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As filed with the Securities and Exchange Commission on July 3, 1996
Registration No. 333- _______
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EXCITE, INC.
(Exact name of registrant as specified in its charter)
CALIFORNIA 77-0378215
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1091 N. SHORELINE BOULEVARD
MOUNTAIN VIEW, CALIFORNIA 94043
(Address of principal executive offices)
1995 EQUITY INCENTIVE PLAN
1996 EQUITY INCENTIVE PLAN
1996 DIRECTORS STOCK OPTION PLAN
1996 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
RICHARD B. REDDING
DIRECTOR OF FINANCE,
ACTING CHIEF FINANCIAL OFFICER AND SECRETARY
1091 N. SHORELINE BOULEVARD
MOUNTAIN VIEW, CALIFORNIA 94043
(415) 943-1200
(Name, address and telephone number, including area code, of agent for service)
COPIES TO:
Fred M. Greguras, Esq.
Jeffrey R. Vetter, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------- -----------------------
PROPOSED MAXIMUM
AMOUNT PROPOSED MAXIMUM AGGREGATE OFFERING AMOUNT OF
TO BE OFFERING PRICE PER PRICE REGISTRATION FEE
TITLE OF SECURITIES TO BE REGISTERED REGISTERED SHARE
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value ......... 2,024,186 (1) $ 8.375 (2) $ 16,952,557.75 (2) $ 5,845.7 (2)
--------- ------- --------------- ---------
Common Stock, no par value ......... 1,844,713 (3) 2.80 (4) 5,157,730.56 (4) 1,778.53 (4)
Common Stock, no par value ......... 131,101 (5) 8.375 1,097,970.88 378.61
--------- ------- --------------- ---------
Total ............... 4,000,000 $ 23,208,259.19 $ 8,002.85
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</TABLE>
(1) Additional shares available for grant and not yet subject to outstanding
options as of June 30, 1996 under the 1996 Equity Incentive Plan (the
"1996 Plan", the 1995 Equity Incentive Plan (the "1995 Plan") and the 1996
Directors Stock Option Plan (the "Directors Plan") and available for
issuance as of June 30, 1996 under the 1996 Employee Stock Purchase Plan.
(2) Estimated as of June 28, 1996 pursuant to Rule 457(c) under the Securities
Act of 1933, as amended (the "Securities Act"), solely for the purpose of
calculating the registration fee.
(3) Shares subject to options outstanding as of June 30, 1996 under the 1995
Plan, the 1996 Plan and the Directors Plan.
(4) Weighted average per share exercise price for such outstanding options
pursuant to Rule 457(h)(1) under the Securities Act.
(5) Shares issued upon exercise of stock options granted under the 1995 Plan.
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EXCITE, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's Prospectus filed with the Commission on April
5, 1996 under the Securities Act of 1933, as amended (the
"Securities Act") pursuant to Rule 424(b), which prospectus
contains audited financial statements for the fiscal year
ended December 31, 1995.
(b) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A filed on
March 14, 1996 with the Commission under Section 12(g) of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and declared effective by the Commission on April 3,
1996, and any amendment or report subsequently filed for the
purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities registered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed incorporated by reference herein and to be a part hereof from the date
of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Articles of Incorporation include a provision that
eliminates the personal liability of its directors to the Registrant and its
shareholders for monetary damages for breach of the directors' fiduciary duties
to the fullest extent permitted by law. This limitation has no effect on a
director's liability (i) for acts or omissions that involve intentional
misconduct or a knowing and culpable violation of law, (ii) for acts or
omissions that a director believes to be contrary to the best interests of the
Registrant or its shareholders or that involve the absence of good faith on the
part of the director, (iii) for any transaction from which a director derived an
improper personal benefit, (iv) for acts or omissions that show a reckless
disregard for the director's duty to the Registrant or its shareholders in
circumstances in which the director was aware, or should have been aware, in the
ordinary course of performing a director's duties, of a risk of a serious injury
to the Registrant or its shareholders, (v) for acts or omissions that constitute
an unexcused pattern of inattention that amounts to an abdication of the
director's duty to the Registrant or its shareholders, (vi) under Section 310 of
the California Corporations Code (the "California Code") (concerning contracts
or transactions between the Registrant and a director) or (vii) under Section
316 of the California Code (concerning directors' liability for improper
dividends, loans and guarantees). The provision does not extend to acts or
omissions of a director in his capacity as an officer. Further, the provision
will not affect the availability of injunctions and other equitable remedies
available to the Registrant's shareholders for any violation of a director's
fiduciary duty to the Registrant or its shareholders.
