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EXHIBIT 4.03
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of February 3, 1998 (the "EFFECTIVE DATE") by and between
Excite, Inc., a California corporation ("EXCITE") and the persons and entities
listed on Exhibit A hereby who immediately prior to the Effective Time of the
Merger (as defined below) are: (i) all of the stockholders (collectively, the
"SHAREHOLDERS" and each individually a "SHAREHOLDER") of MatchLogic, Inc., a
Delaware corporation ("MatchLogic"), and (ii) all of the holders of issued and
outstanding warrants of MatchLogic (collectively, the "WARRANTHOLDERS" and each
individually as "WARRANTHOLDER").
R E C I T A L S
A. MatchLogic, Excite and Xcite Acquisition Corporation ("MERGER SUB")
have entered into an Agreement and Plan of Reorganization (the "PLAN") dated as
of January 15, 1998, pursuant to which Merger Sub will merge with and into
MatchLogic in a reverse triangular merger with MatchLogic to be the surviving
corporation of the Merger (the "MERGER").
B. As a condition precedent to the consummation of the Merger, Section
1.5.1 of the Plan provides that the Shareholders and Warrantholders shall be
granted certain registration rights with respect to the shares of Excite's
Common Stock that are issued to the Shareholders in the Merger or which are
issuable upon exercise of assumed warrants (the "MERGER SHARES"), subject to the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the above recitals and the mutual
covenants hereinafter set forth, the parties hereto hereby agree as follows:
1. REGISTRATION RIGHTS.
1.1 Definitions. For purposes of this Section 1:
(a) Registration. The terms "REGISTER," "REGISTERED,"
and "REGISTRATION" refer to a registration effected by preparing and filing a
registration statement in compliance with the Securities Act of 1933, as amended
(the "1933 ACT"), and the declaration or ordering of effectiveness of such
registration statement.
(b) Registrable Securities. The term "REGISTRABLE
SECURITIES" means: (1) all of the Merger Shares, and (2) any shares of Common
Stock of Excite issued as a dividend or other distribution with respect to, or
in exchange for or in replacement of, the Merger Shares; excluding in all cases,
however, (i) any Registrable Securities sold by a person in a transaction in
which rights under this Section 1 are not assigned in accordance with Section 2
of this Agreement, (ii) any Registrable Securities sold in a public offering
pursuant to a registration statement filed with the SEC or sold to the public
pursuant to Rule 144 promulgated under the 1933 Act ("RULE 144"); or (iii) all
of the Registrable Securities of any Holder if all of such Registrable
Securities with respect to such Holder may be sold in the public market in a
three-month period without registration under the 1933 Act pursuant to Rule 144.
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(c) Prospectus. The term "PROSPECTUS" shall mean the
prospectus included in any Registration Statement filed pursuant to the
provisions hereof (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the 1933
Act), as amended or supplemented by any prospectus supplement (including,
without limitation, any prospectus supplement with respect to the terms of the
offering of any portion of the Registrable Securities covered by such
Registration Statement), and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
(d) Holder. For purposes of this Agreement, the term
"HOLDER" means any person owning of record Registrable Securities.
(e) SEC. The term "SEC" or "COMMISSION" means the
U.S. Securities and Exchange Commission.
1.2 Registration.
(a) Initial Registration. Excite shall prepare and
file with the SEC within ninety (90) days following the Closing (as defined in
the Plan), and use its best efforts to have declared effective as soon as
practicable thereafter, a registration statement (a "REGISTRATION STATEMENT")
providing for the resale by the Holders of all of the Registrable Securities
then owned (or to be owned upon exercise of warrants) by the Holders. Excite
shall use its best efforts to keep the Registration Statement continuously
effective, pursuant to the rules, regulations or instructions under the 1933 Act
applicable to the registration statement used by Excite for such Registration
Statement, for such period (the "EFFECTIVENESS PERIOD") ending on the date when
the Registrable Securities cease to meet the definition of Registrable
Securities pursuant to Section 1.1(b).
