<PAGE> 1
As filed with the Securities and Exchange Commission on July 25, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM S-3
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.)
-----------------------
555 BROADWAY
REDWOOD CITY, CALIFORNIA 94063
(415) 568-6000
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
-----------------------
ROBERT C. HOOD
EXECUTIVE VICE PRESIDENT, CHIEF ADMINISTRATIVE OFFICER
AND CHIEF FINANCIAL OFFICER
EXCITE, INC.
555 BROADWAY
REDWOOD CITY, CALIFORNIA 94063
(415) 568-6000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-----------------------
Copies to:
MARK C. STEVENS, ESQ.
JEFFREY R. VETTER, ESQ.
FENWICK & WEST LLP
TWO PALO ALTO SQUARE
PALO ALTO, CALIFORNIA 94306
-----------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: FROM
TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT UNTIL JUNE
26, 1999 OR UNTIL SUCH EARLIER TIME THAT ALL OF THE SHARES REGISTERED HEREUNDER
EITHER (I) HAVE BEEN SOLD, (II) MAY BE SOLD WITHIN A THREE-MONTH PERIOD UNDER
RULE 144 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR (III) HAVE CEASED TO BE SUBJECT TO CERTAIN CONTRACTUAL
REGISTRATION RIGHTS GRANTED TO INTUIT INC. PURSUANT TO A REGISTRATION RIGHTS
AGREEMENT DATED AS OF JUNE 25, 1997 BETWEEN THE REGISTRANT AND INTUIT INC.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / / _____________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. / /_____________
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. / /
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED(1) SHARE(1) PRICE(1) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, no par value 2,900,000 shares $16.875 $48,937,500 $14,830
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</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee, pursuant to Rule 457(c) under the Securities Act, based on
the average of the high and low prices of the Common Stock on the Nasdaq
National Market on July 22, 1997.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
Subject to Completion, dated July 25, 1997
PROSPECTUS
================================================================================
2,900,000 SHARES
EXCITE, INC.
COMMON STOCK
------------------------
All of the shares of Common Stock of Excite, Inc. (the "Company")
offered hereby are being sold by Intuit Inc. ("Intuit"). The shares of Common
Stock offered hereby were issued to Intuit by the Company on June 25, 1997
pursuant to a Stock Purchase Agreement (the "Stock Purchase Agreement") dated as
of June 11, 1997 between the Company and Intuit. The Company will not receive
any proceeds from the sale of the shares of the Common Stock offered hereby.
Such shares are being offered on a continuous basis pursuant to Rule 415 under
the Securities Act of 1933, as amended (the "Act"), during up to four "permitted
windows" which can occur, subject to certain resale restrictions, during a
period which will commence on the date on which the Registration Statement of
which this Prospectus forms a part becomes effective and which will end on June
26, 1999 or such earlier time that all of the securities offered hereby either
(i) have been sold, (ii) may be sold within a three-month period under Rule 144
under the Act, or (iii) have ceased to be "Intuit Registrable Securities"
pursuant to a Registration Rights Agreement between the Company and Intuit. See
"Plan of Distribution."
The Common Stock of the Company is quoted on the Nasdaq National Market
("NNM") under the symbol "XCIT." On July 24, 1997, the closing price of the
Common Stock on the NNM was $18.00 per share. The shares of Common Stock offered
hereby represent approximately 19.0% of the Company's outstanding Common Stock
(based on shares outstanding at June 30, 1997).
Intuit directly, through agents designated from time to time, or
through broker-dealers or underwriters also to be designated, may sell the
shares of Common Stock offered hereby from time to time on terms to be
determined at the time of sale. To the extent required, the specific shares to
be sold, public offering price, the names of any such agent, broker-dealer, or
underwriter and any applicable commission or discount will be set forth in an
accompanying supplement to this Prospectus (a "Prospectus Supplement"). See
"Selling Shareholder" and "Plan of Distribution." Intuit reserves the sole right
to accept or reject, in whole or in part, any proposed purchase of the shares
offered hereby to be made in the manner set forth above.
The distribution of the Shares by Intuit may be effected from time to
time in one or more transactions in the over-the-counter market, in the Nasdaq
National Market, or in privately negotiated transactions at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices, or at negotiated prices. Intuit and any underwriters, broker-dealers, or
agents that participate in the distribution of the Shares may be deemed to be
"underwriters" within the meaning of Section 2(11) of the Securities Act of
1933, as amended (the "Securities Act"), and any profit on the sale of the
Shares by them and any commissions, discounts, or concessions received by any
such underwriters, broker-dealers, or agents might be deemed to be underwriting
discounts and commissions under the Securities Act. See "Plan of Distribution"
for indemnification arrangements between the Company and Intuit.
------------------------
THE COMMON STOCK OFFERED HEREBY INVOLVES A HIGH DEGREE
OF RISK. SEE "RISK FACTORS" COMMENCING ON PAGE 6.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
PRICE TO THE UNDERWRITING PROCEEDS TO PROCEEDS TO SELLING
PUBLIC (1) DISCOUNT COMPANY SHAREHOLDER(1)
---------- -------- ------- --------------
<S> <C> <C> <C> <C>
PER SHARE........................ see text above none none see text above
TOTAL............................ see text above none none see text above
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(1) THE SHARES OF COMMON STOCK OF THE COMPANY OFFERED HEREBY WILL BE SOLD FROM
TIME TO TIME AT THE THEN PREVAILING MARKET PRICES, AT PRICES RELATING TO
PREVAILING MARKET PRICES OR AT NEGOTIATED PRICES. THE COMPANY WILL PAY ALL
EXPENSES RELATING TO THE REGISTRATION OF THE SHARES OFFERED HEREBY,
ESTIMATED AT $50,000. SEE "PLAN OF DISTRIBUTION."
THE DATE OF THIS PROSPECTUS IS ______________, 1997.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company can be inspected and
copied at the public reference facilities of the Commission located at Room
1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the Commission's regional offices at Seven World Trade Center, 13th Floor, New
York, New York 10048; and Northwestern Atrium Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661-2511. Copies of such material can also be
obtained from the Public Reference Section of the Commission at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. The Commission also maintains a World Wide Web site (located at
http://www.sec.gov) that contains reports, proxy and information statements and
other information regarding the Company. The Company's Common Stock is quoted
for trading on the NNM, and reports, proxy statements and other information
concerning the Company may be inspected at the offices of the National
Association of Securities Dealers, Inc., 9513 Key West Avenue, Rockville,
Maryland 20850.
The Company has filed with the Commission a Registration Statement on
Form S-3 under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to the shares of Common Stock offered hereby. This Prospectus does
not contain all of the information set forth in the Registration Statement and
the exhibits thereto. For further information with respect to the Company and
the Common Stock offered hereby, reference is made to the Registration Statement
and the exhibits filed therewith or incorporated therein by reference.
Statements contained in this Prospectus as to the contents of any contract or
any other document referred to are not necessarily complete, and in each
instance reference is made to the copy of such contract or other document filed
as an exhibit to the Registration Statement or incorporated therein by
reference, each such statement being qualified in all respects by such
reference. A copy of the Registration Statement may be inspected, without
charge, at the offices of the Commission in Washington, D.C. and copies of all
or any part of the Registration Statement may be obtained from the Public
Reference Section of the Commission at Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, upon the payment of the fees prescribed by
the Commission.
No dealer, salesperson or other person has been authorized to give any
information or to make any representation not contained in this Prospectus and,
if given or made, such information or representation must not be relied upon as
having been authorized by the Company or any Selling Stockholder. This
Prospectus does not constitute an offer to sell or a solicitation of an offer to
buy any of the securities offered hereby in any jurisdiction to any person to
whom it is unlawful to make such offer or solicitation in such jurisdiction.
Neither the delivery of this Prospectus nor any sale made hereunder shall, under
any circumstances, create any implication that the information herein is correct
as of any time subsequent to the date hereof or that there has been no change in
the affairs of the Company since such date.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission are incorporated
herein by reference:
(a) The Company's annual report on Form 10-K, as amended by Form 10-K/A,
for the fiscal year ended December 31, 1996.
(b) The Company's quarterly report on Form 10-Q for the three months ended
March 31, 1997.
(c) The Company's current reports on Form 8-K filed with the Commission on
April 2, 1997 (as amended by the Form 8-K/A filed with the Commission
on May 9, 1997), June 19, 1997 and July 9, 1997.
(d) The Company's Proxy Statement for the Annual Meeting of Shareholders
filed with the Commission on April 29, 1997.
(e) All other documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act following the fiscal year ended
December 31, 1996 and prior to the termination of the offering
contemplated hereby.
(f) The description of the Company's Common Stock contained in the
Company's registration statement on Form 8-A filed with the Commission
under the Exchange Act, including any amendments or reports filed for
the purpose of updating such description.
The Company hereby undertakes to provide without charge to each person,
including any beneficial owner, to whom this Prospectus is delivered, upon
written or oral request of such person, a copy of any and all of the information
that has been incorporated by reference in this Prospectus (not including
exhibits to the information that is incorporated by reference unless such
exhibits are specifically incorporated by reference into the information that
this Prospectus incorporates). Requests should be directed to Robert C. Hood,
Executive Vice President, Chief Administrative Officer and Chief Financial
Officer, Excite, Inc., 555 Broadway, Redwood City, California 94063; telephone
number (415) 568-6000.
THE COMPANY
The Company operates the Excite Network, which includes the Excite and
WebCrawler brands, and provides a gateway to the World Wide Web (the "Web") that
organizes, aggregates and delivers information to meet the needs of individual
consumers. Excite, formerly Architext Software, Inc., was formed in June 1994
and, from its inception to September 1995, its operating activities related
primarily to recruiting personnel, raising capital, purchasing operating assets,
providing custom product development and consulting, and developing services.
The Company first launched its Excite search and directory service in October
1995.
The Company has achieved only limited revenues to date, has incurred
significant operating losses since inception and as of March 31, 1997, the
Company had an accumulated deficit of approximately $59.0 million. The Company
has also experienced significant increases in operating losses on an annual and
quarterly basis since inception. Although the Company has experienced
significant revenue growth during 1996 and the first two quarters of 1997, there
can be no assurance that this growth rate will be sustained or that revenues
will continue to grow. There can also be no assurance that any revenue growth
that the Company experiences will be indicative of future operating results. In
addition, the Company has increased, and plans to increase further, its
operating expenses in order to increase its sales and
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marketing efforts, fund greater levels of product development and increase its
general and administrative costs to support the enlarged organization. To the
extent that revenues do not grow at anticipated rates or that increases in such
operating expenses precede or are not subsequently followed by commensurate
increases in revenues, or that the Company is unable to adjust operating expense
levels accordingly, the Company's business, results of operations and financial
condition will be materially and adversely affected. Given the level of planned
expenditures, the Company anticipates that it will continue to incur operating
losses through at least the end of 1997. As a result of the acquisition of the
assets relating to the Web Crawler search and retrieval service and other
acquisitions, operating results will be negatively affected by approximately
$10.1 million in amortization in 1997, and $1.1 million in amortization in 1998,
assuming no additional acquisitions and no significant adjustments to the
economic lives of the underlying intangible assets. The extent of the future
losses will be contingent on the amount of the growth in the Company's
advertising revenues which in turn depends on a variety of factors, including,
without limitation, the factors described under "Risk Factors" and elsewhere in
this Prospectus.
The principal executive offices of the Company are located at 555
Broadway, Redwood City, California 94063, and its telephone number is (415)
568-6000. In this Prospectus, the term "Excite" or the "Company" refers to
Excite, Inc., a California corporation and its subsidiaries, unless the context
otherwise requires.
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RISK FACTORS
In evaluating the Company's business, prospective investors should
carefully consider the following factors in addition to the other information
presented in this Prospectus.