The Registrant's Articles of Incorporation also include an authorization
for the Registrant to indemnify its agents (as defined in Section 317 of the
California Code), through bylaw provisions, by agreement or otherwise, to the
fullest extent permitted by law. Pursuant to this latter provision, the
Registrant's Bylaws provide for indemnification of the Registrant's directors
and officers. In addition, the Registrant, at its discretion, may provide
indemnification to persons whom the Registrant is not obligated to indemnify.
The Bylaws also allow the Registrant to enter into indemnity agreements with
individual directors, officers, employees and other agents. These indemnity
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agreements have been entered into with all directors and provide the maximum
indemnification permitted by law. These agreements, together with the
Registrant's Bylaws and Articles of Incorporation, may require the Registrant,
among other things, to indemnify such directors against certain liabilities that
may arise by reason of their status or service as directors (other than
liabilities resulting from willful misconduct of a culpable nature), to advance
expenses to them as they are incurred, provided that they undertake to repay the
amount advanced if it is ultimately determined by a court that they are not
entitled to indemnification, and to obtain directors' and officers' insurance if
available on reasonable terms.
Section 317 of the California Code and the Registrant's Bylaws make
provision for the indemnification of officers, directors and other corporate
agents in terms sufficiently broad to indemnify such persons, under certain
circumstances for liabilities (including reimbursement of expenses incurred)
arising under the Securities Act.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions or otherwise, the Registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable.
The Registrant maintains directors and officers liability insurance with
a per claim and annual aggregate coverage limit of $5,000,000.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
4.01 Registrant's Articles of Incorporation, as amended.
4.02 Registrant's Bylaws (incorporated herein by reference to Exhibit
3.02 of Registrant's Registration Statement on Form SB-2, File
No. 333-2328-LA, initially filed on March 11, 1996, and as
subsequently amended through April 3, 1996 (the "Form SB-2")).
4.03 Registrant's 1995 Equity Incentive Plan and related documents
(incorporated herein by reference to Exhibit 10.01 of the Form
SB-2).
4.04 Registrant's 1996 Equity Incentive Plan and related documents
(incorporated herein by reference to Exhibit 10.02 of the Form
SB-2).
4.05 Registrant's 1996 Directors Stock Option Plan and related
documents (incorporated herein by reference to Exhibit 10.03 of
the Form SB-2).
4.06 Registrant's 1996 Employee Stock Purchase Plan and related
documents (incorporated herein by reference to Exhibit 10.04 of
the Form SB-2).
4.07 Form of Specimen Certificate for Registrant's Common Stock
(incorporated herein by reference to Exhibit 4.01 of the Form
SB-2).
4.08 Registrant's Restated and Amended Investor's Rights Agreement,
(incorporated herein by reference to Exhibit 4.02 of the Form
SB-2).
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of Ernst & Young LLP, independent accountants.
24.01 Power of Attorney (see page 8).
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ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) above do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions discussed in Item 6 hereof, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Mountain View, State of California, on the 28th day
of June, 1996.
EXCITE, INC.
By: /s/ George Bell
--------------------------------------
George Bell,
President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints George Bell and Richard B. Redding, and
each of them, his true and lawful attorneys-in-fact and agents with full power
of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement on Form S-8, and to file the same with all
exhibits thereto and all documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or his or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
PRINCIPAL EXECUTIVE OFFICER
AND DIRECTOR:
/s/ George Bell President, Chief Executive June 28, 1996
- ---------------------------------------- Officer and a Director
George Bell
PRINCIPAL FINANCIAL OFFICER
AND PRINCIPAL ACCOUNTING OFFICER:
/s/ Richard B. Bedding Director of Finance, June 28, 1996
- ---------------------------------------- Acting Chief Financial
Richard B. Redding Officer and Secretary
ADDITIONAL DIRECTORS:
/s/ Joseph B. Kraus Director and Senior Vice June 28, 1996
- ---------------------------------------- President, Business Development
Joseph B. Kraus
/s/ Vinod Khosla Director June 28, 1996
- ----------------------------------------
Vinod Khosla
/s/ Geoffrey Y. Yang Director June 28, 1996
- ----------------------------------------
Geoffrey Y. Yang
/s/ Robert W. Pittman Director June 28, 1996
- ----------------------------------------
Robert W. Pittman
/s/ Donn M. Davis Director June 28, 1996
- ----------------------------------------
Donn M. Davis
</TABLE>
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EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
4.01 Registrant's Articles of Incorporation, as amended
4.02 Registrant's Bylaws (incorporated herein by reference to Exhibit
3.02 of the Form SB-2)
4.03 Registrant's 1995 Equity Incentive Plan and related documents
(incorporated herein by reference to Exhibit 10.01 of the Form
SB-2)
4.04 Registrant's 1996 Equity Incentive Plan and related documents
(incorporated herein by reference to Exhibit 10.02 of the Form
SB-2)
4.05 Registrant's 1996 Directors Stock Option Plan and related documents
(incorporated herein by reference to Exhibit 10.03 of the Form
SB-2)
4.06 Registrant's 1996 Employee Stock Purchase Plan and related
documents (incorporated herein by reference to Exhibit 10.04 of the
Form SB-2)
4.07 Form of Specimen Certificate for Registrant's Common Stock
(incorporated herein by reference to Exhibit 4.01 of the Form SB-2)
4.08 Registrant's Amended and Restated Investor's Rights Agreement
(incorporated herein by reference to Exhibit 4.02 of the Form SB-2)
5.01 Opinion of Fenwick & West LLP
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01)
23.02 Consent of Ernst & Young LLP, independent accountants
24.01 Power of Attorney (see page 8)
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EXHIBIT 5.01
July 1, 1996
Excite, Inc.