(b) Suspension. If Excite shall determine pursuant to
the good faith judgment of the Board of Directors of Excite, that it would be
seriously detrimental to Excite and its shareholders for resales of Registrable
Securities to be made pursuant to the Registration Statement, due to (A) the
existence of a material development or potential material development with
respect to or involving Excite which Excite would be obligated to disclose in
the Prospectus contained in the Registration Statement, which disclosure would
in the good faith judgment of the Board of Directors of Excite be premature or
otherwise inadvisable at such time and would have a material adverse affect upon
Excite and its shareholders, or (B) the occurrence of any event that makes any
statement made in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by reference untrue
in any material respect or which requires the making of any changes in the
Registration Statement or Prospectus so that it will not contain any untrue
statement of a material fact required to be stated therein or necessary to make
the statements therein not misleading or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, then
Excite shall deliver a certificate in writing to the Holders to the effect of
the foregoing and, upon receipt of such certificate, the use of the Registration
Statement and Prospectus will be deferred or suspended and will not recommence
until (1) such Holder's receipt from Excite of copies of the supplemented or
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amended Prospectus, or (2) such Holders are advised in writing by Excite that
the Prospectus may be used. Excite will use its best efforts to ensure that the
use of the Registration Statement and Prospectus may be resumed, as soon as
practicable and, in the case of a pending development or event referred to in
(A) above, as soon, in the judgment of Excite, as disclosure of the material
information relating to such pending development would not have a materially
adverse effect on Excite's ability to consummate the transaction, if any, to
which such development relates. Notwithstanding the foregoing or any other
provision of this Agreement, the period during which Excite shall be required to
maintain the effectiveness of the Registration Statement shall be extended by
one (1) day for each full or partial day during which the use of such
Registration Statement or Prospectus is deferred or suspended by Excite in
accordance with this Section 1.2(b).
(c) Expenses. All reasonable expenses, other than
underwriting discounts and brokers commissions, incurred in connection with the
Registration Statement shall be borne by Excite.
1.3 Obligations of Excite. Excite shall, as expeditiously as
reasonably possible:
(a) Prepare promptly and file with the SEC the
Registration Statement as provided in Section 1.2(a), which Registration
Statement (including any amendments or supplements thereto and prospectuses
contained therein) shall not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein, or necessary to
make the statements therein, in light of the circumstances in which they were
made, not misleading and cause such Registration Statement to become effective
as soon as practicable.
(b) Prepare promptly and file with the SEC such
amendments and supplements to such Registration Statement and the Prospectus
used in connection with such registration statement as may be necessary to
comply with the provisions of the 1933 Act with respect to the disposition of
all securities covered by such registration statement.
(c) Furnish to Holders such number of copies of a
Prospectus, including a preliminary Prospectus, in conformity with the
requirements of the 1933 Act, and such other documents as reasonably requested
in order to facilitate the disposition of the Registrable Securities owned by it
that are included in such registration.
(d) Use its best efforts to register and qualify the
securities covered by such Registration Statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by Holders,
provided that Excite shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(e) Notify Holders promptly (i) of any request by the
SEC or any other federal or state governmental authority during the period of
effectiveness of the Registration Statement for amendments or supplements to
such Registration Statement or related prospectus or for additional information,
(ii) of the issuance by the SEC or any other federal or state governmental
authority of any stop order suspending the effectiveness of the Registration
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Statement or the initiation of any proceedings for that purpose, (iii) of the
receipt by Excite of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (iv) of the happening of any event which makes any
statement made in the Registration Statement or Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue in any
material respect or which requires the making of any changes in the Registration
Statement or Prospectus so that it will not contain any untrue statement of a
material fact required to be stated therein or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, and (v) of Excite's determination that a post-effective amendment to
the Registration Statement would be appropriate.
1.4 Furnish Information. It shall be a condition precedent to
the obligations of Excite to take any action pursuant to Section 1.2 that each
Holder shall furnish to Excite such information regarding Holder, the
Registrable Securities held by Holder, and the intended method of disposition of
such securities as shall be required to timely effect the registration of
Holder's Registrable Securities.
