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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-QSB/A
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1996
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from __________ to ___________
Commission file number 0-28064
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)
(415) 943-1200
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Act of 1934
during the preceding 12 months (or for such shorter period that the registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
YES X NO ___
As of October 31, 1996, there were 11,965,089 shares of the Registrant's Common
Stock outstanding.
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The undersigned hereby amends the following items, financial
statements, exhibits or other portions of its Quarterly Report on Form 10-QSB
for the period ended September 30, 1996, as set forth below and in the pages
attached hereto:
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) The following exhibits are filed as part of this
report:
2.01 Agreement and Plan of Reorganization dated as
of August 7, 1996 by and among the
Registrant, Excite Acquisition Corporation,
The McKinley Group, Inc., Isabel Maxwell,
Christine Maxwell, David Hayden, Roger Malina
and Daniel Lynch. (1)
2.02 Agreement of Merger dated as of August 30,
1996 by and between Excite Acquisition
Corporation and The McKinley Group, Inc.
(previously filed)
10.01 Office lease, dated as of August 9, 1996, by
and between the Company and Martin/Campus
Associated, L.P. (previously filed)
10.02 Net Search Program - Premier Provider
Agreement dated as of March 27, 1996 between
The McKinley Group and Netscape
Communications Corporation, as amended March
27, 1996 and January 21, 1997.
11.01 Statement of Earnings Per Share. (previously
filed)
27.01 Financial Data Schedule. (previously filed)
(b) Reports on Form 8-K during the quarter ended
September 30, 1996:
On September 12, 1996 the Company filed a Form 8-K
pursuant to Item 2 of such Form regarding the
acquisition of The McKinley Group, Inc.
__________
(1) Previously filed with the Commission on September 12, 1996, as an
exhibit to the Company's Form 8-K (File No. 333-02328-LA) regarding
the acquisition of The McKinley Group, Inc.
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SIGNATURES
In accordance with the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
EXCITE, INC.
Date February 26, 1997 By: /s/ Robert C. Hood
----------------------------
Robert C. Hood
Executive Vice President, Chief
Administrative Officer and
Chief Financial Officer
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EXHIBIT INDEX
Exhibit
No. Description
2.01 Agreement and Plan of Reorganization dated as
of August 7, 1996 by and among the
Registrant, Excite Acquisition Corporation,
The McKinley Group, Inc., Isabel Maxwell,
Christine Maxwell, David Hayden, Roger Malina
and Daniel Lynch. (1)
2.02 Agreement of Merger dated as of August 30,
1996 by and between Excite Acquisitio
Corporation and The McKinley Group,
(previously filed)
10.01 Office lease, dated as of August 9, 1996, by
and between the Company and Martin/Campus
Associated, L.P. (previously filed)
10.02 Net Search Program - Premier Provider
Agreement dated as of March 27, 1996 between
The McKinley Group and Netscape
Communications Corporation, as amended
27, 1996 and January 21, 1997
11.01 Statement of Earnings Per Share. (previously
filed)
27.01 Financial Data Schedule. (previously filed)
__________
(1) Previously filed with the Commission on September 12, 1996, as an
exhibit to the Company's Form 8-K (File No. 333-02328-LA) regarding
the acquisition of The McKinley Group, Inc.
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EXHIBIT 10.02
NETSCAPE COMMUNICATIONS CORPORATION
NET SEARCH PROGRAM--
PREMIER PROVIDER
OBJECTIVE: To enable users of the Netscape Navigator client software product
("Navigator") to find content on the Internet by providing them with access to
established Internet search and directory services.
TERMS AND CONDITIONS:
1. PREMIER PROVIDER. The entity named on the signature page
hereto is referred to in this agreement ("Agreement") as the "Premier Provider"
for the HTML page ("Page") on the Web site on Netscape Communications
Corporation ("Netscape") accessed by pressing or "clicking" on the Net Search
Button of the Navigator. (Netscape may, in the future, change the name of the
Net Search Button. The Page may also be accessed from other locations on
Netscape's Web site referring to the Net Search service.)
2. PREMIER PERIOD. Netscape will maintain the Premier Graphic
(as defined below) on the Page for the following period ("Premier Period"):
From: April 1, 1996
Until: March 31, 1997
(The parties may, upon mutual written agreement no less than thirty (30) days
prior to the end of the then current Premier Period, extend the term of this
Agreement for an additional six (6) month period upon terms and conditions
agreed to by the parties; provided, however, nothing contained herein shall
obligate either party to agree to extend the term of this Agreement.)