EXTREMELY LIMITED OPERATING HISTORY; ACCUMULATED DEFICIT AND ANTICIPATION OF
CONTINUED LOSSES
The Company was founded in June 1994 and commenced offering Excite
services in October 1995. The McKinley Group, Inc. ("McKinley"), which was
acquired by the Company in August 1996, originally began operations in December
1993 and generated only limited revenues prior to 1996. Accordingly, the Company
has an extremely limited operating history upon which an evaluation of the
Company and its current business can be based. The Company's business must be
considered in light of the risks, expenses and problems frequently encountered
by companies in their early stage of development, particularly companies in new
and rapidly evolving markets such as the Web and Web-based advertising markets.
Specifically, such risks include, without limitation, the failure of the Company
to maintain premier positions on certain high traffic Web access points such as
those maintained by America Online, Inc. ("AOL"), Microsoft and Netscape
Communications Corporation ("Netscape"), the failure of the Company to
anticipate and adapt to a developing market, the rejection of the Company's
services by Web consumers and/or advertisers, the inability of the Company to
maintain and increase the levels of traffic on its network (the "Excite
Network"), development of equal or superior services or products by competitors,
the failure of the market to adopt the Web as an advertising medium, reductions
in market prices for Web-based advertising, the inability of the Company to
effectively integrate the technology and operations of McKinley, AOL's
WebCrawler Web search and retrieval service with the Company acquired in March
1997 (the "WebCrawler Assets"), or any other subsequently acquired businesses or
technologies with its operations, the ability of the Company to enter into
strategic and other content relationships with third parties and the commercial
success of the services offered through such relationships, and the inability to
identify, attract, retain and motivate qualified personnel. There can be no
assurance that the Company will be successful in addressing such risks. The
Company has achieved only limited revenues to date and has incurred significant
operating losses since inception, and as of March 31, 1997, the Company had an
accumulated deficit of approximately $59.0 million. The Company has also
experienced significant increases in operating losses on an annual and quarterly
bases since inception. Although the Company has experienced significant revenue
growth during 1996 and in the first two quarters of 1997, there can be no
assurance that this growth rate will be sustained or that revenues will continue
to grow. There can also be no assurance that any revenue growth that the Company
experiences will be indicative of future operating results. In addition, the
Company has increased, and plans to increase further, its operating expenses in
order to increase its sales and marketing efforts, fund greater levels of
product development and increase its general and administrative costs to support
the enlarged organization. To the extent that revenues do not grow at
anticipated rates or that increases in such operating expenses precede or are
not subsequently followed by commensurate increases in revenues, or that the
Company is unable to adjust operating expense levels accordingly, the Company's
business, results of operations and financial condition will be materially and
adversely affected. Given the level of planned expenditures, the Company
anticipates that it will continue to incur operating losses through at least the
end of 1997. The extent of these losses will be contingent on the amount of
growth in the Company's advertising revenues which in turn depends on the
factors noted above. Although the Company does not anticipate that its operating
loss will continue to increase, there can be no assurance that operating losses
will not increase in the future or that the Company will ever achieve or sustain
profitability.
POTENTIAL FLUCTUATIONS IN QUARTERLY RESULTS; UNPREDICTABILITY OF FUTURE REVENUES
As a result of the Company's extremely limited operating history, the
Company has no meaningful historical financial data upon which to base planned
operating expenses. Accordingly, the Company's
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expense levels are based in part on its expectations as to future advertising
revenues and to a large extent are fixed. There can be no assurance that the
Company will be able to accurately predict the levels of future advertising
revenues, particularly in light of the intense competition for the sale of
Web-based advertisements and the uncertainty as to the viability of the World
Wide Web (the "Web") as an advertising medium, and the failure to do so would
have a materially adverse effect on the Company's business, results of
operations and financial condition. In addition, the Company derives
substantially all of its revenues from the sale of advertising pursuant to
short-term advertising contracts. As a result, quarterly sales and operating
results are entirely dependent on advertising revenues received within the
quarter, which are difficult to forecast, and are also dependent on the
Company's ability to adjust spending in a timely manner to compensate for any
unexpected revenue shortfall. The cancellation or deferral of a small number of
existing advertising contracts or the failure to obtain new advertising
contracts in any quarter could materially and adversely affect the Company's
business, results of operations and financial condition for such quarter.
Furthermore, the Company derives advertising revenue based on the amount of
traffic, or page views, on the Excite Network. Accordingly, any significant
shortfall of traffic on the Excite Network in relation to the Company's
expectations or the expectations of existing or potential advertisers, would
have an immediate material adverse effect on the Company's business, results of
operations and financial condition. In addition, certain of the Company's
short-term advertising contracts require the Company to guarantee a minimum
number of impressions. In the event that these minimum impressions are not met,
the Company could be required to refund a portion of the fees from such
advertisers. If the Company fails to meet this guaranteed number of impressions,
the ability of the Company to sell advertising to new or existing advertisers
could be adversely affected. See "--Reliance on Advertising Revenues."
The Company's operating results have varied on a quarterly basis during
its limited operating history and the Company expects to experience significant
fluctuations in future quarterly operating results. Such fluctuations have been
and may in the future be caused by numerous factors, many of which are outside
the Company's control, including, without limitation, specific economic
conditions relating to the Internet and the Web, usage of the Web, demand for
advertising on the Excite Network as well as demand for Web-based advertising in
general, changes in advertising rates as a result of competition or otherwise,
seasonal trends in advertising sales, the advertising budgeting cycles of
advertisers, incurrence of charges in connection with the Company's distribution
relationships with Netscape, AOL and other Internet service providers ("ISPs")
and online service providers ("OSPs") or other third parties, the ability of the
Company to enter into other strategic and content relationships and the
acceptance of the services offered through such relationships by users of the
Excite Network or other Web consumers, demand for the Company's services,
incurrence of costs relating to acquisitions of businesses or technologies,
introduction or enhancement of services by the Company and its competitors,
market acceptance of new services, delays in the introduction of services or
enhancements by the Company or its competitors, changes in the Company's pricing
policies or those of its competitors, mix of types of advertisements sold, such
as the amount of targeted advertising sold as a percentage of total advertising
sold, capacity constraints and dependencies on computer infrastructure and
general economic conditions. In order to promote and maintain awareness of the
Company's brands, the Company has in the past and may in the future
significantly increase its advertising and/or promotion budgets for a particular
quarter which could materially and adversely affect the Company's business,
results of operations and financial condition for such period. As a strategic
response to a changing competitive environment, the Company may elect from time
to time to make certain other pricing, service or marketing decisions or
acquisitions that could have a material adverse effect on the Company's
business, results of operations and financial condition. As a result, the
Company believes that period-to-period comparisons of its results of operations
will not necessarily be meaningful and should not be relied upon as an
indication of future performance. Due to all of the foregoing factors, it is
likely that in some future quarter or quarters the Company's operating results
will be below the expectations of public market analysts and investors. In
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such event, the price of the Company's Common Stock would be materially and
adversely affected. See "--Volatility of Stock Price."
DEPENDENCE ON NETSCAPE AND AOL
In March 1997, the Company entered into new agreements with Netscape
which commenced in May 1997 whereby the Excite brand is one of four "Premier
Providers" and the Company's WebCrawler brand is one of several "Marquee
Providers" of search and navigation services accessible from Netscape's "Net
Search" page. Under the terms of these new agreements, the Company is obligated
to make minimum aggregate payments of $8.25 million in cash and advertising
services over the one year term of the agreements. If the Company were not able
to enter into replacement agreements with Netscape with respect to its "Premier
Provider" or "Marquee Provider" arrangements at the end of the term, the Excite
Network could lose a significant portion of its traffic, and as a result,
advertising revenues would be materially and adversely affected. In addition, if
any replacement agreements with Netscape are on materially worse terms than
those of the Company's current Premier Provider Agreement or Marquee Provider
Agreement, there would be a material adverse effect on the Company's business,
results of operations and financial condition.
The Company has also entered into a five-year distribution agreement
with AOL pursuant to which a co-branded version of the Excite search and
directory services is designated as the exclusive Web search and retrieval
service for AOL for at least a two year period. Pursuant to this agreement, the
Company and AOL share advertising revenues attributable to the co-branded
service hosted on AOL. After the expiration of this initial two year exclusivity
period, the parties can extend the exclusive arrangement only by mutual
agreement. If the exclusivity period does not extend beyond the initial two year
term, the co-branded service would become the "default" search and directory
service on AOL, however, AOL could enter into a strategic relationship with a
competitor of the Company or offer its own competing services. In such an event,
the amount of the Company's advertising revenues could be materially and
adversely affected. In addition, if the Company fails to satisfy certain
technical, product feature and editorial criteria during the term of the
agreement, if the Company and AOL fail to renew this agreement upon the
expiration of the five year term, or if any renewal is on materially worse terms
than the initial agreement with AOL, there could be a material adverse effect on
the Company's business, results of operations and financial condition. As a
result of its implementation of a flat-rate pricing program, there have been
numerous reports in the press and potential litigation regarding, among other
things, AOL's capacity to handle a large number of subscribers. There can be no
assurance that AOL will not experience a decline in the number of its
subscribers as a result of these reports or as a result of the problems
reported. The Company's operating results could be adversely affected if AOL,
for any reason, were to lose significant market share, experience a significant
decrease in the number of its subscribers, or experience a significant decrease
in the number of its subscribers utilizing AOL for their Web search and
retrieval needs. In addition, any decline in the number of AOL subscribers could
adversely affect the amount of traffic on the Excite Network. See
"--Acquisition Strategy; Integration of Past and Future Acquisitions."
RELIANCE ON ADVERTISING REVENUES
There is a lack of proven business models for companies like Excite
which rely substantially upon the sale of advertisements on the Web. The
Company's current business model, which evolves as the Web develops, is based on
deriving substantially all of its revenues from selling advertising space on its
network as consumers utilize the Company's services for their Web search and
retrieval needs. A majority of the Company's advertising customers purchase
advertisements on a short-term basis. There can be no assurance that current
advertisers will continue or increase the level of, or that potential new
advertisers will purchase, advertisements on the Excite Network. The Company's
ability to generate significant advertising revenues will depend, among other
things, on advertisers' acceptance of the Web
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as an effective and sustainable advertising medium, the development of a large
base of users of the Company's services possessing demographic characteristics
attractive to advertisers and the ability of the Company to develop and update
effective advertising delivery and measurement systems. The Company believes
that establishing and maintaining the Excite and WebCrawler brands is a critical
aspect of developing a large user base and that the importance of brand
recognition will increase as competition increases. In addition, there is
intense competition in the sale of advertising on the Web, resulting in a wide
range of rates quoted and a variety of pricing models offered by different
vendors for a variety of advertising services which makes it difficult to
project future levels of advertising revenues and rates. It is also difficult to
predict which pricing models will be adopted by the industry or advertisers. For
example, advertising rates based on the number of "click throughs" from the
Company's network to the advertiser's pages, instead of rates based solely on
the number of impressions, would materially adversely affect the Company's
revenues. Moreover, "filter" software programs that limit or remove advertising
from a Web user's desktop are available. Widespread adoption of such software by
users could have a material adverse effect upon the viability of advertising on
the Web. Accordingly, there can be no assurance that the Company will be
successful in generating significant future advertising revenues, and a failure
to do so would have a material adverse effect on the Company's business, results
of operations and financial condition. See "--Developing Market; Validation of
the Web as an Effective Advertising Medium," "--Intense Competition" and
"--Technological Change; Dependence on New and Enhanced Services; Risk of
Delays."
