or liabilities (joint or several) to which they may\nbecome subject under the 1933 Act, the 1934 Act or other federal or state law,\ninsofar as such losses, claims, damages, or liabilities (or actions in respect\nthereof) arise out of or are based upon any of the following statements,\nomissions or violations (collectively a \"VIOLATION\"):\n                   (i)   any untrue statement or alleged untrue statement of a\n              material fact contained in a registration statement filed pursuant\n              to this Section 1 (including a registration statement with respect\n              to which AOL exercises it rights under Section 1.4), including any\n              preliminary prospectus or final prospectus contained therein or in\n              any amendments or supplements thereto;\n                   (ii)  the omission or alleged omission to state in a\n              registration statement filed pursuant to this Section 1 (including\n              a registration statement with respect to which AOL exercises it\n              rights under Section 1.4), including any preliminary prospectus or\n              final prospectus contained therein or in any amendments or\n              supplements thereto, a material fact required to be stated\n              therein, or necessary to make the statements therein not\n              misleading; or\n                   (iii) any violation or alleged violation by Excite of the\n              1933 Act, the 1934 Act, any federal or state securities law or any\n              rule or regulation promulgated under the 1933 Act, the 1934 Act or\n              any federal or state securities law in connection with the\n              offering covered by such registration statement;\n                                      -9-\n   10\nand Excite will reimburse each of AOL, such officer or director, underwriter or\ncontrolling person for any legal or other expenses reasonably incurred by them,\nas incurred, in connection with investigating or defending any such loss, claim,\ndamage, liability or action; provided however, that the indemnity agreement\ncontained in this subsection 1.7(a) shall not apply to amounts paid in\nsettlement of any such loss, claim, damage, liability or action if such\nsettlement is effected without the consent of Excite (which consent shall not be\nunreasonably withheld), nor shall Excite be liable in any such case for any such\nloss, claim, damage, liability or action to the extent that it arises out of or\nis based upon a Violation which occurs in reliance upon and in conformity with\nwritten information furnished expressly for use in connection with such\nregistration by AOL, or by such, officer, director, underwriter or controlling\nperson of AOL.\n                   (b) By AOL. To the extent permitted by law, AOL will\nindemnify and hold harmless Excite, each of its directors, each of its officers\nwho have signed the registration statement, each person, if any, who controls\nExcite within the meaning of the 1933 Act, and any underwriter, against any\nlosses, claims, damages or liabilities (joint or several) to which Excite or any\nsuch director, officer, controlling person or underwriter may become subject\nunder the 1933 Act, the 1934 Act or other federal or state law, insofar as such\nlosses, claims, damages or liabilities (or actions in respect thereto) arise out\nof or are based upon any Violation, in each case to the extent (and only to the\nextent) that such Violation occurs in reliance upon and in conformity with\nwritten information furnished by AOL expressly for use in connection with such\nregistration; and AOL will reimburse any legal or other expenses reasonably\nincurred by Excite or any such director, officer, controlling person,\nunderwriter in connection with investigating or defending any such loss, claim,\ndamage, liability or action; provided, however, that the indemnity agreement\ncontained in this subsection 1.7(b) shall not apply to amounts paid in\nsettlement of any such loss, claim, damage, liability or action if such\nsettlement is effected without the consent of AOL, which consent shall not be\nunreasonably withheld; and provided further, that the total amounts payable in\nindemnity by AOL under this Section 1.7(b) in respect of any Violation shall not\nexceed the net proceeds received by AOL in the registered offering out of which\nsuch Violation arises.\n                   (c) Notice. Promptly after receipt by an indemnified party\nunder this Section 1.7 of notice of the commencement of any action (including\nany governmental action), such indemnified party will, if a claim for\nindemnification in respect thereof is to be made against any indemnifying party\nunder this Section 1.7, deliver to the indemnifying party a written notice of\nthe commencement of such an action and the indemnifying party shall have the\nright to participate in, and, to the extent the indemnifying party so desires,\njointly with any other indemnifying party similarly noticed, to assume the\ndefense thereof with counsel mutually satisfactory to the parties; provided,\nhowever, that an indemnified party shall have the right to retain its own\ncounsel, with the fees and expenses to be paid by the indemnifying party, if\nrepresentation of such indemnified party by the counsel retained by the\nindemnifying party would be inappropriate due to actual or potential conflict of\ninterests between such indemnified party and any other party represented by such\ncounsel in such proceeding. The failure to deliver written notice to the\nindemnifying party within a reasonable time of the commencement of any such\naction, if prejudicial to its ability to defend such action, shall relieve such\nindemnifying party of any liability to the indemnified party under this Section\n1.7, but the omission so to deliver written notice to the indemnifying party\nwill not relieve it of any liability that it may have \n                                      -10-\n   11\nto any indemnified party otherwise than under this Section 1.7.