1.5 Indemnification
(a) By Excite. To the extent permitted by law, Excite
will indemnify and hold harmless each of the Holders, officers and directors,
employees and agents of a Holder or underwriter (as defined in the 0000 Xxx) and
each person, if any, who controls a Holder within the meaning of the 1933 Act or
the Securities Exchange Act of 1934 (the "1934 ACT"), against any losses,
claims, damages, or liabilities (joint or several) to which they or any of them
may become subject under the 1933 Act, the 1934 Act or other federal or state
law, insofar as such losses, claims, damages, or liabilities (or actions in
respect thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively a "VIOLATION"):
(i) any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement,
including any preliminary prospectus or final prospectus
contained therein or in any amendments or supplements thereto;
(ii) the omission or alleged omission to state in the
Registration Statement, including any preliminary prospectus
or final prospectus contained therein or in any amendments or
supplements thereto, a material fact required to be stated
therein, or necessary to make the statements therein not
misleading; or
(iii) any violation or alleged violation by Excite of
the 1933 Act, the 1934 Act, any federal or state securities
law or any rule or regulation promulgated under the 1933 Act,
the 1934 Act or any federal or state securities law in
connection with the offering covered by such Registration
Statement.
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Excite will reimburse each Holder, such officer, director, employee or agent,
underwriter or controlling person for any legal or other expenses reasonably
incurred by them, as incurred, in connection with investigating or defending any
such loss, claim, damage, liability or action; provided however, that the
indemnity agreement contained in this subsection 1.5(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of Excite (which consent
shall not be unreasonably withheld), nor shall Excite be liable in any such case
for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by Holder, or by such, officer, director, employee,
agent, underwriter or controlling person of any Holder.
(b) By Holders. To the extent permitted by law, each
Holder will indemnify and hold harmless Excite, each of its directors, each of
its officers who have signed the Registration Statement, each person, if any,
who controls Excite within the meaning of the 1933 Act, any other employee or
agent of Excite, each other Holder, each person, if any, who controls such
Holder within the meaning of the 1933 Act, and any other employee or agent of
such Holder, against any losses, claims, damages or liabilities (joint or
several) to which Excite or any such director, officer, or controlling person,
employee or agent may become subject under the 1933 Act, the 1934 Act or other
federal or state law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by such
Holder expressly for use in connection with such Registration Statement; and
such Holder will reimburse any legal or other expenses reasonably incurred by
Excite or any such director, officer, or controlling person, employee or agent
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement contained
in this subsection 1.5(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of such Holder, which consent shall not be unreasonably
withheld; and provided further, that the total amounts payable in indemnity by
Holder under this Section 1.5(b) in respect of any Violation shall not exceed
the net proceeds received by Holder in the registered offering out of which such
Violation arises.
(c) Notice. Promptly after receipt by an indemnified
party under this Section 1.5 of notice of the commencement of any action
(including any governmental action), such indemnified party will, if a claim for
indemnification in respect thereof is to be made against any indemnifying party
under this Section 1.5, deliver to the indemnifying party a written notice of
the commencement of such an action and the indemnifying party shall have the
right to participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed, to assume the
defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own
counsel, with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential conflict of
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any
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such action, if prejudicial to its ability to defend such action, shall (to the
extent of such prejudice) relieve such indemnifying party of any liability to
the indemnified party under this Section 1.5, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section 1.5.
(d) Defect Eliminated in Final Prospectus. The
foregoing indemnity agreements of Excite and such Holders are subject to the
condition that, insofar as they relate to any Violation made in a preliminary
prospectus but eliminated or remedied in the amended prospectus on file with the
SEC at the time the Registration Statement becomes effective or in the amended
prospectus filed with the SEC pursuant to SEC Rule 424(b) (the "FINAL
PROSPECTUS"), such indemnity agreements shall not inure to the benefit of any
person if a copy of the Final Prospectus was furnished to the indemnified party
and was not furnished to the person asserting the loss, liability, claim or
damage at or prior to the time such action is required by the 1933 Act.