INTENSE COMPETITION
The market for Web advertising and Web search and retrieval services is
intensely competitive. The Company believes that the principal competitive
factors in these markets are name recognition, amount of user traffic, pricing,
performance, ease of use and functionality. The Company's primary competitors
are Web search and retrieval companies such as Yahoo!, Inc., Infoseek
Corporation and Lycos, Inc. and specific search and retrieval services and
products offered by other companies, including Digital Equipment Corporation's
Alta Vista, HotWired Venture's and Inktomi's HotBot, and OpenText. The Company
also competes indirectly with Web content broadcasting services, such as The
PointCast Network's PointCast, and with services from other database vendors,
such as Lexis/Nexis, Dialog and other companies that offer information search
and retrieval capabilities with their core database products. In the future, the
Company may encounter competition from ISPs, OSPs, Web site operators, providers
of Web browser software (such as Netscape or Microsoft) and other Internet
services and products that incorporate search and retrieval features into their
offerings, whether through internal development or by acquisition of one or more
of the Company's direct competitors.
In addition, the Company also competes with ISPs, OSPs, Web browsers
and other Web content providers for the sale of advertisements. The Company
believes that the number of companies relying on fees from Web-based advertising
has increased substantially during the past year. Accordingly, the Company may
face increased pricing pressure for the sale of advertisements on its network,
which would have a material adverse effect on the Company's business, results of
operations and financial condition. Companies offering advertising-supported
services on the Web have also begun to compete with other providers of Web
content and services for user traffic and the number of page views on their Web
sites. As a result, many providers of Web services have been entering into
distribution arrangements, co-branding arrangements, content arrangement and
other strategic partnering arrangements with ISPs, OSPs, Web browsers, operators
of high traffic Web sites and other businesses in an attempt to increase traffic
and page views, and thereby making their Web sites more attractive to Web
advertisers. To the extent that direct competitors or other Web site operators
are able to enter into successful strategic relationships, these competitors and
Web sites could experience increases in traffic and page views, which could have
the effect of making these Web sites appear more attractive to advertisers,
which could materially and adversely affect the amount of advertisements sold on
the Company's network and the
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Company's business, results of operations and financial condition would be
materially and adversely affected.
Many of the Company's existing competitors, as well as a number of
potential new competitors, have longer operating histories in the Web market,
greater name recognition, larger customer bases and significantly greater
financial, technical and marketing resources than the Company. Such competitors
may be able to undertake more extensive marketing campaigns, adopt more
aggressive pricing policies and make more attractive offers to potential
employees, distribution partners, advertisers and content providers. Further,
there can be no assurance that the Company's competitors will not develop Web
search and retrieval services that are equal or superior to those of the Company
or that achieve greater market acceptance than the Company's offerings in the
area of name recognition, performance, ease of use and functionality. There can
also be no assurance that ISPs, OSPs, Web browsers and other Web content
providers will not be perceived by advertisers as having more desirable Web
sites for placement of advertisements. In addition, a number of the Company's
current advertising customers and strategic partners also have established
collaborative relationships with certain of the Company's competitors and a
number of the Company's competitors have established collaborative relationships
with ISPs, OSPs and other Web content providers. Accordingly, there can be no
assurance that the Company will be able to retain a customer base of
advertisers, enter into new strategic or other content relationships, maintain
or increase traffic on its network, that competitors will not experience greater
growth in traffic than the Company as a result of such relationships, which
could have the effect of making their Web sites more attractive to advertisers
or that strategic partners will not sever or will elect to renew their
agreements with the Company. There can also be no assurance that the Company
will be able to compete successfully against its current or future competitors
or that competition will not have a material adverse effect on the Company's
business, results of operations and financial condition.
The Web, in general, and the Company, specifically, also must compete
with traditional advertising media such as print, radio and television for a
share of advertisers' total advertising budgets. To the extent that the Web is
not an effective advertising medium, advertisers may be reluctant to devote a
significant portion of their advertising budget to the Web. See "--Reliance on
Advertising Revenues" and "--Developing Market; Validation of the Web as an
Effective Advertising Medium."
ACQUISITION STRATEGY; INTEGRATION OF PAST AND FUTURE ACQUISITIONS
The Company has in the past and may, in the future, acquire businesses,
technologies, services, product lines, content databases, or access to content
databases that are complementary to the Company's business. In August 1997, the
Company completed the acquisition of McKinley and in March 1997, the Company
closed the acquisition of the WebCrawler Assets from AOL (the "Acquisition").
Although the Company believes that its previous acquisitions were in
the best interests of the Company and its shareholders, acquisitions involve a
number of special risks. For example, the assimilation of McKinley's and the
Company's operations required, among other things, the integration of service
offerings, coordination of the research and development and sales and marketing
efforts of the two companies, the assumption by the Company of approximately
$10.0 million in liabilities, the addition of approximately 50 personnel and the
distraction of the Company's management from the day-to-day business of the
Company. The Company could face similar integration issues with respect to the
Acquisition. There can also be no assurance that a given acquisition, if
consummated, would not have a material adverse effect on the Company's business,
results of operations and financial condition.
DEVELOPING MARKET; VALIDATION OF THE WEB AS AN EFFECTIVE ADVERTISING MEDIUM
The market for the Company's services has recently begun to develop, is
rapidly evolving and is characterized by an increasing number of market entrants
who have introduced or developed services and
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products for use on the Web or who seek to derive significant revenues from the
sale of advertisements on the Web. As a result, the Company's mix of services
and advertising packages may undergo substantial changes as the Company reacts
to competitive and other developments in the overall Web market. The Company is
highly dependent upon the increased use of the Web for information, publication,
distribution and commerce. In particular, the Web is an unproven medium for
advertising supported services. Accordingly, the Company's future operating
results will depend substantially upon the increased use of the Web for
information, publication, distribution and commerce and the emergence of the Web
as an effective advertising medium. Many of the Company's advertisers have only
limited experience with the Web as an advertising medium, have not yet devoted a
significant portion of their advertising expenditures to Web-based advertising,
and may not find such advertising to be effective for promoting their products
and services relative to traditional print and broadcast media. For instance,
advertisers of consumer products have not yet engaged in significant advertising
on the Web and may not do so in the future. No standards have been widely
accepted for the measurement of the effectiveness of Web-based advertising, and
there can be no assurance that such standards will develop sufficiently to
support the Web as an effective advertising medium. Moreover, critical issues
concerning the commercial use of the Web (including security, reliability, cost,
ease of use, access, quality of service and acceptance of advertising) remain
unresolved and may impact the growth of Web use or the placement of
advertisements on the Web. If widespread commercial use of the Web does not
develop, or if the Web does not develop as an effective advertising medium, the
Company's business, results of operations and financial condition will be
materially and adversely affected. See "--Reliance on Advertising Revenues,"
"--Risk of Capacity Constraints; Dependence on Computer Infrastructure" and
"--Dependence on the Web Infrastructure."
TECHNOLOGICAL CHANGE; DEPENDENCE ON NEW AND ENHANCED SERVICES; RISK OF DELAYS
The market in which the Company competes is characterized by rapidly
changing technology, evolving industry standards, frequent new service and
product announcements, introductions and enhancements and changing customer
demands. These market characteristics are exacerbated by the emerging nature of
the Web and the apparent need of companies from a multitude of industries to
offer Web-based products and services. Accordingly, the Company's future success
will depend on its ability to adapt to rapidly changing technologies, its
ability to adapt its services to evolving industry standards and its ability to
continually improve the performance, features and reliability of its network in
response to both evolving demands of the marketplace and competitive service and
product offerings. The failure of the Company to adapt to such changes and
evolution would have a materially adverse effect on the Company's business,
results of operations and financial condition.
Because the attractiveness of the Excite Network to advertisers is
based substantially upon the amount of traffic on the Excite Network, broad
acceptance of the Excite Network by consumers is critical to the Company's
future success. The Company's business model contemplates offering a variety of
Web-related services. Some of these services have been recently introduced,
including its Channels-based service, Excite NewsTracker, Excite Pal and Global
Excite services. Failure of the Company to successfully design, develop, test,
introduce and market such new services or the failure of the Company's recently
introduced services to achieve market acceptance could result in reduced traffic
on the Excite Network. Furthermore, there can be no assurance that the Company
will not experience difficulties that could delay or prevent the successful
design, development, testing, introduction or marketing of these services, or
that its new services and enhancements will adequately meet the requirements of
the marketplace and achieve any degree of significant market acceptance.
Furthermore, existing services or new releases by the Company, whether improved
versions of existing services or introductions of new services, may contain
undetected errors that require significant design modifications, resulting in a
loss of consumer confidence and consumer support. Delays in the commencement of
or errors contained in new services and enhancements may result in customer
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dissatisfaction and delay or loss of advertising revenue. If the Company is
unable, for technological or other reasons, to develop and introduce new
services or enhancements in a timely manner in accordance with its business
model or in response to changing market conditions or consumer requirements, or
if the recently introduced services or enhancements contain errors or do not
achieve a significant degree of market acceptance, the Company's business,
results of operations and financial condition would be materially and adversely
affected.
MANAGEMENT OF GROWTH
The rapid execution necessary for the Company to successfully offer
services and implement its business plan requires an effective planning and
management process. The Company's rapid growth has placed, and is expected to
continue to place, a significant strain on the Company's managerial, operational
and financial resources. As of June 30, 1997, the Company had grown to 209
employees from 77 employees at June 30, 1996. The Company expects that the
number of its employees will increase over the next 12 months. In addition, the
Company has recently hired, and expects to continue to hire, a number of new
executive officers. The Company's financial and management controls, reporting
systems and procedures are also very limited. Although the Company has
implemented controls, systems and procedures, it has limited experience with
such controls, systems and procedures. The Company still must improve its
financial and management controls, reporting systems and procedures and expand,
train and manage its work force. Further, the Company is required to manage
multiple relationships with various customers, strategic partners and other
third parties. These requirements will be exacerbated in the event of further
growth in the Company or in the number of its third-party relationships.
Although the Company believes that it has made adequate allowances for the costs
and risks associated with this expansion, there can be no assurance that the
Company's systems, procedures or controls will be adequate to support the
Company's operations or that Company management will be able to achieve the
rapid execution necessary to successfully offer its services and implement its
business plan. The Company's future operating results will also depend on its
ability to expand its sales and marketing organization and expand its support
organization commensurate with the growth of its business and the Web. If the
Company is unable to manage growth effectively, the Company's business, results
of operations and financial condition will be materially and adversely affected.
DEPENDENCE ON THIRD-PARTY RELATIONSHIPS
The Company is currently and will be in the future significantly
dependent on a number of third-party relationships to create traffic and provide
content on the Excite Network and to make it more attractive to advertisers and
consumers. These relationships include arrangements relating to the positioning
of the Excite Network on Web browsers such as those offered by Netscape and
Microsoft and agreements with ISPs and OSPs such as AOL and Microsoft. The
Company is also generally dependent on other Web site operators that provide
links to the Excite Network. Most of these arrangements do not require future
minimum commitments to use the Company's services, to provide access or links to
the Excite Network or to provide content to the Company, are not exclusive and
are short-term or may be terminated at the convenience of the other party.
Moreover, the Company does not have agreements with many Web site operators who
provide links to the Excite Network, and such Web site operators may terminate
such links at any time without notice to the Company. These third party
relationships also include arrangements for providing content on the Excite
Network, such as the Company's relationship with Intuit whereby Intuit will be
the exclusive provider and aggregator of financial content for the Excite
Network, the Company's relationship with Amazon.com, Inc. whereby Amazon.com,
Inc. will purchase advertising on and be the exclusive bookseller for the Excite
Network and with Ticketmaster which permits Excite users to have access to
Ticketmaster event listings. There can be no assurance that such third parties
regard their relationship with the Company as important to their own respective
businesses and operations, that they will not reassess their commitment to the
Excite Network at any time in the future,
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that they will continue to advertise on the Excite Network or cross-promote any
of the Company's brands or that they will not develop their own competitive
services or products, either during their relationship with the Company or after
their relationship with the Company expires. Further, there can be no assurance
that the services of those companies that provide access or links to the Excite
Network will achieve market acceptance or commercial success. There can also be
no assurances that any of the content provided by such third parties will be
favorably received by users of the Excite Network or Web users in general.