3. EXPOSURE ON PAGE.
a. The Premier Provider will supply Netscape with HTML
and/or GIF files which conform to the specifications in Exhibit A ("Premier
Graphic") which Netscape will place on the Page during the Premier Period.
Premier Provider shall retain all right, title and interest in and to the
Premier Graphic (including the copyright ownership thereof), and Premier
Provider hereby grants Netscape a worldwide license to use, display, perform
reproduce and distribute the Premier Graphic, and such other licenses with
respect to the Premier Graphic necessary to fulfill the intention of this
Agreement. The Premier Graphic shall contain a functional search field and/or
directory tree. The specifications of the Premier Graphic and its placement on
the Page are set forth on Exhibit A hereto. Netscape may, upon notice to
Premier Provider, revise Exhibit A (provided that the Premier Graphics for each
of the participants in this Net Search Program--Premier Provider shall remain
the largest and most prominent search and directory graphics on the Page and
shall remain equivalent in size for each of the Premier Providers) and Premier
Provider shall promptly (and in any event, within no more than one (1) week
following
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receipt of the notice) supply Netscape with a revised Premier Graphic which
conforms to the specifications of the revised Exhibit A.
b. Netscape will produce the Page as set forth on
Exhibit A (which Exhibit Netscape may revise, from time to time). The Premier
Graphic of each of the Premier Providers will be overlapped in a stack (the
"Stack") and will be accessible by the end user by pressing or "clicking" on a
tab for the relevant Premier Provider's service. Initially, Netscape will
rotate the display of each of the Premier Graphics so that each Premier Graphic
will appear on the top of the Stack when the Page is served to an end user with
approximately the same frequency as any other Premier Graphic appears on top of
the Stack. Netscape may, in the future, produce the Page such that the Premier
Graphic last accessed by an end user will be served on the top of the Stack
when that end user is next served the Page. Alternatively, Netscape may, in
the future, produce the Page such that the end user may select which Premier
Graphic the end user would prefer to have served on the top of the Stack, and
Netscape will produce the Page such that the Premier Graphic selected by the
end user is served on top of the Stack. Further, Netscape will produce the
Page such that when an end user presses or "clicks" on hypertext links
("Links") placed by Premier Provider on the Premier Graphic, the end user's
Navigator will access Premier Provider's applicable HTML page located at the
applicable Universal Resource Locator for such page on Premier Provider's Web
site ("Premier URLs").
c. Premier Provider will also supply Netscape with text
describing Premier Provider's search or directory service ("Distinguished
Text"), which shall be no more than fifty (50) words in length, and an HTML or
GIF file which conforms to the specifications in Exhibit A for Premier
Provider's search or directory service ("Distinguished Logo"). (The
Distinguished Logo and Distinguished Text are herein collectively referred to
as the "Distinguished Listing.") During the Premier Period, Netscape will
place Premier Provider's Distinguished Logo in the Distinguished Provider
portion of the Page, and the Distinguished Listing in the Alphabetical Listing
portion of the Page as set forth in Exhibit A. Premier Provider shall retain
all right, title and interest in and to the Distinguished Logo (including the
copyright ownership thereof), and Premier Provider hereby grants Netscape a
worldwide license to use, display, perform, reproduce and distribute the
Distinguished Listing and Distinguished Logo, and such other licenses with
respect to the Distinguished Listing and Distinguished Logo necessary to
fulfill the intention of this Agreement. The specifications of the
Distinguished Listing and Distinguished Logo and their placement on the Page
are set forth on Exhibit A hereto. Netscape may, upon notice to Premier
Provider, (i) change the position of the Distinguished Logo or the
Distinguished Listing on the Page, or (ii) revise Exhibit A and Premier
Provider shall promptly (and in any event, within no more than one (1) week
following receipt of the notice) supply Netscape with a revised Distinguished
Logo and Distinguished Listing which conform to the specifications of the
revised Exhibit A.
d. Netscape will produce the Page such that when an end
user presses or "clicks" on the Distinguished Logo or a hypertext link embedded
in the Distinguished Listing, the end user's Navigator will access
("Distinguished Link") Premier Provider's applicable HTML page located at the
applicable Universal Resource Locator (as supplied by Premier Provider) for
such page on Premier Provider's Web site ("Distinguished URL").