(e) Contribution. In order to provide for just and
equitable contribution to joint liability under the 1933 Act in any case in
which either (i) Holder (and/or any officer, director, employee, agent,
underwriter or controlling person who may be indemnified under Section 1.5(a)),
makes a claim for indemnification pursuant to this Section 1.5 but it is
judicially determined (by the entry of a final judgment or decree by a court of
competent jurisdiction and the expiration of time to appeal or the denial of the
last right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that this Section 1.5 provides for indemnification in
such case, or (ii) contribution under the 1933 Act may be required on the part
of such Holder (and/or any officer, director, employee, agent, underwriter or
controlling person who may be indemnified under Section 1.5 (a)) in
circumstances for which indemnification is provided under this Section 1.5;
then, and in each such case, Excite and such Holder (and/or such other person)
will contribute to the aggregate losses, claims, damages or liabilities to which
they may be subject (after contribution from others) in proportion to their
relative fault as determined by a court of competent jurisdiction; provided
however, that in no event, except in instances of intentional fraud by the
Holder in which case there is no limitation, (i) shall any Holder be responsible
for more than the portion represented by the percentage that the public offering
price of its Registrable Securities offered by and sold under the Registration
Statement bears to the public offering price of all securities offered by and
sold under such Registration Statement or (ii) shall a Holder be required to
contribute any amount in excess of the public offering price of all such
securities offered and sold by such Holder pursuant to such Registration
Statement; and in any event, no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) will be
entitled to contribution from any person or entity who was not guilty of such
fraudulent misrepresentation.
(f) Survival. The obligations of Excite and such
Holder under this Section 1.5 shall survive the completion of any offering of
Registrable Securities in a registration statement, and otherwise.
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1.6 "Market Stand-Off" Agreement. Each Holder hereby agrees
that it shall not, to the extent requested in writing by Excite or the managing
underwriter(s) (who shall be nationally recognized) of securities of Excite and
in connection with an underwritten public offering of securities of Excite with
gross proceeds to Excite of at least Twenty Million Dollars ($20,000,000), sell
or otherwise transfer or dispose of any Registrable Securities or any shares of
capital stock of Excite then owned by such Holder (with the exception of 150,000
shares total from all Holders and other than to donees or partners of the Holder
who agree to be similarly bound) for up to ninety (90) days following the
effective date of the Registration Statement for such underwritten offering;
provided, however, that such agreement shall not apply:
(a) to a Holder who beneficially owns less than one
and one-half percent (1 1/2%) of the outstanding Common Stock of Excite; and
(b) unless all Excite officers, directors, key
employees and beneficial owners then holding at least one and one-half percent
(1 1/2%) of Excite's outstanding Common Stock enter into identical lock-up
agreements.
In order to enforce the foregoing covenant, Excite shall have
the right to place restrictive legends on the certificates representing the
shares subject to this Section and to impose stop transfer instructions with
respect to the shares of stock of each Holder (and the shares or securities of
every other person subject to the foregoing restriction).
2. ASSIGNMENT.
2.1 Assignment. Notwithstanding anything herein to the
contrary, the registration rights of a Holder under Section 1 hereof may be
assigned only to (x) a party who acquires from Holder at least One Hundred
Thousand (100,000) shares of Common Stock that constitute the original number of
Registrable Securities (as such number may be adjusted to reflect subdivisions,
combinations and stock dividends of Excite's Common Stock), (y) or as a
distribution made by a Holder which is a partnership to the partners of such
Holder of Registrable Securities, or (z) to any parent corporation holding
majority voting control or to any wholly-owned corporate subsidiary where such
Holder is a corporation; provided, however that no party may be assigned any of
the foregoing rights until Excite is given written notice by the assigning party
at the time of such assignment stating the name and address of the assignee and
identifying the securities of Excite as to which the rights in question are
being assigned; provided, further that any such assignee shall receive such
assigned rights subject to all the terms and conditions of this Agreement,
including without limitation the provisions of this Section 2.
3. GENERAL PROVISIONS.
3.1 Notices. Any notice, request or other communication
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if personally delivered or if deposited in the U.S. mail by
registered or certified mail, return receipt requested, postage prepaid, as
follows:
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(a) if to Excite, at:
Excite, Inc.