Accordingly, there can be no assurance that the Company's existing or future
relationships will result in sustained business partnerships, successful service
offerings, or the generation of significant traffic on the Excite Network or
significant revenues for the Company.
The Company believes that certain of its third-party relationships are
important to its ability to attract traffic and advertisers. The failure of one
or more of the third-party relationships which the Company regards as strategic
to achieve or maintain market acceptance or commercial success or the
termination of one or more of such strategic relationships could significantly
reduce traffic on the Excite Network, which would have a material adverse effect
on the Company's business, results of operations and financial condition. In
addition, the termination of, or the failure of the Company to renew, the
Company's position on a Web browser or its relationship with an ISP or OSP would
significantly reduce traffic on the Company's Web sites which would also have a
material adverse effect on the Company's business, results of operations and
financial condition. See "--Dependence on Netscape and AOL."
RISK OF CAPACITY CONSTRAINTS; DEPENDENCE ON COMPUTER INFRASTRUCTURE
The Company is dependent on its ability to generate a high volume of
traffic to the Excite Network. Accordingly, the performance of the Excite
Network is critical to the Company's reputation, its ability to attract
advertisers and to achieve market acceptance of the network. Any system failure
that causes interruptions in the availability or increases response time of the
Company's services could reduce user satisfaction and traffic to the Excite
Network and, if sustained or repeated, would reduce the attractiveness of the
Excite Network to advertisers and consumers. An increase in the volume of
searches conducted through the Excite Network could strain the capacity of the
software or hardware deployed by the Company, which could lead to slower
response time or system failures. In addition, as the amount of Web pages and
traffic increases, there can be no assurance that the Excite Network will be
able to scale proportionately. The Company is also dependent upon Web browsers,
ISPs, OSPs and other Web site operators, which have experienced significant
outages in the past, for access to its network, and consumers have experienced
difficulties due to system failures unrelated to the Company's systems and
services. Additional difficulties could also materially and adversely affect
consumer and advertiser satisfaction. The Company is also dependent on hardware
suppliers for prompt delivery, installation and service of servers and other
equipment and services used to provide its services. In addition, in order to
improve performance, the Company may have to make substantial investments to
deploy one or more copies of its Web sites in order to mirror its online
resources. To the extent that the capacity restraints described above are not
effectively addressed by the Company, such constraints would have a material
adverse effect on the Company's business, results of operations and financial
condition.
Substantially all of the Company's communications hardware and certain
of its computer hardware operations are located at leased facilities in Redwood
City, California, an area susceptible to earthquakes. The Company has
experienced system failures or outages from time to time in the past, which have
disrupted the operation of the Excite Network. There can be no assurance that a
system failure at these locations would not adversely affect the performance of
the Excite Network. These systems are vulnerable to damage from fire, floods,
earthquakes, power loss, telecommunications failures, break-ins and similar
events. The Company does not presently have a disaster recovery plan. Although
the Company carries property and business interruption insurance with low
coverage limits, its coverage may not be adequate to compensate the Company for
all losses that may occur. Despite the implementation of network security
measures by the Company, its servers are also vulnerable to
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computer viruses, physical or electronic break-ins and similar disruptive
problems. Computer viruses, break-ins or other problems caused by third parties
could lead to interruptions, delays or cessations in service to users of the
Excite Network. The occurrence of any of these risks could have a material
adverse effect on the Company's business, results of operations and financial
condition.
DEPENDENCE ON THE WEB INFRASTRUCTURE
The success of the Excite Network will depend in large part upon the
development of a Web infrastructure, such as a reliable network backbone with
the necessary speed, data capacity and security, or timely development of
complementary products such as high speed modems, for providing reliable Web
access and services. Because global commerce and online exchange of information
on the Web and other similar open wide area networks are new and evolving, it is
difficult to predict with any assurance whether the Web will prove to be a
viable commercial marketplace. The Web has experienced, and is expected to
continue to experience, significant growth in the number of users and amount of
traffic. To the extent that the Web continues to experience increased numbers of
users, frequency of use or increased bandwidth requirements of users, there can
be no assurance that the Web infrastructure will continue to be able to support
the demands placed on it by this continued growth or that the performance or
reliability of the Web will not be adversely affected by this continued growth.
In addition, the Web could lose its viability due to delays in the development
or adoption of new standards and protocols (for example, the next-generation
Internet Protocol) to handle increased levels of activity or due to increased
governmental regulation. There can be no assurance that the infrastructure or
complementary products or services necessary to make the Web a viable commercial
marketplace will be developed, or, if they are developed, that the Web will
become a viable commercial marketplace for services such as those offered by the
Company. If the necessary infrastructure standards or protocols or complementary
products, services or facilities are not developed, or if the Web does not
become a viable commercial marketplace, the Company's business, results of
operations and financial condition will be materially and adversely affected.
Even if such infrastructure, standards or protocols or complementary products,
services or facilities are developed and the Web becomes a viable commercial
marketplace, there can be no assurance that the Company will not be required to
incur substantial expenditures in order to adapt its services to changing Web
technologies, which could have a material adverse effect on the Company's
business, results of operations and financial condition.
GOVERNMENT REGULATION AND LEGAL UNCERTAINTIES
The Company is not currently subject to direct regulation by any
government agency, other than regulations applicable to businesses generally,
and there are currently few laws or regulations directly applicable to access to
or commerce on the Web. However, due to the increasing popularity and use of the
Web, it is possible that a number of laws and regulations may be adopted with
respect to the Web, covering issues such as user privacy, pricing,
characteristics and quality of products and services. For example, although the
Communications Decency Act was held to be unconstitutional, there can be no
assurance that similar legislation will not be enacted in the future and it is
possible that such legislation could expose the Company to substantial
liability. Such legislation could also dampen the growth in use of the Web
generally and decrease the acceptance of the Web as a communications and
commercial medium, and could, thereby, have a material adverse effect on the
Company's business, results of operations and financial condition. Other
nations, including Germany, have taken actions to restrict the free flow of
material deemed to be objectionable on the Web. In addition, several
telecommunications carriers are seeking to have telecommunications over the Web
regulated by the Federal Communications Commission (the "FCC") in the same
manner as other telecommunications services. For example, America's Carriers
Telecommunications Association ("ACTA") has filed a petition with the FCC for
this purpose. In addition, because the growing popularity and use of the Web has
burdened the existing telecommunications infrastructure and many areas with high
Web use have begun to experience interruptions in phone service, local telephone
carriers, such as Pacific Bell, have petitioned the FCC to
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regulate ISPs and OSPs in a manner similar to long distance telephone carriers
and to impose access fees on the ISPs and OSPs. If either of these petitions is
granted, or the relief sought therein is otherwise granted, the costs of
communicating on the Web could increase substantially, potentially slowing the
growth in use of the Web. The adoption of any additional laws or regulations may
decrease the growth of the Web, which could in turn decrease the demand for the
Excite Network and increase the Company's cost of doing business or otherwise
have an adverse effect on the Company's business, results of operations and
financial condition. Moreover, the applicability to the Web of existing laws in
various jurisdictions governing issues such as property ownership, libel and
personal privacy is uncertain and will take years to resolve. Any such new
legislation or regulation or application or interpretation of existing laws
could have a material adverse effect on the Company's business, results of
operations and financial condition.
Due to the global nature of the Web, it is possible that, although
transmissions of the Excite Network originate in the State of California, the
governments of other states and foreign countries might attempt to regulate the
Company's transmissions or prosecute the Company for violations of their laws.
There can be no assurance that violations of local laws will not be alleged or
charged by state or foreign governments, that the Company might not
unintentionally violate such law or that such laws will not be modified, or new
laws enacted, in the future. Any of the foregoing developments could have a
material adverse effect on the Company's business, results of operations and
financial condition.
LIABILITY FOR INFORMATION RETRIEVED FROM THE WEB
Because materials may be downloaded through the services offered by the
Company and be subsequently distributed to others, there is a potential that
claims may be made against the Company for defamation, negligence, copyright or
trademark infringement or other theories based on the nature and content of such
materials. Such types of claims have been brought, and sometimes successfully
pressed, against OSPs and ISPs in the past. Although the Company carries general
liability insurance, the Company's insurance may not cover potential claims of
this type, or may not be adequate to indemnify the Company for all liability
that may be imposed. Any imposition of liability that is not covered by
insurance or is in excess of insurance coverage could have a material adverse
effect on the Company's business, results of operations and financial condition.
VOLATILITY OF STOCK PRICE
The market price of the Company's Common Stock is highly volatile and
is subject to wide fluctuations (for example, during the past six months, the
high and low closing prices of the Common Stock were $21.13 and $7.88,
respectively) in response to quarterly variations in operating results,
announcements of technological innovations or new services by the Company or its
competitors, changes in financial estimates by securities analysts, or other
events or factors. Upon the effectiveness of the Registration Statement of which
this Prospectus is a part there will be a significantly larger number of shares
available for public resale, which could exert downward pressure on the trading
price of the Common Stock. In addition, the stock market has experienced
significant price and volume fluctuations that have particularly affected the
market prices of equity securities of many high technology companies and that
often have been unrelated to the operating performance of such companies. In the
past, following periods of volatility in the market price of a company's
securities, securities class action litigation has often been instituted against
such a company. If brought, such litigation could result in substantial costs
and a diversion of management's attention and resources, which would have a
material adverse effect on the Company's business, results of operations and
financial condition. These broad market fluctuations may adversely affect the
market price of the Company's Common Stock.
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USE OF PROCEEDS
The proceeds from the sale of the shares of Common Stock offered hereby
are solely for the account of Intuit. Accordingly, the Company will not receive
any of the proceeds from the sale of such shares of Common Stock by Intuit.
SELLING SHAREHOLDER
The following table sets forth certain information known to the Company
with respect to the beneficial ownership of the Company's Common Stock as of
June 30, 1997 by Intuit. Intuit acquired beneficial ownership of the shares of
Common Stock offered hereby on June 25, 1997, pursuant to a Stock Purchase
Agreement dated as of June 11, 1997 between the Company and Intuit (the "Stock
Purchase Agreement"). Except as described below, Intuit has not had any
position, office or other material relationship with the Company within the past
three years. The following table assumes that Intuit sells all of the shares
held by it in this offering. The Company is unable to determine the exact number
of shares that will actually be sold.
Certain assignees of Intuit, if any, who acquire shares of Common Stock
of the Company from Intuit and satisfy certain conditions are entitled to the
same registration rights as Intuit. If any such assignee wishes to sell shares
hereunder, this Prospectus will be amended or supplemented to name such assignee
as a selling shareholder.
<TABLE>
<CAPTION>
Shares Beneficially Shares Beneficially
Owned Prior to Offering Owned After Offering
----------------------- --------------------
Shares Being
Name Number Percent Offered Number Percent
- ---- ------ ------- ------------ ------ -------
<S> <C> <C> <C> <C> <C>
Intuit Inc. 2,900,000 19.0% 2,900,000 0 --
</TABLE>
The Company believes Intuit has sole voting and sole investment power
with respect to all shares beneficially owned by it.
On June 25, 1997, the Company sold 2,900,000 shares of its Common Stock
to Intuit pursuant to the Stock Purchase Agreement for an aggregate purchase
price of $39,150,000.00 (the "Intuit Purchase"). As a result of the Intuit
Purchase, the Company believes that Intuit became an affiliate of the Company.