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e. Netscape may in the future, but shall not be
obligated to, design its Web site such that an end user may customize certain
features of the pages of Netscape's Web site served to the end user. If, in
connection with the preceding sentence, Netscape provides a mechanism where an
end user may select a preferred search and directory service ("Preferred
Service") to be served to the end user, Netscape will include Premier Provider
as a selection for the Preferred Service.
f. Netscape will use reasonable commercial efforts to
promptly remedy any material malfunctioning of the tabbing mechanism for the
Premier Graphics, any material malfunctioning of the placement on the top of
the Stack of the Premier Graphic most recently accessed or selected by a
particular end user (if either of such mechanisms is developed by Netscape),
any material failure to include the service of Premier Provider as a selection
for the Preferred Service if a mechanism to select a Preferred Service is
developed by Netscape, any material misplacement of the Premier Graphic,
Distinguished Listing or Distinguished Logo on the Page or any material
malfunctioning of the Links or Distinguished Link under the control of
Netscape, provided Premier Provider will fully cooperate with Netscape to
remedy any such material malfunctioning or misplacement, and provided further
that Netscape shall not incur liability for any failure to remedy such material
malfunctioning or misplacement if such remedy is not within the reasonable
control of Netscape.
4. COMPENSATION.
a. For the benefits provided to Premier Provider for the
initial one (1) year Premier Period, Premier Provider shall pay Netscape a
total of $5,000,000 (the "Payment") as follows:
(1) $1,250,000 within thirty (30) calendar days
after full execution of this Agreement;
(2) $375,000 within fifteen (15) calendar days
after the commencement of the first calendar quarter of the term of the Premier
Period;
(3) $750,000 within fifteen (15) calendar days
after the commencement of the second calendar quarter of the term of the
Premier Period;
(4) $1,125,000 within fifteen (15) calendar days
after the commencement of the third calendar quarter of the term of the Premier
Period;
(5) $1,500,000 within fifteen (15) calendar days
after the commencement of the fourth calendar quarter of the term of the
Premier Period.
b. Any portion of the Payment which has not been paid to
Netscape within the applicable time set forth above shall bear interest at the
lesser of (i) one percent (1%) per month, or (ii) the maximum amount allowed by
law.
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5. ADDITIONAL PREMIER PROVIDER BENEFITS.
a. Netscape will for a period of not less than three (3)
days list Premier Provider once on the HTML page of Netscape's Web site
accessed by pressing or "clicking" on the "What's New" virtual button of the
Navigator.
b. Netscape will provide Premier Provider at no charge
with one (1) "Platinum Ad (Basic Service)" (or its equivalent, in Netscape's
reasonable discretion) during each calendar quarter of the Premier Period
beginning on a date designated by Netscape and ending no later than the end of
the applicable calendar quarter; provided Premier Provider supplies Netscape
with the graphic files and other materials and information within the
timeframes and as set forth in the specifications of the applicable Netscape
advertising program and as reasonably requested by Netscape to produce the
advertisement; and provided, further, that Netscape shall not be required to
provide such Platinum Ad or its equivalent if, in Netscape's reasonable
discretion, such Platinum Ad is not available during the applicable calendar
quarter. Premier Provider and Netscape shall schedule the placement of the
Platinum Ad for the first, second, third and fourth calendar quarters of the
term of the Premier Period no later than March 15, June 15, September 15 and
December 15, 1996, respectively.
c. During the Premier Period, Premier Provider may
purchase additional advertising on Netscape's Web site for advertising that
will run during the Premier Period for the service of Premier Provider at a
discount of twenty percent (20%) off Netscape's then standard rates for such
advertising.
d. Netscape will use reasonable efforts to advise
Premier Provider of new Netscape advertising campaigns prior to announcing such
new campaigns on Netscape's Web site; provided, however, Netscape shall not
incur liability for failure so to advise Premier Provider.
e. Netscape may in the future, but shall not be
obligated to, include a set of bookmarks ("Bookmarks") with the Navigator. If
Netscape includes such a set of Bookmarks with a version of the Navigator first
released during the initial term of the Premier Period, Netscape will use
reasonable efforts, subject to technical, marketing and promotional
considerations, in Netscape's discretion, to include a Bookmark for the service
of Premier Provider in the first release of such Navigator and may, but shall
not be obligated to, include a Bookmark for the service of Premier Provider in
subsequent releases of the Navigator. The placement, presentation,
functionality and other features of the Bookmarks, and the URL of the Bookmark
for the service of Premier Provider, shall be determined by Netscape in its
sole discretion.