\n                   (d)  Defect Eliminated in Final Prospectus. The foregoing\nindemnity agreements of Excite and AOL are subject to the condition that,\ninsofar as they relate to any Violation made in a preliminary prospectus but\neliminated or remedied in the amended prospectus on file with the SEC at the\ntime the registration statement in question becomes effective or in the amended\nprospectus filed with the SEC pursuant to SEC Rule 424(b) (the \"FINAL\nPROSPECTUS\"), such indemnity agreements shall not inure to the benefit of any\nperson if a copy of the Final Prospectus was furnished to the indemnified party\nand was not furnished to the person asserting the loss, liability, claim or\ndamage at or prior to the time such action is required by the 1933 Act.\n                   (e)  Contribution. In order to provide for just and equitable\ncontribution to joint liability under the 1933 Act in any case in which either\n(i) AOL (and\/or any officer, director, underwriter or controlling person who may\nbe indemnified under Section 1.7(a)), makes a claim for indemnification pursuant\nto this Section 1.7 but it is judicially determined (by the entry of a final\njudgment or decree by a court of competent jurisdiction and the expiration of\ntime to appeal or the denial of the last right of appeal) that such\nindemnification may not be enforced in such case notwithstanding the fact that\nthis Section 1.7 provides for indemnification in such case, or (ii) contribution\nunder the 1933 Act may be required on the part of AOL (and\/or any officer,\ndirector, underwriter or controlling person who may be indemnified under Section\n1.7(a)) in circumstances for which indemnification is provided under this\nSection 1.7; then, and in each such case, Excite and AOL (and\/or such other\nperson) or will contribute to the aggregate losses, claims, damages or\nliabilities to which they may be subject (after contribution from others) in\nproportion to their relative fault as determined by a court of competent\njurisdiction; provided however, that in no event, except in instances of fraud\nby AOL in which there is no limitation, (i) shall AOL be responsible for more\nthan the portion represented by the percentage that the public offering price of\nits AOL Registrable Securities offered by and sold under the registration\nstatement bears to the public offering price of all securities offered by and\nsold under such registration statement and (ii) shall AOL be required to\ncontribute any amount in excess of the public offering price of all such\nRegistrable Securities offered and sold by AOL pursuant to such registration\nstatement; and in any event, no person or entity guilty of fraudulent\nmisrepresentation (within the meaning of Section 11(f) of the 1933 Act) will be\nentitled to contribution from any person or entity who was not guilty of such\nfraudulent misrepresentation.\n                   (f)  Survival. The obligations of Excite and AOL under this\nSection 1.7 shall survive the completion of any offering of AOL Registrable\nSecurities in a registration statement, and otherwise.\n              1.8  Rule 144 Reporting. With a view to making available the\nbenefits of certain rules and regulations of the Commission which may at any\ntime permit the sale of the AOL Registrable Securities to the public without\nregistration, for so long as AOL owns any Registrable Securities, Excite agrees\nto:                   (a)  Make and keep adequate, current public information\navailable, as                                       -11-\n   12\nthose terms are understood and defined in Rule 144 under the 1933 Act, at all\ntimes;\n                   (b)  File with the Commission in a timely manner all reports\nand other documents required of Excite under the 1934 Act; and\n                   (c)  So long as AOL owns any AOL Registrable Securities, to\nfurnish to AOL forthwith upon request a written statement by Excite as to its\ncompliance with the reporting requirements of said Rule 144, a copy of the most\nrecent annual or quarterly report of Excite, and such other reports and\ndocuments of Excite as AOL may reasonably request in availing itself of any rule\nor regulation of the Commission allowing a Holder to sell any such securities\nwithout registration.\n              1.9  Termination of Excite's Obligations. Excite shall have no\nobligations to register AOL Registrable Securities (i) if all AOL Registrable\nSecurities have been registered and sold pursuant to registrations effected\npursuant to this Agreement, or (ii) at such time as all AOL Registrable\nSecurities may be sold within a three month period under Rule 144, as it may be\namended from time to time, including but not limited to amendments that reduce\nthat period of time that securities must be held before such securities may be\nsold pursuant to such rule.         2.   ASSIGNMENT.\n              2.1  Assignment. Notwithstanding anything herein to the contrary,\nthe registration rights of AOL under Section 1 hereof may be assigned only to\n(a) a party who acquires from AOL at least fifteen percent (15%) of the shares\nof Common Stock (on an as converted basis) that constituted the original number\nof AOL Registrable Securities (as such number may be adjusted to reflect\nsubdivisions, combinations and stock dividends of Excite's Common Stock) or (b)\nany party who acquires ownership or control of AOL through a merger,\nconsolidation, sale of assets or similar business combination (either such party\nis referred to as a \"ASSIGNEE\"); provided, however that (w) no party may be\nassigned any of the foregoing rights until Excite is given written notice by the\nassigning party at the time of such assignment stating the name and address of\nthe assignee and identifying the securities of Excite as to which the rights in\nquestion are being assigned; (x) that any such Assignee shall receive such\nassigned rights subject to all the terms and conditions of this Agreement,\nincluding without limitation the provisions of this Section 2, and (y) upon such\nan assignment or assignments, the rights held by AOL under this Agreement may\nonly be exercised by persons or entities holding a majority of the AOL\nRegistrable Securities, and (z) no such assignment or assignments shall increase\nthe obligations of Excite hereunder.         3.   GENERAL PROVISIONS.