In connection with the Intuit Purchase, Intuit agreed not to acquire more than
25% of the total voting securities of the Company (the "Standstill Percentage")
without the consent of the Company's Board of Directors. In the event that a
third party acquires a number of voting securities of the Company in excess of
the Standstill Percentage, the Standstill Percentage will be increased to the
percentage of the voting securities of the Company held by such third party. The
Company is also obligated to notify Intuit in the event that it enters into or
intends to enter into any bona fide discussions with any third party which will
result in the acquisition of or change in control with respect to the Company (a
"Change in Control Transaction").
Intuit's "standstill" obligations will terminate on the earlier to
occur of (i) December 11, 2000, or (ii) the termination of similar standstill
obligations of AOL to the Company. Intuit's standstill obligations will also
terminate (i) upon the making of a bona fide offer by any third party or group
(a "Third-Party Offer") of an intention to acquire voting securities of the
Company which, if successful, would result in such third party or group owning,
or having the right to acquire beneficial ownership of, more than 20% of the
Company's voting securities or (ii) upon the Company's intention to enter into a
Change in Control Transaction.
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Except as provided below, until December 12, 1998, Intuit may not,
without the prior written consent of the Company, dispose of any of the shares
offered hereby or any other securities of the Company owned by it. The Stock
Purchase Agreement also provides that, from to December 12, 1998 and until June
12, 2000, Intuit may not, on any trading day, without the prior written consent
of the Company, dispose of any Common Stockof the Company or any other
securities of the Company owned by it in an amount in excess of five percent of
the total trading volume for the five consecutive trading days ended on the date
immediately prior to the date of such sale (such trading volume to be determined
without taking into consideration any shares sold by Intuit). The foregoing
restrictions do not apply to any sales of such shares in (i) a private
transaction not effected on the Nasdaq National Market or any other stock
exchange or automated quotation system, or (ii) an underwritten public offering
of such shares. These restrictions on resale will be suspended in the event that
Intuit's "standstill" obligations will be suspended in the event of a Third
Party Offer or if the Company proposes to enter into a Change in Control
Transaction.
In connection with the Intuit Purchase, Intuit and the Company entered
into a Registration Rights Agreement dated as of June 25, 1997 (the
"Registration Rights Agreement") which provides, among other things, certain
registration rights with respect to the shares offered hereby and any shares of
the Company's Common Stock issued pursuant to the Right of First Refusal
Agreement described below.
The Company filed the registration statement of which this Prospectus
forms a part (the "Shelf Registration Statement") pursuant to the Registration
Rights Agreement. The Company is required to maintain the effectiveness of the
Shelf Registration Statement for a two year period (the "Initial Effectiveness
Period"). If, after the Initial Effectiveness Period, Intuit continues to hold
any shares of Common Stock of the Company to which the Shelf Registration
Statement relates, then the Company is required to file an additional Shelf
Registration Statement (the "Subsequent Shelf Registration Statement") and
maintain the effectiveness of the Subsequent Shelf Registration Statement for a
one year period (the "Subsequent Effectiveness Period").
If, after the Subsequent Effectiveness Period, any registration rights
with respect to any securities of the Company which were granted subsequent to
June 25, 1997 are still in effect, and Intuit still holds any of the shares
offered hereby or any securities issued pursuant to the Right of First Refusal
Agreement described below, the Company will be obligated to file an additional
Shelf Registration Statement (an "Additional Shelf Registration Statement") and
maintain the effectiveness of such Additional Shelf Registration Statement for
up to two years (the "Additional Effectiveness Period").
If securities of the Company having an aggregate purchase price in
excess of $250,000 are sold to Intuit pursuant to the Right of First Refusal
Agreement described below, during the Initial Effectiveness Period, the
Subsequent Effectiveness Period or the Additional Effectiveness Period, the
Company will be required to file an additional Shelf Registration Statement with
respect to such securities. The Company will be required to maintain the
effectiveness of such Shelf Registration Statement until no later than the
expiration of the Initial Effectiveness Period, the Subsequent Effectiveness
Period of the Additional Effectiveness Period, as applicable.
The shares of Common Stock covered by the Shelf Registration Statement
may be sold by Intuit or by its permitted transferees during one of four periods
of 30 consecutive calendar days each, which periods shall be separated by
intervals of at least 90 days and shall occur no more than four times during the
Initial Effectiveness Period and two times during the Additional Effectiveness
Period. See "Plan of Distribution."
Subject to certain limitations, Intuit may also require the Company to
file a registration statement under the Securities Act with respect to all or a
portion of the securities of the Company owned by it (a "Demand Registration").
Intuit may request only two such Demand Registrations. Intuit may request
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<PAGE> 18
that the shares registered in a Demand Registration be offered by means of an
underwritten offering. In any such underwritten offering of the Company's
securities, the underwriters may reduce the number of shares to be included in
the Demand Registration, but shall not limit the shares to be included by Intuit
in such Demand Registration unless all other securities proposed to be sold by
persons or entities other than Intuit are first entirely excluded.
If the Company proposes to register any of its securities under the
Act, it must give prior notice to Intuit and permit Intuit, subject to certain
limitations, to include in such registration all or a portion of the securities
of the Company owned by it (a "Piggyback Registration"). If such registrations
relate to an underwritten public offering, the underwriters (if any) may reduce
the number of shares to be included in a Piggyback Registration, provided that
each of Intuit, AOL and certain other investors of the Company shall be subject
to such reduction only on a pro rata basis.
The Company is required to bear all expenses (other than underwriting
discounts and commissions) in connection with the Registration Rights Agreement.
The Registration Rights Agreement will terminate (a) if all of the
shares offered hereby have been registered and sold pursuant to registrations
effected pursuant to the Registration Rights Agreement or (b) at such time as
all of the shares offered hereby may be sold within a three month period under
Rule 144 promulgated under the Securities Act.
Pursuant to a Right of First Refusal Agreement dated as of June 25,
1997 between the Company and Intuit, which was entered into in connection with
the Intuit Purchase, Intuit was granted a right of first refusal to participate
in certain issuances of Company's securities. So long as Intuit holds at least
ten percent of the Company's outstanding Common Stock (including shares issuable
upon conversion of outstanding shares of preferred stock of the Company), in the
event that the Company proposes to issue any securities in a financing
transaction solely for cash consideration, Intuit is permitted to purchase all
or a portion of Intuit's "Pro Rata Share" (defined below) of such securities,
such that Intuit's Pro Rata Share equals up to nineteen percent immediately
after such issuance. The term "Pro Rata Share" means the ratio of (a) the number
of shares of the Company's Common Stock (on an as-converted to Common Stock
basis) owned by Intuit, to (b) a number of shares of Common Stock of the Company
equal to the sum of (i) the total number of shares of Common Stock of the
Company then outstanding plus (ii) the total number of shares of Common Stock of
the Company into which all then-outstanding shares of voting preferred stock of
the Company are then convertible.
In connection with the Intuit Purchase, the Company and Intuit entered
into a Nomination and Observer Agreement dated as of June 25, 1997, which
provides that, for so long as Intuit owns at least 10% of the Common Stock of
the Company (on an as-converted to Common Stock basis), it is entitled to
nominate one candidate (the "Intuit Designee") for election to the Company's
Board of Directors in connection with any shareholder solicitation or action
relating to the election of directors. In the event that Intuit wishes to
appoint an Intuit Designee to the Company's Board of Directors other than in
connection with a shareholder solicitation or an action relating to the election
of directors, the Company is obligated to appoint such Intuit Designee to its
Board of Directors. The Company is generally obligated to use its best efforts
to cause to be voted in favor of an Intuit Designee all shares for which the
Company's management or the Board of Directors holds proxies or otherwise are
entitled to vote, and to cause the Board of Directors to unanimously recommend
the Intuit Designee for election. If an Intuit Designee is not a member of the
Board of Directors, Intuit has certain rights to have a representative attend
all meetings and receive all communications of the Company directed to the Board
of Directors or the audit committee thereof in a non-voting observer capacity.
In connection with the Intuit Purchase the Company and Intuit entered
into a Joint Activities Agreement (the "Agreement"), dated as of June 25, 1997,
pursuant to which the Company and Intuit will
17
<PAGE> 19
create a new online financial channel. This channel will offer content and
services designed to help consumers organize and manage their finances, and will
feature financial news, stock quotes and transactional services. It is
anticipated that this new channel will be introduced during the summer of 1997.
The channel will be distributed throughout the Excite Network, as well as
through Intuit's Quicken Financial Network.
Under the Agreement, Intuit will become the exclusive provider and
aggregator of financial content on all the Company's services, and the Company
will become the exclusive search and navigation service featured on the U.S.
versions of Intuit's Quicken, QuickBooks and TurboTax products. The Company and
Intuit expect that revenue, if any, will be generated from a combination of
advertising and fees for enabling transactions for financial products and
services.
18
<PAGE> 20
PLAN OF DISTRIBUTION
In connection with the Stock Purchase Agreement, Intuit entered into a
Registration Rights Agreement with the Company. The Registration Statement of
which this Prospectus forms a part has been filed pursuant to the Registration
Rights Agreement. To the Company's knowledge, Intuit has not entered into any
agreement, arrangement or understanding with any particular broker or market
maker with respect to the shares offered hereby, nor does the Company know the
identity of the brokers or market makers that will participate in the offering.
The shares of Common Stock covered hereby may be offered and sold from
time to time by Intuit or by its permitted transferees during one of four
"Permitted Windows." A "Permitted Window" is a period of 30 consecutive calendar
days commencing upon receipt by Intuit of Excite's written confirmation to
Intuit in response to Intuit's written notice to the Company of its present
intention to sell under this Prospectus (a "Notice of Resale") that this
Prospectus may be used for resales. There must be a 90 day interval between any
two Permitted Windows. Under certain circumstances, the Company has the ability
to suspend the use of this Prospectus during any Permitted Window. Intuit will
act independently of the Company in making decisions with respect to the timing,
manner and size of each sale. Such sales may be made over the NNM or otherwise,
at then prevailing market prices, at prices related to prevailing market prices
or at negotiated prices. The shares may be sold by one or more of the following:
(a) a block trade in which the broker-dealer engaged by Intuit will attempt to
sell the shares as agent but may position and resell a portion of the block as
principal to facilitate the transaction; (b) purchases by the broker-dealer as
principal and resale by such broker or dealer for its account pursuant to this
Prospectus; (c) ordinary brokerage transactions and transactions in which the
broker solicits purchasers; (d) through agents; or (e) directly to one or more
purchasers. In addition, any securities covered by this Prospectus which qualify
for sale pursuant to Rule 144 may be sold under Rule 144 rather than pursuant to
this Prospectus. The Company has been advised by Intuit that they have not, as
of the date hereof, entered into any arrangement with a broker-dealer for the
sale of shares through a block trade, special offering, or secondary
distribution of a purchase by a broker-dealer. In effecting sales,
broker-dealers engaged by Intuit may arrange for other broker-dealers to
participate. Broker-dealers will receive commissions or discounts from Intuit in
amounts to be negotiated immediately prior to the sale.
In connection with distributions of the shares or otherwise, Intuit may
enter into hedging transactions with broker-dealers. In connection with such
transactions, broker-dealers may engage in short sales of the shares registered
hereunder in the course of hedging the positions they assume with Intuit. Intuit
may also sell shares short and redeliver the shares to close out such short
positions. Intuit may also enter into option or other transactions with
broker-dealers which require the delivery to the broker-dealer of the shares
registered hereunder, which the broker-dealer may resell or otherwise transfer
pursuant to this Prospectus. Intuit may also loan or pledge the shares
registered hereunder to a broker-dealer and the broker-dealer may sell the
shares so loaned or upon a default the broker-dealer may effect sales of the
pledged shares pursuant to this Prospectus.
Underwriters, broker-dealers or agents may receive compensation in the
form of commissions, discounts or concessions from Intuit in amounts to be
negotiated in connection with the sale. Such underwriters, broker-dealers or
agents and any other participating broker-dealers may be deemed to be
"underwriters" within the meaning of the Securities Act, in connection with such
sales and any such commission, discount or concession may be deemed to be
underwriting discounts or commissions under the Securities Act.