6. PREMIER PROVIDER OBLIGATIONS. In addition to the other
obligations set forth herein, Premier Provider will:
a. Display the "Netscape Now" button prominently above
the fold of Premier Provider's home page on its Web site and/or on each page of
Premier Provider's Web site which may be accessed directly from the home page
of Premier Provider's Web site and use best efforts
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to include the following statement (or a statement designated by Netscape and
generally used by Netscape as a successor to the following statement or in
connection with any successor program to Netscape's Netscape Now program) next
to the Netscape Now button: "This site is best viewed with Netscape Navigator
2.0. Download Netscape Now!" (or such higher non-beta version as is then
available), and Premier Provider will produce the page such that when an end
user presses or "clicks" on the Netscape Now button, the end user's Internet
client software will access the applicable HTML page located at a URL supplied
by Netscape. Premier Provider will use reasonable commercial efforts to
promptly remedy any misplacement of the Netscape Now button on its home page or
any malfunctioning of the button, provided Netscape will fully cooperate with
Premier Provider to remedy any such misplacement or malfunctioning, and
provided further that Premier Provider shall not incur liability for any
failure to remedy such misplacement or malfunctioning if such remedy is not
within the reasonable control of Premier Provider.
b. Use at least one (1) Netscape core Web server
software product (currently comprised of Netscape Commerce Server and Netscape
Communications Server) to maintain Premier Provider's Web site.
c. Implement HTML Frames and/or Java or JavaScript (or
subsequent features displayable by the Navigator, within thirty (30) days after
written notice from Netscape of the availability of such features) ("Site
Features") for display with those Internet software clients capable of
displaying the Site Features on (i) the home page of Premier Provider's Web
site, and (ii) at least one (1) HTML page located at each Premier URL (or on an
HTML page located further down the directory tree from the page located at the
Premiere URL; provided Premier Provider will use reasonable efforts to
implement the Site Features as high in such directory tree structure as
possible), and, where appropriate, on all other HTML pages of Premier
Provider's primary Web site; provided Premier Provider shall not be required to
implement the Site Features on pages of any secondary Web site of Premier
Provider that Premier Provider is required to construct to satisfy Premier
Provider's obligations under any third party contract existing as of the date
of this Agreement.
d. Premier Provider will include in the Premier Graphic,
the home page of Premier Provider's Web site, and in each page located at each
Premier URL a "mailto" link which users of Premier Provider's service can use
to direct questions or help requests to Premier Provider. Premier Provider
will use reasonable efforts to reply promptly, but in any event within one (1)
week, to any such question or help request.
7. USAGE REPORTS.
a. Netscape and Premier Provider will each provide the
other, via email to the email address set forth below, with usage reports
("Usage Reports") containing the information and in the format set forth in
Exhibit B hereto. The Usage Reports shall cover a one (1) calendar quarter
time period and shall be delivered within fifteen (15) days following the end
of the applicable quarter. The parties may, by mutual written agreement, alter
the content and format of the Usage Reports.
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b. NETSCAPE AND PREMIER PROVIDER WILL USE REASONABLE
EFFORTS TO ENSURE THE ACCURACY OF THE USAGE REPORTS, BUT NEITHER PARTY WARRANTS
THAT THE USAGE REPORTS WILL CONFORM TO ANY PUBLISHED NUMBERS AT ANY GIVEN TIME.
NEITHER PARTY SHALL BE HELD LIABLE FOR ANY CLAIMS AS THEY RELATE TO SAID USAGE
REPORTS.
8. TERMINATION. Either party may terminate this Agreement if the
other party materially breaches its obligations hereunder and such breach
remains uncured for fifteen (15) days following notice to the breaching party
of the breach or as otherwise provided in Section 9.
9. RIGHT TO REFUSE. Netscape will have the right to review the
contents and format of the Premier Graphic, the Distinguished Logo and the
Distinguished Listing. If Netscape, in its sole discretion, at any time
determines that the Premier Graphic, the Distinguished Logo or Distinguished
Listing contains any material, or presents any material in a manner, that
Netscape deems inappropriate for any reason, Netscape will inform Premier
Provider of the reason Netscape has made such determination and may (i) refuse
to include the Premier Graphic, the Distinguished Logo or the Distinguished
Listing, in the Page, and/or (ii) immediately terminate this Agreement if
Premier Provider has not revised to Netscape's reasonable satisfaction the
Premier Graphic, Distinguished Logo or Distinguished Listing within one (1)
business day of written notice from Netscape. If Netscape, in its sole
discretion, at any time determines that the Premier Provider's Web site
contains any material, or presents any material in a manner, that Netscape
deems inappropriate for any reason, Netscape may immediately terminate this
Agreement upon notice to Premier Provider. Netscape reserves the right to
refuse to include in the Page any Premier Graphic, Distinguished Logo or
Distinguished Listing that does not completely conform to the specifications
set forth in Exhibit A.