1091 N. Shoreline Boulevard
Mountain View, California 94043
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form S-8
(the "Registration Statement") to be filed by you with the Securities and
Exchange Commission on or about July __, 1996 in connection with the
registration under the Securities Act of 1933, as amended, of an aggregate of
(i) 3,868,899 shares of your Common Stock (the "Plan Stock") subject to issuance
by you upon the exercise of (a) stock options granted by you under your 1995
Equity Incentive Plan, as amended (the "1995 Plan"), (b) stock options granted
or to be granted by you under your 1996 Equity Incentive Plan (the "1996 Plan"),
(c) stock options granted or to be granted by you under your 1996 Directors
Stock Option Plan (the "Directors Plan") and/or (d) purchase rights granted or
to be granted under your 1996 Employee Stock Purchase Plan, as amended (the
"Purchase Plan") and (ii) 131,101 shares of your Common Stock (the "Outstanding
Stock") issued by you pursuant to the exercise of stock options granted to
certain employees under the 1995 Plan.
In rendering this opinion, we have examined the following:
(1) your registration statement on Form SB-2 (File Number 333-2328-LA)
filed with and declared effective by the Securities and Exchange
Commission on April 3, 1996, together with the Exhibits filed as a
part thereof;
(2) the Registration Statement, together with the Exhibits filed as a
part thereof, including, without limitation, the 1995 Plan, the 1996
Plan, the Directors Plan, the Purchase Plan and related documents;
(3) the minutes of meetings and actions by written consent of the
stockholders and Board of Directors that are contained in your minute
book, that are in our possession; and
(4) the stock record books you have provided to us, including records of
the capital stock, stock options and warrants you have issued.
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies, the lack of any undisclosed terminations, modifications, waivers or
amendments to any documents reviewed by us and the due execution and delivery of
all documents where due execution and delivery are prerequisites to the
effectiveness thereof.
As to matters of fact relevant to this opinion, we have relied solely upon
our examination of the documents referred to above and have assumed the current
accuracy and completeness of the information included in the documents referred
to above. We have made no independent investigations or other attempts to verify
the accuracy of any of such information or to determine the existence or
non-existence of any other factual matters; however, we are not aware of any
facts that would lead us to believe that the opinion expressed herein is not
accurate.
Based upon the foregoing, it is our opinion that (i) the Plan Stock that
may be issued and sold by you upon the exercise of (a) stock options granted
under the 1995 Plan, (b) stock options granted or to be granted under the 1996
Plan, (c) stock options granted or to be granted under the Directors Plan and
(d) purchase rights granted or to be granted under the Purchase Plan, when
issued and sold in accordance with the applicable plan and stock options
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or purchase rights granted thereunder, and in the manner referred to in the
relevant Prospectus associated with the Registration Statement, will be legally
issued, fully paid and nonassessable; and (ii) the Outstanding Stock is legally
issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement, the Prospectus constituting a part thereof and any
amendments thereto.
This opinion speaks only as of its date and is intended solely for the your
use as an exhibit to the Registration Statement for the purpose of the above
sale of the Plan Stock and the Outstanding Stock and is not to be relied upon
for any other purpose.
Very truly yours,
FENWICK & WEST LLP
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EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1995 Equity Incentive Plan, the 1996 Equity Incentive
Plan, the 1996 Directors Stock Option Plan and the 1996 Employee Stock Purchase
Plan of Excite, Inc. of our report dated February 23, 1996 (except for Note 9,
as to which the date is April 1, 1996), with respect to the financial statements
of Excite, Inc. included in its Registration Statement (Form SB-2 No. 333-2328)
for the year ended December 31, 1995, filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
Palo Alto, California
June 28, 1996
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