All fees and expenses incurred in connection with the preparation and
filing of the Registration Statement of which this Prospectus is a part and in
connection with each Permitted Window (excluding, in certain circumstances, fees
and expenses in connection with the commencement of a Permitted Window if the
request to commence the Permitted Window is subsequently withdrawn by Intuit)
will be
19
<PAGE> 21
borne by the Company. Commissions and discounts, if any, attributable to the
sales of the shares will be borne by Intuit. Intuit may agree to indemnify any
underwriter, broker-dealer or agent that participates in transactions involving
sales of the shares against certain liabilities, including liabilities arising
under the Securities Act. Under the Registration Rights Agreement, the Company
and Intuit have agreed to indemnify each other and certain other persons against
certain liabilities in connection with the offering of the shares, including
liabilities arising under the Securities Act.
Intuit has advised the Company that, during such time as they may be
engaged in a distribution of the shares of Common Stock included herein, they
will comply with the applicable provisions under Regulation M under the
Securities Exchange Act of 1934, as amended ("Regulation M") and, in connection
therewith, Intuit has agreed not to engage in any stabilization activity in
connection with any securities of the Company, to furnish copies of this
Prospectus to each broker-dealer through which the shares of Common Stock
included herein may be offered, and not to bid for or purchase any securities of
the Company or attempt to induce any person to purchase any securities of the
Company except as permitted under Regulation M. Intuit has also agreed to inform
the Company and broker-dealers through whom sales may be made hereunder when the
distribution of the shares is completed.
Rules 102 and 103 under Regulation M prohibit participants in a
distribution from bidding for or purchasing for an account in which the
participant has a beneficial interest, any of the securities that are the
subject of the distribution. Rule 104 under Regulation M governs bids and
purchases made to stabilize the price of a security in connection with a
distribution of the security.
The registration statement of which this Prospectus is a part will
terminate on June 25, 1999, or such earlier time that all of the shares
registered under the registration statement of which this Prospectus forms a
part either (i) have been sold, (ii) may be sold within a three-month period
under Rule 144, or (iii) have ceased to be "Intuit Registrable Securities"
pursuant to the terms of the Registration Rights Agreement. There can be no
assurance that Intuit will sell any or all of the shares of Common Stock offered
hereby. Excite will be obligated to file a Subsegment Shelf Registration
Statement which will remain effective throughout the Subsequent Effectiveness
Period and may be required to file an Additional Shelf Registration Statement
which will remain effective for the Additional Effectiveness Period. See
"Selling Shareholders." It is currently anticipated that the Plan of
Distribution under the Subsequent Shelf Registration Statement and the
Additional Shelf Registration Statement will be substantially similar as
described herein.
Upon the occurrence of any of the following events, this Prospectus
will be amended to include additional disclosure before offers and sales of the
securities in question are made: (a) to the extent the securities are sold at a
fixed price or at a price other than the prevailing market price, such price
would be set forth in the Prospectus, (b) if the securities are sold in block
transactions and the purchaser acting in the capacity of an underwriter wishes
to resell, such arrangements would be described in the Prospectus, (c) if Intuit
sells to a broker-dealer acting in the capacity as an underwriter, such
broker-dealer will be identified in the Prospectus and (d) if the compensation
paid to broker-dealers is other than usual and customary discounts, concessions
or commissions, disclosure of the terms of the transaction would be included in
the Prospectus.
LEGAL MATTERS
The validity of the issuance of the shares of Common Stock offered
hereby will be passed upon for the Company by Fenwick & West LLP, Two Palo Alto
Square, Palo Alto, California 94306. Members of the firm of Fenwick & West LLP
own an aggregate of 17,506 shares of Common Stock of the Company.
20
<PAGE> 22
EXPERTS
The consolidated financial statements of Excite, Inc. incorporated by
reference in the annual report (Form 10-K, as amended by Form 10-K/A) of Excite,
Inc. for the year ended December 31, 1996, have been audited by Ernst & Young
LLP, independent auditors, as set forth in their report thereon included therein
and incorporated herein by reference. The report as to the years 1995 and 1994
is based in part on the report of Price Waterhouse LLP, independent accountants.
The financial statements referred to above are incorporated herein by reference
in reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
The financial statements of The McKinley Group, Inc. for the years
ended December 31, 1995 and 1994, not separately presented in Excite's Annual
Report on Form 10-K, as amended by Form 10-K/A, have been audited by Price
Waterhouse LLP, independent accountants, whose report thereon appears therein.
Such financial statements, to the extent they have been included in the
consolidated financial statements of Excite, Inc., have been so included in
reliance on their report given on the authority of said firm as experts in
auditing and accounting.
21
<PAGE> 23
================================================================================
EXCITE, INC.
2,900,000 Shares of
Common Stock
--------------------
PROSPECTUS
--------------------
================================================================================
<PAGE> 24
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The aggregate estimated expenses to be paid by the Registrant in
connection with this offering are as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee............$14,830
Nasdaq National Market filing fee.............................. 5,100
Accounting fees and expenses................................... 12,000
Legal fees and expenses........................................ 12,000
Miscellaneous.................................................. 6,070
Total.....................................................$50,000
=======
</TABLE>
ITEM 15. 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 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
II-1
<PAGE> 25
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 has directors and officers liability insurance with a
per claim and annual aggregate coverage limit of $5,000,000.
II-2
<PAGE> 26
ITEM 16. EXHIBITS.
The following exhibits are filed herewith or incorporated by reference
herein:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT TITLE
------- -------------
<S> <C>
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.(1)
4.01 -- Form of Specimen Certificate for Registrant's Common Stock.(2)
4.02 -- Restated and Amended Investors' Rights Agreement.(2)
4.03 -- Amendment to Restated and Amended Investors' Rights Agreement dated as of August 1,
1996.(3)
4.04 -- Amendment to Restated and Amended Investors' Rights Agreement dated as of November 25,
1996.(4)
4.05 -- Registration Rights Agreement dated as of November 25, 1996 by and among the Registrant,
America Online, Inc. and AOL Ventures, Inc.(3)
4.06 -- Voting Agreement dated as of November 25, 1996 by and among the Registrant and certain
shareholders.(4)
4.07 -- Letter Agreement dated as of November 25, 1996 by and among certain shareholders of the
Registrant.(4)
4.08 -- Nomination and Observer Rights Agreement dated as of June 25, 1997 between the
Registrant and Intuit Inc.
4.09 -- Registration Rights Agreement dated as of June 25, 1997 between the Registrant and
Intuit Inc.
4.10 -- Right of First Refusal Agreement dated as of June 25, 1997 between the Registrant and
Intuit Inc.
4.11 -- Amendment to Restated and Amended Investors' Rights Agreement dated as of June 25, 1997
among the Registrant, Institutional Venture Partners VI, Institutional Venture
Management VI, IVP Founders Fund I, L.P., Kleiner Perkins Caufield & Byers VII, KPCB VII
Founders Fund, KPCB Information Sciences Zaibatsu Fund II and Intuit Inc.
4.12 -- Stock Purchase Agreement dated as of June 11, 1997 between the Registrant and Intuit
Inc.
5.01 -- Opinion of Fenwick & West LLP regarding the legality of the securities being issued.
23.01 -- Consent of Ernst & Young LLP, Independent Auditors.
23.02 -- Consent of Price Waterhouse LLP, Independent Accountants.
23.03 -- Consent of Fenwick & West LLP (included in Exhibit 5.01).
24.01 -- Power of Attorney (see page II-6).
</TABLE>
- ----------------
(1) Previously filed with the Commission on September 12, 1996, as an exhibit
to the Registrant's Form 8-K (File No. 0-28064) regarding the acquisition
of The McKinley Group, Inc.
(2) Previously filed with the Commission on March 29, 1996, as an exhibit to
Amendment No. 1 to the Registrant's Registration Statement on Form SB-2
(File No. 333-2328-LA)
(3) Previously filed with the Commission on March 3, 1997, as an exhibit to
the Registrant's Registration Statement on Form S-1 (File No. 333-22669).
(4) Previously filed with the Commission on March 31, 1997, as an exhibit to
the Registrant's Form 10-K (File No. 0-28064).
II-3
<PAGE> 27
ITEM 17. 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 of 1933; (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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration statement;
(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; (2) that for
the purpose of determining any liability under the Securities Act of 1933, 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 of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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 described under Item 15 above, 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. 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.
II-4
<PAGE> 28
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all for the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Redwood City, State of California, on the 24th day of
July, 1997.
EXCITE INC.
By: /s/ Robert C. Hood
---------------------------------------
Robert C. Hood
Executive Vice President, Chief
Administrative Officer and Chief Financial
Officer
II-5
<PAGE> 29
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS that each individual whose signature appears
below constitutes and appoints Robert C. Hood and Richard B. Redding, and each
of them, his attorneys-in-fact and agents, each with the 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, and to sign any registration statement for the same offering covered
by this Registration Statement that is to be effective upon filing pursuant to
Rule 462(b) promulgated under the Securities Act of 1933, and all post-effective
amendments thereto, 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, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- -----
<S> <C> <C>
PRINCIPAL EXECUTIVE OFFICER:
/s/ George Bell President, Chief Executive July 24, 1997
- --------------------------------- Officer and Director
George Bell
PRINCIPAL FINANCIAL AND
ACCOUNTING OFFICER:
/s/ Robert C. Hood Executive Vice President, Chief July 24, 1997
- --------------------------------- Administrative Officer and
Robert C. Hood Chief Financial Officer
ADDITIONAL DIRECTORS:
/s/ Joseph R. Kraus Senior Vice President and July 24, 1997
- --------------------------------- Director
Joseph R. Kraus
/s/ Vinod Khosla Director July 24, 1997
- ---------------------------------
Vinod Khosla
/s/ Donn Davis Director July 24, 1997
- ---------------------------------
Donn Davis
/s/ Geoffrey Y. Yang Director July 24, 1997
- ---------------------------------
Geoffrey Y. Yang
Director
- ---------------------------------
Stephen M. Case
</TABLE>
II-6
<PAGE> 30
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER EXHIBIT INDEX PAGE
------- ------------- -------------
<S> <C> <C>
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.(1)
4.01 -- Form of Specimen Certificate for Registrant's Common Stock.(2)
4.02 -- Restated and Amended Investors' Rights Agreement.(2)
4.03 -- Amendment to Restated and Amended Investors' Rights Agreement dated as of August 1,
1996.(3)
4.04 -- Amendment to Restated and Amended Investors' Rights Agreement dated as of November 25,
1996.(4)
4.05 -- Registration Rights Agreement dated as of November 25, 1996 by and among the Registrant,
America Online, Inc. and AOL Ventures, Inc.(3)
4.06 -- Voting Agreement dated as of November 25, 1996 by and among the Registrant and certain
shareholders.(4)
4.07 -- Letter Agreement dated as of November 25, 1996 by and among certain shareholders of the
Registrant.(4)
4.08 -- Nomination and Observer Rights Agreement dated as of June 25, 1997 between the
Registrant and Intuit Inc.
4.09 -- Registration Rights Agreement dated as of June 25, 1997 between the Registrant and
Intuit Inc.
4.10 -- Right of First Refusal Agreement dated as of June 25, 1997 between the Registrant and
Intuit Inc.
4.11 -- Amendment to Restated and Amended Investors' Rights Agreement dated as of June 25, 1997
among the Registrant, Institutional Venture Partners VI, Institutional Venture
Management VI, IVP Founders Fund I, L.P., Kleiner Perkins Caufield & Byers VII, KPCB VII
Founders Fund, KPCB Information Sciences Zaibatsu Fund II and Intuit Inc.
4.12 -- Stock Purchase Agreement dated as of June 11, 1997 between the Registrant and Intuit
Inc.
