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EXHIBIT 4.07
Dated as of November 25, 1996
Institutional Venture Partners VI
Institutional Venture Management VI
IVP Founders Fund I, L.P.
Tribune Company
Xxxxxxx Xxxxxxx Xxxxxxxx & Xxxxx VII
KPCB VII Founders Fund
KPCB Information Sciences Zaibatsu Fund II
(collectively, the "Participating Shareholders")
Re: Registration Rights for Common Stock of Excite, Inc.
Ladies and Gentlemen:
This Letter Agreement ("Letter Agreement") is entered into as of
November 25, 1996, by and among Excite, Inc., a California corporation
("Excite"), America Online, Inc., a Delaware corporation ("AOL"), AOL Ventures,
Inc., a Delaware corporation and a wholly owned subsidiary of AOL ("AOL
Ventures") and the Excite shareholders whose names are set forth on the
signature pages hereto (the "Participating Shareholders"). Reference is hereby
by made to the following agreements:
(1) Restated and Amended Investors' Rights Agreement
("Investors' Rights Agreement") dated as of March 8, 1996 by and among
Excite and the investors (the "Investors") listed on the signature
pages thereto, as further amended by (i) Amendment to the Investors'
Rights Agreement dated as of August 1, 1996 by and among Excite and
the Investors, and (ii) Amendment to the Investors' Rights Agreement
dated as of November 25, 1996 by and among Excite and the Investors
(the "Second Amendment"); and
(2) Registration Rights Agreement ("Registration Rights
Agreement") dated as of November 25, 1996 by and between Excite, AOL
and AOL Ventures ("AOL Ventures") (AOL and AOL Ventures are
collectively referred to herein as "AOL").
As of November 25, 1996, AOL and Excite have entered into an
Acquisition Agreement (the "Acquisition Agreement") and other related
agreements, including the Registration Rights Agreement, pursuant to which AOL
will be issued or have the right to be issued shares of Excite's Series E
Preferred Stock which will be convertible, pursuant to Excite's Articles of
Incorporation, into shares of Excite Common Stock.
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Dated as of November 25, 1996
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The Registration Rights Agreement entered into concurrently with the
Acquisition Agreement is intended to supersede the Investors' Rights Agreement
with respect to all registration rights to be held by AOL with respect to the
shares of Excite Common Stock beneficially owned by it (but does not otherwise
negatively affect the rights of the other parties to the Investors' Rights
Agreement) and by its terms provides AOL with the right to request various
types of registrations of Excite securities held by it (the "AOL
Registrations"). As part of the transaction contemplated by the Acquisition
Agreement AOL negotiated for and desires that none of the Investors under the
Investors' Rights Agreement have piggyback registration rights with respect to
the AOL Registrations. Excite has therefore requested that the Investors, and
the Investors have agreed, to waive such rights by executing the Second
Amendment to the Investors' Rights Agreement.
In consideration of the foregoing and intending to be bound hereby, the
parties to this Letter Agreement agree as follows:
1. Notwithstanding any provision of the Second Amendment to the
Investors' Rights Agreement to the contrary, Excite shall notify the
Participating Shareholders who hold Registrable Securities (as such term is
defined in the Investors' Rights Agreement) in writing at least thirty (30)
days prior to filing by Excite of any registration statement under the
Securities Act on Form S-3 pursuant to the request of AOL under Section 1.3 of
the Registration Rights Agreement.
2. Each Participating Shareholder will be afforded an opportunity
to include in such registration statement all or any part of the Registrable
Securities then held by such Participating Shareholder. Each Participating
Shareholder desiring to include in any such registration statement all or any
part of the Registrable Securities held by such Participating Shareholder
shall, within twenty (20) days after receipt of the above-described notice from
Excite, so notify Excite in writing, and in such notice shall inform Excite of
the number of Registrable Securities such Participating Shareholder wishes to
include in such registration statement. If a Participating Shareholder decides
not to include all of its Registrable Securities in any registration statement
thereafter filed by Excite, such Participating Shareholder shall nevertheless
continue to have the right to include any Registrable Securities in any
subsequent registration statement or registration statements as may be filed by
Excite with respect to offerings of its securities upon the terms and
conditions set forth in the Investors' Rights Agreement.