10. RESPONSIBILITY. Premier Provider is solely responsible for
any legal liability arising out of or relating to (i) the Premier Graphic, the
Distinguished Logo or the Distinguished Listing, and/or (ii) any material to
which users can link through the Premier Graphic, Distinguished Logo or
Distinguished Listing. Premier Provider represents and warrants that it holds
the necessary rights to permit the use of the Premier Graphic, the
Distinguished Logo, the Distinguished Listing, the Premier URLs, the
Distinguished URL, the Links and the Distinguished Links by Netscape for the
purpose of this Agreement; and that the permitted use, reproduction,
distribution, or transmission of the Premier Graphic, the Distinguished Logo
and Distinguished Listing and any material to which users can link through the
Premier Graphic, Distinguished Logo and Distinguished Listing will not violate
any criminal laws or any rights of any third parties, including, but not
limited to, infringement or misappropriation of any copyright, patent,
trademark, trade secret, music, image, or other proprietary or property right,
false advertising, unfair competition, defamation, invasion of privacy or
rights of celebrity, violation of any antidiscrimination law or regulation, or
any other right of any person or entity. Premier Provider agrees to indemnify
Netscape and to hold Netscape harmless from any and all liability, loss,
damages, claims, or causes of action, including reasonable legal fees and
expenses that may be incurred by Netscape, arising out of or related to Premier
Provider's breach of any of the foregoing representations and warranties.
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11. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE
LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES,
WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE,
AND WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGE. THE LIABILITY OF EITHER PARTY FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER
(EXCEPT FOR DAMAGES OR ALLEGED DAMAGES ARISING UNDER SECTION 10) WHETHER IN
CONTRACT OR TORT OR ANY OTHER LEGAL THEORY IS LIMITED TO AND SHALL NOT EXCEED
THE PAYMENT DUE FROM PREMIER PROVIDER HEREUNDER.
12. ASSIGNMENT. Premier Provider may not assign this Agreement by
operation of law or otherwise, in whole or in part, without Netscape's written
consent. Any attempt to assign this Agreement without such consent will be
null and void.
13. GOVERNING LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of California without regard
to its conflicts of laws principles.
14. NOTICE. Any notice or reports required or permitted to be
given under this Agreement shall be in English and given in writing and shall
be delivered by personal delivery, by nationally recognized express courier, by
facsimile transmission confirmed by telephone, by confirmed email, or by
certified or registered mail, postage prepaid, return receipt requested, and
shall be deemed given upon personal delivery, two (2) days after deposit with
express courier, five (5) days after deposit in the mail, or upon
acknowledgment of receipt of facsimile or email. Notices shall be sent to a
party at its address set forth below or such other address as that party may
specify in writing pursuant to this Section.
15. CONFIDENTIALITY. All disclosures of proprietary and/or
confidential information in connection with this Agreement shall be governed by
the terms of the Mutual Confidential Disclosure Agreement either previously
entered into by the parties, or entered into by the parties concurrently with
this Agreement, a copy of which is attached hereto as Exhibit C. The
information contained in the Usage Reports provided by each party hereunder
shall be deemed the Proprietary Information of the disclosing party.
16. NO AGENCY. The parties hereto are independent contractors and
shall have no power or authority to bind the other party or to assume or create
any obligation or responsibility, express or implied, on behalf of the other
party or in the other party's name. This Agreement shall not be construed to
create or imply any partnership, agency, joint venture, or any other form of
legal association between the parties.
17. ENTIRE AGREEMENT. This Agreement together with Exhibits A
through C hereto are the complete and exclusive agreement between the parties
with respect to the subject matter hereof, superseding any prior agreements and
communications (both written and oral) regarding such subject matter. The
parties acknowledge that, with respect to the participation of Premier Provider
in the Net Search Program during the Premier Period described herein, this
Agreement shall supersede any agreement between Netscape and Premier Provider
regarding Premier
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Provider's participation in any comparable program for any period prior to the
commencement of the Premier Period described herein. This Agreement may only
be modified, or any rights under it waived, by a written document executed by
both parties.
The parties have duly executed this Agreement as of the later of the two (2)
dates set forth below.