5.01 -- Opinion of Fenwick & West LLP regarding the legality of the securities being issued.
23.01 -- Consent of Ernst & Young LLP, Independent Auditors.
23.02 -- Consent of Price Waterhouse LLP, Independent Accountants.
23.03 -- Consent of Fenwick & West LLP (included in Exhibit 5.01).
24.01 -- Power of Attorney (see page II-6).
</TABLE>
- ----------------
(1) Previously filed with the Commission on September 12, 1996, as an exhibit
to the Registrant's Form 8-K (File No. 0-28064) regarding the acquisition
of The McKinley Group, Inc.
(2) Previously filed with the Commission on March 29, 1996, as an exhibit to
Amendment No. 1 to the Registrant's Registration Statement on Form SB-2
(File No. 333-2328-LA)
(3) Previously filed with the Commission on March 3, 1997, as an exhibit to
the Registrant's Registration Statement on Form S-1 (File No. 333-22669).
(4) Previously filed with the Commission on March 31, 1997, as an exhibit to
the Registrant's Form 10-K (File No. 0-28064).
II-7
<PAGE> 1
EXHIBIT 4.08
NOMINATION AND OBSERVER AGREEMENT
THIS NOMINATION AND OBSERVER AGREEMENT is entered into as of June 25,
1997, by and between Excite, Inc., a California corporation (the "Company"), and
Intuit Inc., a Delaware corporation ("Intuit").
RECITALS
WHEREAS, Intuit acquired 2,900,000 shares of Common Stock of the
Company (the "Purchased Shares") pursuant to a Stock Purchase Agreement by and
between the Company and Intuit, dated June 11, 1997 (the "Stock Purchase
Agreement").
WHEREAS, as an inducement for Intuit to enter into the Stock Purchase
Agreement, the Company agreed to grant the director nomination and Board
observer rights to Intuit as contained herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the Company and Intuit agree as follows:
SECTION 1
DIRECTOR NOMINATION RIGHTS
1.1 Designee. For so long as Intuit continues to own at least ten
percent (10%) of the outstanding Common Stock of the Company (including shares
of Common Stock issuable upon conversion of outstanding shares of Preferred
Stock), the Company shall provide Intuit thirty (30) days prior written notice
of any shareholder solicitation or action relating to the election of directors.
After receipt of such notice, Intuit may, by written notice sent to the Company
within ten (10) days of receipt of such notice, request that the Company
nominate, and the Company shall nominate, for election to the Company's Board of
Directors (the "Board of Directors"), in connection with such shareholder
solicitation or action, one candidate designated by Intuit, who shall be
reasonably acceptable to the Company (the "Intuit Designee"). In the event that
Intuit shall desire to appoint an Intuit Designee otherwise than in connection
with a shareholder solicitation or action relating to the election of directors,
then as soon as practicable upon written notice from Intuit, the Company shall
appoint an Intuit Designee to the Board of Directors.
1.2 Affiliates. For purposes of this Agreement, all shares held by an
affiliate (as defined in Rule 405 promulgated under the Securities Act of 1933,
as amended) of Intuit, will be deemed to be owned by Intuit.
1.3 Voting of Management Shares. The Company shall use its best efforts
(i) to cause to be voted the shares for which the Company's management or the
Board of Directors holds proxies or is otherwise entitled to vote in favor of
the election of the Intuit Designee nominated
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pursuant to this Agreement; and (ii) to cause the Board of Directors to
unanimously recommend to its shareholders to vote in favor of the Intuit
Designee.
1.4 Vacancies. In the event that any Intuit Designee shall cease to
serve as a director of the Company for any reason, the vacancy resulting
therefrom shall be filled by another Intuit Designee.
1.5 Equal Treatment. The Company shall provide the same compensation
and rights and benefits of indemnity to the Intuit Designee as are provided to
other non-employee directors.
SECTION 2
OBSERVER RIGHTS
2.1. Observer Rights. For so long as Intuit continues to own at least
ten percent (10%) of the outstanding Common Stock of the Company (including
shares of Common Stock issuable upon conversion of outstanding shares of
Preferred Stock) and an Intuit Designee is not a member of the Board of
Directors, the Company shall invite a representative of Intuit (the
"Representative"), which Representative shall be reasonably acceptable to the
Company, to attend all meetings of the Board of Directors and the audit
committee thereof in a non-voting observer capacity and, in this respect, shall
give such Representative copies of all notices, minutes, consents and other
Board of Directors' or audit committee members' materials that it provides to
all of its directors or to its audit committee members (as appropriate);
provided, however, (i) that the Company reserves the right to withhold any
information and to exclude such Representative from any meeting, or any portion
thereof, as is reasonably determined by the Chairman of the Board or a majority
of the members of the Board of Directors or the audit committee thereof (in the
case of audit committee meetings) to be necessary for purposes of
confidentiality, competitive factors, attorney-client privilege or other
reasonable purposes; and (ii) that in no event shall the failure to provide the
notice described above invalidate in any way any action taken at a meeting of
the Board of Directors or any meeting of the audit committee thereof.
2.2 Confidentiality. Intuit agrees, and Intuit will cause any
Representative of Intuit to agree, to hold in confidence with respect to all
information so provided and not use or disclose any confidential information
provided to or learned by it in connection with its rights under this letter
other than for purposes reasonably related to Intuit's interest as a shareholder
of the Company, and not to the detriment of, the Company. The confidentiality
provisions hereof will survive any termination of this Agreement.
SECTION 3
MISCELLANEOUS
3.1 Termination. This Agreement shall terminate and have no further
force or effect at such time as Intuit ceases to hold at least ten percent (10%)
of the outstanding Common Stock (including shares of Common Stock issuable upon
conversion of outstanding shares of Preferred Stock) of the Company.
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3.2 Specific Enforcement. It is agreed and understood that monetary
damages would not adequately compensate Intuit for the breach of this Agreement
by the Company, that this Agreement shall be specifically enforceable, and that
any breach or threatened breach of this Agreement shall be the proper subject of
a temporary or permanent injunction or restraining order. Further, the Company
waives any claim or defense that there is an adequate remedy at law for such
breach or threatened breach.
3.3 Assignment. This Agreement and the rights granted to Intuit
hereunder are personal to Intuit and may not be assigned to any other person;
provided, however, that this Agreement and all of the rights granted to Intuit
hereunder may be assigned to (i) a purchaser in a private, block sale
transaction of all of the shares of Common Stock of the Company held by Intuit,
which purchaser is reasonably acceptable to the Company or (ii) any party who
acquires ownership or control of Intuit through a merger, consolidation, sale of
assets or similar business combination (either such party is referred to as an
"Assignee"); provided, further, that any Assignee expressly agrees in writing to
be bound by the standstill provisions and resale restrictions contained in
Sections 4.5 and 4.6 of the Stock Purchase Agreement.
3.4 Successors and Assigns. Except as otherwise expressly provided
herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties.
3.5 Governing Law. This Agreement shall be governed by and construed
under the internal laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California, without reference to principles of conflict of laws or choice of
laws.
3.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.7 Headings. The headings and captions used in this Agreement are used
for convenience only and are not to be considered in construing or interpreting
this Agreement. All references in this Agreement to sections, paragraphs,
exhibits and schedules shall, unless otherwise provided, refer to sections and
paragraphs hereof and exhibits and schedules attached hereto, all of which
exhibits and schedules are incorporated herein by this reference.
3.8 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
deposit with the United States Post Office, by registered or certified mail,
postage prepaid and addressed to the party to be notified in the case of the
Company, at 555 Broadway, Redwood City, California 94063, attention: General
Counsel, with a copy to Mark C. Stevens, Fenwick & West LLP, Two Palo Alto
Square, Palo Alto, California 94306, or in the case of Intuit, at 1840
Embarcadero Road, Palo Alto, California 94303, attention: Treasurer, with a copy
to: General Counsel, or at such other address as any party may designate by
giving ten (10) days advance written notice to the other party.
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3.9 Amendments and Waivers. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only
with the written consent of the Company and Intuit.
3.10 Severability. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision(s) shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision(s) were so excluded and shall be enforceable in accordance with
its terms.
3.11 Entire Agreement. This Agreement constitutes the entire agreement
and understanding of the parties with respect to the subject matter hereof and
supersedes any and all prior negotiations, correspondence, agreements,
understandings, duties or obligations between the parties with respect to the
subject matter hereof.
3.12 Further Assurances. From and after the date of this Agreement,
upon the request of Intuit or the Company, the Company and Intuit shall execute
and deliver such instruments, documents or other writings as may be reasonably
necessary or desirable to confirm and carry out and to effectuate fully the
intent and purposes of this Agreement.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
THE COMPANY INTUIT
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EXCITE, INC., INTUIT INC.,
a California corporation a Delaware corporation
By: /s/ Robert C. Hood By: /s/ William Harris
------------------------------- ----------------------------------
Title: Executive VP, CAO/CFO Title: Exec. VP
---------------------------- -------------------------------
[SIGNATURE PAGE TO NOMINATION AND OBSERVER AGREEMENT]
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EXHIBIT 4.09
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of June 25, 1997 (the "EFFECTIVE DATE") by and between EXCITE,
INC., a California corporation ("EXCITE") and INTUIT INC., a Delaware
corporation ("INTUIT").
R E C I T A L S
A. Excite and Intuit have entered into a certain Stock Purchase
Agreement dated as of June 11, 1997 (the "STOCK PURCHASE AGREEMENT"), pursuant
to which Excite will sell 2,900,000 shares of its Common Stock to Intuit (the
"PURCHASED SHARES").
B. Excite and Intuit have entered into a certain Right of First Refusal
Agreement dated as of June 25, 1997 (the "RIGHT OF FIRST REFUSAL AGREEMENT"),
pursuant to which Excite will be obligated to sell shares of its Common Stock to
Intuit under certain circumstances (the "ANTI-DILUTION SHARES").
C. As a condition to Intuit agreeing to purchase the Purchased Shares
and entering into the Right of First Refusal Agreement, Excite has agreed to
grant to Intuit certain registration rights with respect to the Purchased Shares
and the Anti-Dilution Shares, as more fully set forth herein.
NOW, THEREFORE, in consideration of the above recitals and the mutual
covenants hereinafter set forth, Excite and Intuit 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) Intuit Registrable Securities. The term "INTUIT
REGISTRABLE SECURITIES" means: (1) all of the Purchased Shares, (2) any
Anti-Dilution Shares and (3) 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 Purchased Shares or any Anti-Dilution Shares; excluding in
all cases, however, (i) any Intuit Registrable Securities sold by a person in a
transaction in which rights under this Section 1 are not assigned in accordance
with this Agreement, or (ii) any Intuit Registrable Securities sold in a public
offering pursuant to a registration statement filed with the SEC or sold
pursuant to Rule 144 promulgated under the 1933 Act ("RULE 144").
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(c) Prospectus: The term "PROSPECTUS" shall mean the prospectus
included in any Shelf Registration Statement, Additional Shelf Registration
Statement, Anti-Dilution Registration Statement or other 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 Intuit Registrable
Securities covered by such Shelf Registration Statement, Additional Shelf
Registration Statement or Anti-Dilution 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) SEC. The term "SEC" or "COMMISSION" means the U.S.
Securities and Exchange Commission.
(e) Shelf Registration Statement. See Section 1.2(a).
(f) Subsequent Shelf Registration Statement. See Section 1.2(f)
(g) Additional Shelf Registration Statement. See Section 1.2(c).
(h) Anti-Dilution Registration Statement. See Section 1.2(d).