000 Xxxxxxxx
Xxxxxxx Xxxx, XX 00000
Attention: Chief Financial Officer
Facsimile: 650/568-6039
with a copy to:
Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx, Esq.
Facsimile: 650/494-1417
(b) If to Holders:
To the address set forth on Exhibit A hereto
with a copy to:
Xxxxxx Godward LLP
0000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, XX, 00000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile: 303/546-4099
Any party hereto (and such party's permitted assigns) may by notice so given
provide and change its address for future notices hereunder. Notice shall
conclusively be deemed to have been given when personally delivered or when
deposited in the mail in the manner set forth above.
3.2 Entire Agreement. This Agreement and the Plan constitute
and contains 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.
3.3 Amendment of Rights. Any provision of this Agreement may
be amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of Excite and Holders of a majority of all Registrable
Securities then outstanding. Any amendment or waiver effected in accordance with
this Section 3.3 shall be binding upon each Holder, each permitted successor or
assignee of such Holder and Excite.
3.4 Governing Law. This Agreement shall be governed by and
construed exclusively in accordance with the laws of the State of California,
excluding that body of law relating to conflict of laws.
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3.5 Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, then such provision(s) shall
be excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision(s) were so excluded and shall be enforceable in
accordance with its terms.
3.6 Third Parties. Nothing in this Agreement, express or
implied, is intended to confer upon any person, other than the parties hereto
and their successors and assigns, any rights or remedies under or by reason of
this Agreement.
3.7 Successors And Assigns. Subject to the provisions of
Section 2.1, the provisions of this Agreement shall inure to the benefit of, and
shall be binding upon, the successors and permitted assigns of the parties
hereto.
3.8 Captions. The captions to sections of this Agreement have
been inserted for identification and reference purposes only and shall not be
used to construe or interpret this Agreement.
3.9 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.10 Costs And Attorneys' Fees. In the event that any action,
suit or other proceeding is instituted concerning or arising out of this
Agreement or any transaction contemplated hereunder, the prevailing party shall
recover all of such party's costs and attorneys' fees incurred in each such
action, suit or other proceeding, including any and all appeals or petitions
therefrom.
3.11 Legends.
Each Holder understands that prior to the effectiveness of the
Registration Statement certificates or other instruments representing any of the
Registrable Securities acquired by Holder will bear legends substantially
similar to the following, in addition to any other legends required by federal
or state laws:
THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER
APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES ARE SUBJECT
TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE
TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND
APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR
EXEMPTION THEREFROM. THE ISSUER OF THESE SECURITIES MAY
REQUIRE AN OPINION OF COUNSEL IN FORM AND SUBSTANCE
SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED
TRANSFER OR RESALE
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IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS.
Each Holder agrees that, in order to ensure and enforce
compliance with the restrictions imposed by applicable law and those referred to
in the foregoing legends, or elsewhere herein, Excite may, prior to the
effectiveness of the Registration Statement issue appropriate "stop transfer"
instructions to its transfer agent, if any, with respect to any certificate or
other instrument representing Registrable Securities, or if Excite transfers its
own securities, that it may make appropriate notations to the same effect in
Excite's records.
Each Holder also understands that subsequent to the
effectiveness of the Registration Statement, upon the written request of a
Holder, the Holder may surrender the certificates or other instruments
representing any of the Registrable Securities and Excite will, as promptly as
practicable, cause the legend described above to be replaced with a legend
substantially similar to the following (in addition to any other legends
required by state laws):
THE RESALE OF THE SHARES REPRESENTED HEREBY MAY BE MADE ONLY
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT FILED PURSUANT
TO THE TERMS OF A REGISTRATION RIGHTS AGREEMENT BETWEEN EXCITE
AND THE STOCKHOLDER, A COPY OF WHICH IS ON FILE WITH THE
SECRETARY OF EXCITE.
[REST OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
EXCITE, INC. SHAREHOLDERS:
By: /s/ Xxxxxx X. Xxxx By:
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Title: EVP - CFO
Name:
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Title:
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WARRANTHOLDERS:
By:
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Name:
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Title:
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[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
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