PREMIER PROVIDER: NETSCAPE:
NETSCAPE COMMUNICATIONS
The Mckinley Group, Inc. CORPORATION
- ---------------------------------
By: /s/ Isabel Maxwell By: /s/ Jennifer Bailey
------------------------------ ------------------------------
Print Name: Isabel Maxwell Print Name: Jennifer Bailey
---------------------- ----------------------
Title: SVP Corporate Affairs Title: V.P., Customer Marketing
--------------------------- ---------------------------
Date: 3/27/96 Date: 3/24/96
---------------------------- ---------------------------
Premier Provider Address: Netscape Address:
85 Liberty Ship Way, Ste. 201 501 East Middlefield Road
- ------------------------------ ------------------------------
Sausalito, CA 94965 Mountain View, CA 94043
- ------------------------------ ------------------------------
Attention: Isabel Maxwell Attention: Barbara Gore
-------------------- --------------------
Facsimile: 415-331-8547 Facsimile: (415) 528-4120
-------------------- --------------------
Email: [email protected] Email: [email protected]
------------------------ ------------------------
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EXHIBIT A
SPECIFICATIONS OF THE PAGE
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EXHIBIT B
USAGE REPORTS
NETSCAPE AND PREMIER PROVIDER SHALL USE DILIGENT EFFORTS TO (1) DETERMINE THE
CONTENT AND FORMAT OF THE USAGE REPORTS WITHIN FIFTEEN (15) DAYS AFTER THE
COMMENCEMENT OF THE PREMIER PERIOD, AND (2) PRODUCE A REVISED EXHIBIT B WITHIN
SUCH 15 DAY PERIOD WHICH SHALL REPLACE THIS EXHIBIT B.
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EXHIBIT C
MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT
WHEREAS, Netscape Communications Corporation ("Netscape") has
developed unique and proprietary computer programs; and
WHEREAS, _______________________ ("Company") and Netscape wish to
discuss a proposed business relationship between Netscape and Company.
NOW, THEREFORE:
Each party (the "Receiving Party") understands that the other party
(the "Disclosing Party") has disclosed or may disclose information (including,
without limitation, computer programs, code, algorithms, names and expertise of
employees and consultants, know-how, formulas, processes, ideas, inventions
(whether patentable or not), schematics and other technical, business,
financial and product development plans, forecasts, strategies and
information), which to the extent previously, presently, or subsequently
disclosed to the Receiving Party is hereinafter referred to as "Proprietary
Information" of the Disclosing Party. All Proprietary Information disclosed in
tangible form by the Disclosing Party shall be marked "confidential" or
"proprietary" and all Proprietary Information disclosed orally or otherwise in
intangible form by the Disclosing Party shall be designated as confidential or
proprietary at the time of disclosure and shall be reduced to writing and
delivered to the Receiving Party within thirty (30) days following the date of
disclosure.
In consideration of the parties' discussions and any access the
Receiving Party may have to Proprietary Information of the Disclosing Party,
the Receiving Party hereby agrees as follows:
1. The Receiving Party agrees (i) to hold the Disclosing
Party's Proprietary Information in confidence and to take all reasonably
necessary precautions to protect such Proprietary Information (including,
without limitation, all precautions the Receiving Party employs with respect to
its own confidential materials), (ii) not to divulge any such Proprietary
Information or any information derived therefrom to any third person, (iii) not
to make any use whatsoever at any time of such Proprietary Information except
as provided in the Net Search and Net Directory Program (Premier Provider)
Agreement ("Premier Agreement") between Netscape and Company dated as of
_______________, 19__ to which this Agreement is attached as an Exhibit, (iv)
not to remove or export any such Proprietary Information from the country of
the Receiving Party, and (v) not to copy or reverse engineer, reverse compile
or attempt to derive the composition or underlying information of any such
Proprietary Information. The Receiving Party shall limit the use of and access
to the Disclosing Party's Proprietary Information to those of the Receiving
Party's employees who need to know such Proprietary Information for the purpose
of such internal evaluation and shall cause such employees to comply with the
obligations set forth herein. The Receiving Party shall treat the Proprietary
Information with at least the same degree of care and protection as it would
use with respect to its own proprietary information. The foregoing obligations
shall survive for a period of three (3) years from the date of disclosure of
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the Proprietary Information. Without granting any right or license, the
Disclosing Party agrees that the foregoing shall not apply with respect to
information that (i) is in the public domain and is available at the time of
disclosure or which thereafter enters the public domain and is available,
through no improper action or inaction by the Receiving Party or any affiliate,
agent or employee, or (ii) was in the Receiving Party's possession or known by
it prior to receipt from the Disclosing Party, or (iii) was rightfully
disclosed to the Receiving Party by another person without restriction, or (iv)
is independently developed by the Receiving Party without access to such
Proprietary Information, or (v) is required to be disclosed pursuant to any
statutory or regulatory authority, provided the Disclosing Party is given
prompt notice of such requirement and the scope of such disclosure is limited
to the extent possible, or is required to be disclosed by a court order,
provided the Disclosing Party is given prompt notice of such order and provided
the opportunity to contest it.