3. If AOL intends to distribute AOL Registrable Securities
pursuant to a registration requested under Section 1.3 of the Registration
Rights Agreement by means of an underwriting, the right of any Participating
Shareholder's Registrable Securities to be included in such registration
statement pursuant to this Letter Agreement shall be conditioned upon such
Participating Shareholders participating in such underwriting and the inclusion
of such Participating Shareholder's Registrable Securities in the underwriting
to the extent provided herein. All Participating Shareholders proposing to
distribute their Registrable Securities through such underwriting shall enter
into an underwriting agreement in customary form with the managing underwriter
or underwriter(s) selected for such underwriting. Notwithstanding any
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other provision of this Letter Agreement or of the Registration Rights
Agreement, if the managing underwriter(s) determine(s) in good faith that
marketing factors require a limitation of the number of share to be
underwritten, then the managing underwriter(s) may exclude shares (including
Registrable Securities) from the registration and the underwriting, and the
number of shares that may be included in the registration and the underwriting
shall be allocated pro-rata among the AOL Registrable Securities and the
Registrable Securities of Participating Shareholders based upon the total
number of Registrable Securities held by AOL and each of the Participating
Shareholders. If any Participating Shareholder disapproves of the terms of any
such underwriting, such Participating Shareholder may elect to withdraw
therefrom by written notice to Excite and the underwriter, delivered at least
ten (10) business days prior to the effective date of the registration
statement. Any Registrable Securities excluded or withdrawn from such
underwriting shall be excluded and withdrawn from the registration. For any
Participating Shareholder which is a partnership or corporation, the partners,
retired partners and shareholders of such Participating Shareholder, or the
estates and family members of any such partners and retired partners and any
trusts for the benefit of any of the foregoing persons shall be deemed to be a
single "Participating Shareholder", and any pro-rata reduction with respect to
such Participating Shareholder shall be based upon the aggregate amount of
shares carrying registration rights owned by all entities and individuals
included in such "Participating Shareholder", as defined in this sentence.
4. The Participating Shareholders' pro-rata share of expenses
incurred in connection with their participation in any registration effected by
Excite at the request of AOL pursuant to Section 1.3 of the Registration Rights
Agreement (excluding underwriters' and brokers' discounts and commission and
fees and expenses of counsel for the Participating Shareholders), including,
without limitation all federal and "blue sky" registration and qualification
fees, printers' and accounting fees, and fees and disbursements of counsel for
Excite, shall be borne by Excite.
5. This Letter Agreement, the Investors' Rights Agreement
and the Registration Rights Agreement constitute and contain the entire
agreement and understanding of the parties with respect to the subject matter
hereof and supersede any and all prior negotiations, correspondence,
agreements, understandings, duties or obligations between the parties
respecting the subject matter hereof. This Letter Agreement may be amended
only by an instrument in writing signed by each of the parties hereto.
6. This Letter Agreement shall be governed by and
construed exclusively in
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accordance with the laws of the State of California, excluding that body of law
relating to conflicts of laws.
7. For the convenience of the parties, this Amendment may
be executed in one or more counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same
instrument.
Please indicate your agreement to the above by executing a copy of this
Letter Agreement where indicated below and returning a copy to Excite.
EXCITE,INC. AOL VENTURES, INC.
By: /s/ Xxxxxx Xxxx By: /s/ Miles Gilburn
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Xxxxxx Xxxx, President
Name: Miles Gilburn
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Title: Senior Vice President
Corporate Development
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AMERICA ONLINE, INC.
Name: /s/ Miles Gilburn
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Title: Senior Vice President
Corporate Development
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PARTICIPATING SHAREHOLDERS:
INSTITUTIONAL VENTURE PARTNERS VI INSTITUTIONAL VENTURE
By: Its Managing General Partner MANAGEMENT VI
Institutional Venture
Management VI
By: /s/ XXXXXXXX X. XXXX By: /s/ XXXXXXXX X. XXXX
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XXXXXXXX X. XXXX, GENERAL PARTNER XXXXXXXX X. XXXX, GENERAL PARTNER
IVP FOUNDERS FUND I, X.X. XXXXXXX XXXXXXX XXXXXXXX &
By: Its General Partner XXXXX VII
Institutional Venture
Management VI
By: /s/ XXXXXXXX X. XXXX By: /s/ XXXXX XXXXXX
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XXXXXXXX X. XXXX, GENERAL PARTNER XXXXX XXXXXX, GENERAL PARTNER
(CONTINUED ON NEXT PAGE)
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KPCB VII FOUNDERS FUND KPCB INFORMATION SCIENCES
ZAIBATSU FUND II
By: Its General Partner
KPCB VII Associates
By: /s/ XXXXX XXXXXX By: /s/ XXXXX XXXXXX
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XXXXX XXXXXX, GENERAL PARTNER XXXXX XXXXXX, GENERAL PARTNER
TRIBUNE COMPANY
By: /s/Xxxx Xxxxx
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Name: Xxxx Xxxxx
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Title: President
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(SIGNATURE PAGE OF LETTER AGREEMENT, DATED AS OF NOVEMBER 25, 1996)