\n              3.1  Notices. Any notice, request or other communication required\nor permitted hereunder shall be in writing and shall be deemed to have been duly\ngiven if personally delivered or if deposited in the U.S. mail by registered or\ncertified mail, return receipt requested, postage prepaid, as follows:\n              (a)  if to Excite, at:                                      -12-\n\n   13                   Excite, Inc.\n                   1091 N. Shoreline Blvd., Suite 200\n                   Mountain View, CA  94043\n                   Attention:  President\n                   Facsimile:  415\/943-2888              with a copy to:\n                   Fenwick &amp; West LLP                   Two Palo Alto Square\n                   Palo Alto, CA  94306\n                   Attention:  Mark Stevens\n                   Facsimile:  415\/494-1417              (b)  If to AOL:\n                   America Online, Inc.                   22000 AOL Way\n                   Dulles, VA  20166\n                   Attention:  General Counsel\n                   Facsimile:  703\/265-2208              with a copy to:\n                   Piper &amp; Marbury L.L.P.\n                   1200 Nineteenth St., N.W.\n                   Washington, D.C.  20036-2430\n                   Attention: Edwin Martin\n                   Facsimile: 202\/223-2085\nAny party hereto (and such party's permitted assigns) may by notice so given\nprovide and change its address for future notices hereunder. Notice shall\nconclusively be deemed to have been given when personally delivered or when\ndeposited in the mail in the manner set forth above.\n              3.2 Entire Agreement. This Agreement, the Acquisition Agreement\nand the Investor Rights Agreement constitute and contains the entire agreement\nand understanding of the parties with respect to the subject matter hereof and\nsupersedes any and all prior negotiations, correspondence, agreements,\nunderstandings, duties or obligations between the parties respecting the subject\nmatter hereof.\n              3.3 Amendment of Rights. Any provision of this Agreement may be\namended and the observance thereof may be waived (either generally or in a\nparticular instance and either retroactively or prospectively), only with the\nwritten consent of Excite and AOL (and\/or any of their permitted successors or\nassigns).\n              3.4 Governing Law. This Agreement shall be governed by and\nconstrued exclusively in accordance with the laws of the State of California,\nexcluding that body of law                                       -13-\n   14\nrelating to conflict of laws.\n              3.5 Severability. If one or more provisions of this Agreement are\nheld to be unenforceable under applicable law, then such provision(s) shall be\nexcluded from this Agreement and the balance of this Agreement shall be\ninterpreted as if such provision(s) were so excluded and shall be enforceable in\naccordance with its terms.\n              3.6 Third Parties. Nothing in this Agreement, express or implied,\nis intended to confer upon any person, other than the parties hereto and their\nsuccessors and assigns, any rights or remedies under or by reason of this\nAgreement.\n              3.7 Successors And Assigns. Subject to the provisions of Section\n2.1, the provisions of this Agreement shall inure to the benefit of, and shall\nbe binding upon, the successors and permitted assigns of the parties hereto.\n              3.8 Captions. The captions to sections of this Agreement have been\ninserted for identification and reference purposes only and shall not be used to\nconstrue or interpret this Agreement.\n              3.9 Counterparts. This Agreement may be executed in counterparts,\neach of which shall be deemed an original, but all of which together shall\nconstitute one and the same instrument.\n              3.10 Costs And Attorneys' Fees. In the event that any action, suit\nor other proceeding is instituted concerning or arising out of this Agreement or\nany transaction contemplated hereunder, the prevailing party shall recover all\nof such party's costs and attorneys' fees incurred in each such action, suit or\nother proceeding, including any and all appeals or petitions therefrom.\n              3.11 Investors' Rights Agreement. AOL agrees that all rights\ngranted to it under the Investors' Rights Agreement are superseded in their\nentirety by the rights granted to AOL herein.\n                [THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK]\n                                      -14-\n   15\n         IN WITNESS WHEREOF, the parties hereto have executed this Agreement as\nof the date and year first above written.\nAMERICA ONLINE, INC.                        EXCITE, INC.\nBy: \/s\/ Miles Gilburne                      By: \/s\/ George Bell\n   ------------------------------------        ---------------------------------\nName:                                       Name:\n     ----------------------------------          -------------------------------\nTitle:                                      Title:\n      ---------------------------------           ------------------------------\nAOL VENTURES, INC.By: \/s\/ Miles Gilburne                   \n   ------------------------------------  \n                                         \nName:                                    \n     ----------------------------------  \n                                         \nTitle:                                   \n      ---------------------------------<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6655,7487],"corporate_contracts_industries":[9510,9513],"corporate_contracts_types":[9632,9629],"class_list":["post-43867","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-america-online-inc","corporate_contracts_companies-excite-inc","corporate_contracts_industries-technology__programming","corporate_contracts_industries-technology__software","corporate_contracts_types-securities__registration","corporate_contracts_types-securities"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43867","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=43867"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43867"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43867"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43867"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}