2. Immediately upon (i) the decision by either party not
to enter into a business relationship as contemplated by paragraph 1, or (ii) a
request by the Disclosing Party at any time, the Receiving Party will turn over
to the Disclosing Party all Proprietary Information of the Disclosing Party and
all documents or media containing any such Proprietary Information and any and
all copies or extracts thereof. The Receiving Party understands that nothing
herein (i) requires the disclosure of any Proprietary Information of the
Disclosing Party, which shall be disclosed, if at all, solely at the option of
the Disclosing Party, or (ii) requires the Disclosing Party to proceed with any
proposed transaction or relationship in connection with which Proprietary
Information may be disclosed.
3. Except to the extent required by law, as set forth in
this Agreement or as otherwise mutually agreed to by the parties, neither party
shall disclose the existence or subject matter of the negotiations or business
relationship contemplated by this Agreement.
4. The Receiving Party acknowledges and agrees that due
to the unique nature of the Disclosing Party's Proprietary Information, there
can be no adequate remedy at law for any breach of its obligations hereunder,
that any such breach may allow the Receiving Party or third parties to unfairly
compete with the Disclosing Party resulting in irreparable harm to the
Disclosing Party, and therefore, that upon any such breach or any threat
thereof, the Disclosing Party shall be entitled to seek appropriate equitable
relief in addition to whatever remedies it might have at law. The Receiving
Party will notify the Disclosing Party in writing immediately upon the
occurrence of any such unauthorized release or other breach. In the event that
any of the provisions of this Agreement shall be held by a court or other
tribunal of competent jurisdiction to be unenforceable, the remaining portions
hereof shall remain in full force and effect.
5. Neither party acquires any intellectual property
rights under this Agreement or any disclosure hereunder, except the limited
right to use such Proprietary Information in accordance with this Agreement.
No warranties of any kind are given with respect to the Proprietary Information
disclosed under this Agreement or any use thereof, except as may be otherwise
agreed to in writing.
2
<PAGE> 13
6. This Agreement together with the Premier Agreement
supersede all prior discussions and writings with respect to the subject matter
hereof and thereof, and constitute the entire agreement between the parties
with respect to the subject matter hereof and thereof. No waiver or
modification of this Agreement will be binding upon either party unless made in
writing and signed by a duly authorized representative of such party and no
failure or delay in enforcing any right will be deemed a waiver.
COMPANY: NETSCAPE:
NETSCAPE COMMUNICATIONS
The Mckinley Group, Inc. CORPORATION
By: /s/ Isabel Maxwell By: /s/ Jennifer Bailey
------------------------------ ------------------------------
Print Name: Isabel Maxwell Print Name: Jennifer Bailey
---------------------- ----------------------
Title: SVP Corporate Affairs Title: V.P. Customer Marketing
--------------------------- ---------------------------
Date: 3/27/96 Date: 3/24//96
---------------------------- ----------------------------
3
<PAGE> 14
NETSCAPE COMMUNICATIONS CORPORATION
AMENDMENT NO. 1 TO
NET SEARCH PROGRAM--
PREMIER PROVIDER
AGREEMENT
This Amendment No. 1 ("Amendment No. 1") to the Net Search Program--Premier
Provider Agreement (the "Agreement") between Premier Provider and Netscape
Communications Corporation ("Netscape") dated as of March ___, 1996 is
effective as of March ___, 1996.
Capitalized terms used herein without definition shall have the meanings
ascribed to such terms in the Agreement. Except as explicitly modified or
amended herein, the terms and provisions of the Agreement are hereby ratified
and affirmed and shall remain in full force and effect.
A. THE FOLLOWING SECTION 2.1 SHALL BE ADDED TO THE AGREEMENT:
2.1 MAKE GOOD. In the event the Page has not received at least
1.5 billion Exposures (as hereinafter defined) during the Premier Period,
Netscape shall, in Netscape's sole discretion, either (a) continue to place the
Premier Graphic on the Page as specified in Subsections 3.a and b beyond the
end of the Premier Period until the Page has received 1.5 billion Exposures
(provided Premier Provider complies with its obligations under Subsections 3.a
and b), or (b) Netscape will refund a prorated portion of the Payment, which
proration shall be based upon the difference between the 1.5 billion Exposure
level and the actual number of Exposures of the Page during the Premier Period
relative to the 1.5 billion Exposure level. The term "Exposure" means the
serving of the Page to a user.
B. THE FOLLOWING SECTION 4.1 SHALL BE ADDED TO THE AGREEMENT:
4.1 CREDIT AGAINST PAYMENT. Netscape and Premier Provider shall
discuss in good faith the participation during of Premier Provider in
advertising, joint marketing and/or distribution programs ("Programs"). If
Netscape and Premier Provider mutually agree, no later than June 1, 1996, upon
the terms and conditions of such Programs, Netscape will offer Premier Provider
a discount of up to thirty percent (30%) off the Payment due under this
Agreement, or a total of $1,500,000, for Premier Provider's participation in
all or a combination, in Netscape's discretion, of the Programs.
C. THE FOLLOWING SECTION 7.C SHALL BE ADDED TO THE AGREEMENT:
c. Netscape may, from time to time, conduct research
surveys related to the demographics and psychographics of users of the Page and
Netscape may, in its discretion, provide all or some of the results of any such
survey to Premier Provider.
<PAGE> 15
D. THE FOLLOWING SECTION 8.1 SHALL BE ADDED TO THE AGREEMENT:
8.1 TERMINATION BY PREMIER PROVIDER. Premier Provider shall have
the one time right upon payment to Netscape of $125,000 (provided Premier
Provider shall have previously paid to Netscape the amounts set forth in
Subsections 4.a(1), (2) and (3)) to terminate this Agreement for the third and
fourth calendar quarters of the term of the Premier Period by providing written
notice to Netscape no less than sixty (60) days prior to the commencement of
the third calendar quarter of the term of the Premier Period, in which event
Premier Provider shall not be required to pay Netscape the amounts set forth in
Subsections 4.a(4) and (5). In the event Premier Provider does not terminate
the Agreement as provided in the preceding sentence, Premier Provider may not
terminate the Agreement for the third and fourth calendar quarters of the term
of the Premier Period, except as otherwise provided in Section 8 (Termination).
The parties have duly executed this Agreement as of the later of the two (2)
dates set forth below.
PREMIER PROVIDER: NETSCAPE:
NETSCAPE COMMUNICATIONS
The Mckinley Group, Inc. CORPORATION
By: /s/ Isabel Maxwell By: /s/ Jennifer Bailey
------------------------------ ------------------------------
Print Name: Isabel Maxwell Print Name: Jennifer Bailey
---------------------- ----------------------
Title: SVP Corporate Affairs Title: V.P. Customer Marketing
--------------------------- ---------------------------
Date: 3/27/96 Date: 3/24/96
---------------------------- ----------------------------
2
<PAGE> 16
AMENDMENT NO. 2 TO
NET SEARCH PROGRAM - PREMIER PROVIDER AGREEMENT
This Amendment No. 2 ("Amendment No. 2") to the Net Search Program - Premier
Provider Agreement (the "Agreement") between The McKinley Group, Inc.
("McKinley") and Netscape Communications Corporation ("Netscape") is effective
this 21 day of January, 1997.
WHEREAS,
A. McKinley and Netscape entered into the Agreement effective March 27,
1996.
B. Subsequent to the execution of the Agreement, McKinley became a
wholly-owned subsidiary of Excite.
C. Excite is now purchasing the assets of the WebCrawler Internet search
and navigation service and desires to substitute WebCrawler in
McKinley's place on Netscape's U.S. English-language Web site,
effective January 22, 1997.
THEREFORE, the parties agree as follows:
1. Section 2.1 of the Agreement is deleted in its entirety.
2. Excite will supply Netscape with a new Premier Graphic linked to
WebCrawler's URL prior to January 20, 1997.
3. Netscape will replace McKinley's Premier Graphic and link to
McKinley's URL with WebCrawler's Premier Graphic and URL effective
January 22, 1997.
4. McKinley retains all other obligations, rights, interest and
responsibilities in the Agreement; provided, however, that in the
event that Excite fails to complete the contemplated purchase and sale
of the WebCrawler assets as planned by March 31, 1997, all parties
hereto agree that this Amendment No. 2 shall be null and void and of
no further effect (with the exception of the deletion of Section 2.1
of the Agreement) and McKinley shall retain all of its rights and
interests in the Agreement.
5. This Amendment No. 2 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.
<PAGE> 17
6. Each of the parties have entered into this Amendment No. 2 as of the
date first set forth above and have caused this Amendment No. 2 to be
executed by its duly authorized representative.
THE MCKINLEY GROUP, INC. NETSCAPE COMMUNICATIONS
CORPORATION
By: /s/ Richard B. Redding By: /s/ Netscape Communications
Corporation
------------------------------------ ------------------------------------
Its: Chief Financial Officer/Secretary Its:
----------------------------------- ------------------------------------
2