1.2 Shelf Registration.
(a) Initial Registration. Excite shall prepare and file with the
SEC within 30 days following the Second Closing (as defined in Section 2.1 of
the Stock Purchase Agreement), and use its best efforts to have declared
effective as soon as practicable thereafter, a registration statement providing
for the resale by Intuit of all of the Intuit Registrable Securities then owned
by Intuit in accordance with the manner of sale provisions set forth in Rule
144(f) under the 1933 Act or otherwise in customary brokerage transactions on
the Nasdaq National Market or other public market on which Excite's shares of
Common Stock are traded (a "SHELF REGISTRATION STATEMENT"). Excite shall use its
best efforts to keep the Shelf 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 Shelf Registration
Statement, for such period (the "INITIAL EFFECTIVENESS PERIOD") ending on the
date that is two years after the date of the Second Closing or such shorter
period ending (A) when the Intuit Registrable Securities cease to meet the
definition of Intuit Registrable Securities pursuant to Section 1.1(b) or (B)
Excite's obligations hereunder terminate pursuant to Section 1.9.
(b) Subsequent Registration. If, after the end of the Initial
Effectiveness Period, Intuit continues to hold Intuit Registrable Securities,
Excite shall promptly prepare and file with the SEC and use its best efforts to
have declared effective as soon as practicable thereafter, a registration
statement providing for the resale by Intuit of all Intuit Registrable
Securities then owned by Intuit in the same manner as the Self Registration
Statement (a "SUBSEQUENT SHELF REGISTRATION STATEMENT"). Excite shall use its
best efforts to
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keep the Subsequent Shelf Registration Statement effective for such period (the
"SUBSEQUENT EFFECTIVENESS PERIOD") ending on the date that is one year after the
filing of the Subsequent Shelf Registration Statement, or such shorter period
ending (A) when the Intuit Registrable Securities cease to meet the definition
of Intuit Registrable Securities pursuant to Section 1.1(b) or (B) Excite's
obligations hereunder terminate pursuant to Section 1.9.
(c) Extension. If after the Subsequent Effectiveness Period, any
registration rights with respect to any securities of Excite which were granted
subsequent to the date of this Agreement ("ADDITIONAL REGISTRATION RIGHTS") are
still in effect and Intuit holds Intuit Registrable Securities, Excite shall
file an additional Shelf Registration Statement (an "ADDITIONAL SHELF
REGISTRATION STATEMENT") and shall use its best efforts to keep such Additional
Shelf 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 Additional Shelf Registration Statement, for
such period (the "ADDITIONAL EFFECTIVENESS PERIOD") ending on the date that such
Additional Registration Rights expire or such shorter period ending (A) when the
Intuit Registrable Securities cease to meet the definition of Intuit Registrable
Securities pursuant to Section 1.1(b), (B) Excite's obligations terminate
pursuant to Section 1.9 or (c) two years from the date of filing of such
Additional Shelf Registration Statement.
(d) Anti-Dilution Shares. If at any time subsequent to the
filing of the most recently filed Anti-Dilution Registration Statement (as
defined below) or, if no Anti-Dilution Registration Statement has been filed,
subsequent to the filing of the Shelf Registration Statement, the Company has
sold Anti-Dilution Shares having an aggregate purchase price of $250,000, then
the Company shall prepare and file with the SEC a registration statement
providing for the resale of such Anti-Dilution Shares in accordance with the
manner of sale provisions set forth in Rule 144(f) under the 1933 Act or
otherwise in customary brokerage transactions on the Nasdaq National Market or
other public market on which Excite's shares of Common Stock are traded (an
"ANTI-DILUTION REGISTRATION STATEMENT"). Excite shall use its best efforts to
keep such Anti-Dilution Registration Statement continuously effective pursuant
to the rules, regulations or instructions under the 1933 Act applicable to the
registration statement for such Anti-Dilution Registration Statement until the
expiration of (i) the Initial Effectiveness Period (if such Anti-Dilution
Registration Statement was filed during the Initial Effectiveness Period), (ii)
the Subsequent Effectiveness Period (if such Anti-Dilution Registration
Statement was filed during the Subsequent Effectiveness Period) or (iii) the
expiration of the Additional Effectiveness Period during which such
Anti-Dilution Registration Statement was filed (if such Anti-Dilution
Registration Statement was filed during an Additional Effectiveness Period) or
such shorter period ending (A) when the Intuit Registrable Securities cease to
meet the definition of Intuit Registrable Securities pursuant to Section 1.1(b)
or (B) Excite's obligations terminate pursuant to Section 1.9.
(e) The obligations of Excite pursuant to Sections 1.2(a),
1.2(b), 1.2(c) and 1.2(d) hereof are subject to the following:
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(i) that, subject to the provisions of Section 4.6 of the
Stock Purchase Agreement, Intuit will sell the Intuit Registrable Securities
pursuant to any Shelf Registration Statement or Additional Shelf Registration
Statement (and any Anti-Dilution Registration Statement) only during a
"PERMITTED WINDOW" (as defined below), provided that there will be no more than
four Permitted Windows during the Initial Effectiveness Period and no more than
two Permitted Windows during each year that an Additional Effectiveness Period
is in effect; and that there will be at least a 90-day interval between any two
Permitted Windows;
(ii) if Excite furnishes to Intuit a certificate signed by
the President or Chief Executive Officer of Excite stating that, in the good
faith judgment of the Board of Directors of Excite, it would be seriously
detrimental to Excite and its shareholders for such Shelf Registration
Statement, Additional Shelf Registration Statement or Anti-Dilution Registration
Statement to be effective at such time (or, in the case a "NOTICE OF RESALE" (as
defined below) has been given, that would be seriously detrimental to Excite and
its shareholders for the Permitted Window to commence at such time) due to (A)
the existence of a material development or potential material development
involving Excite which Excite would be obligated to disclose in the Prospectus
contained in the Shelf Registration Statement, Additional Shelf Registration
Statement or Anti-Dilution 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) concurrent public filings with the SEC of
other registration statements; in which event(s) Excite will have the right to
defer the filing (the "DEFERRAL RIGHT") of the Shelf Registration Statement or
an Additional Shelf Registration Statement (or the commencement of the Permitted
Window, as the case may be) for a period of not more than 60 days after the date
it would otherwise be required to file the Shelf Registration Statement or
Additional Shelf Registration Statement pursuant to Section 1.2(a), (b), (c) or
(d) (or after receipt of the Notice of Resale, as the case may be); provided,
however, that Excite will not utilize the Deferral Right more than once in any
twelve month period; and provided further, however, that Excite may defer the
filing of the Shelf Registration Statement or Additional Shelf Registration
Statement (or the commencement of the Permitted Window as the case may be) for
up to 90 days if the material development or potential material development or
SEC filing that is the reason for the deferral directly relates to Intuit and
for up to 90 days if so requested by an underwriter in connection with an
underwritten offering of Excite securities so long as the selling shareholders
in such underwritten offering are subject to a lock-up agreement of the same
duration (other than with respect to Excite securities to be sold by such
selling shareholders in such underwritten offering); and
(iii) that Excite will not be required to effect any such
registration, qualification or compliance in any particular jurisdiction in
which Excite would thereby be required to qualify to do business or to execute a
general consent to service of process.
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(f) Permitted Window. For the purposes of this Section 1.2, a
"PERMITTED WINDOW" is a period of 30 consecutive calendar days commencing upon
receipt by Intuit of Excite's written notification to Intuit in response to a
Notice of Resale that the Prospectus contained in the Shelf Registration
Statement or Additional Shelf Registration Statement is available for resale. In
order to cause a Permitted Window to commence, Intuit must first give written
notice to Excite of its present intention to sell part or all of the Intuit
Registrable Securities pursuant to such registration (a "NOTICE OF RESALE").
Upon receipt of such Notice of Resale, Excite will give written notice to Intuit
as soon as practicable, but in no event not more than five business days after
such receipt, that (A) the Prospectus contained in the Shelf Registration
Statement or Additional Shelf Registration Statement is current and that the
Permitted Window will commence on the date such notice is received by Intuit ,
(B) it is necessary for Excite to supplement the Prospectus or make an
appropriate filing under the Securities Exchange Act of 1934, as amended, (the
"1934 ACT") so as to cause the Prospectus to become current (unless a
certificate of the President is delivered as provided in 1.2(e)(ii) above), or
(C) Excite is required under the 1933 Act and the regulations thereunder to
amend the Shelf Registration Statement or Additional Shelf Registration
Statement in order to cause the Prospectus to be current (unless a certificate
of the President is delivered as provided in 1.2(e)(ii) above). In the event
that Excite determines that a supplement to the Prospectus, the filing of a
report pursuant to the 1934 Act or an amendment to the Shelf Registration
Statement or Additional Shelf Registration Statement required under the 1933
Act, as provided above, is necessary, it will take such actions as soon as
practicable; whereupon it will notify Intuit of the filing of such supplement,
report or amendment, and, in the case of an amendment, the effectiveness
thereof, and the Permitted Window will then commence.
(g) Closing of Permitted Window. During a Permitted Window and
in the event (i) of the happening of any event of the kind described in Section
1.5(f) hereof or (ii) that, in the judgment of Excite's Board of Directors, it
is advisable to suspend use of the Prospectus for a discrete period of time due
to pending corporate developments or public filings with the SEC, Excite shall
deliver a certificate in writing to Intuit to the effect of the foregoing and,
upon receipt of such certificate, the Permitted Window shall terminate. The
Permitted Window shall resume (and such resumed Permitted Window shall remain in
effect for a period of 30 consecutive calendar days unless suspended pursuant to
the provisions of this Section 1.5(g)) upon Intuit's receipt of copies of the
supplemented or amended Prospectus, or at such time as Intuit is advised in
writing by Excite that the Prospectus may be used, and at such time as Intuit
has received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in such Prospectus and which
are required to be delivered as part of the Prospectus. Excite will use its best
efforts to ensure that the use of the Prospectus may be resumed, and the
Permitted Window will commence, as soon as practicable and, in the case of a
pending corporate development or SEC filing, as soon, in the judgment of
Excite's chief executive officer, as disclosure of the material information
relating to such pending corporate development or SEC filing would not have a
materially adverse effect on Excite's ability to consummate the transaction, if
any, to which such corporate development or SEC filing relates, but in any event
the Permitted Window shall resume no later than the later of (x) 60 days after
it has been terminated pursuant to this Section 1.2(g) or (y) the beginning of
the calendar quarter subsequent to the calendar quarter in which the Permitted
Window was terminated.
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(h) Expenses. All expenses, other than underwriting discounts
and brokers commissions, incurred by Excite in connection with the Shelf
Registration Statement, the Subsequent Shelf Registration Statement, any
Additional Shelf Registration Statement, any Anti-Dilution Registration
Statement and actions taken by Excite in connection with each Permitted Window
shall be borne by Excite. Notwithstanding the foregoing, Excite shall not be
required to pay for any fees and expenses in connection with the commencement of
a Permitted Window begun pursuant to this Section 1.2 if the request to commence
the Permitted Window is subsequently withdrawn at the request of Intuit, unless
such withdrawal is the result of a material adverse change in the business of
Excite that was unknown to Intuit at the time the request to commence the
Permitted Window was made and the withdrawal of such request is made with
reasonable promptness upon learning of such material adverse change. A
withdrawal of a request to commence a Permitted Window will not be applied
against the maximum of four Permitted Windows during the Initial Effectiveness
Period or two Permitted Windows during any Additional Effectiveness Period
provided to Intuit under this Agreement if such withdrawal was made pursuant to
the immediately preceding sentence or if the withdrawal is at the request of
Excite.
1.3 Demand Registration.
(a) Request by Intuit. If Excite shall receive a written request
from Intuit that Excite effect a registration statement under the 1933 Act and
any related qualification or compliance with respect to all or a part of the
Intuit Registrable Securities, then Excite shall, as soon as practicable, effect
such registration and all such qualifications and compliances as may be so
requested and as would permit or facilitate the sale and distribution of all or
such portion of Intuit's Registrable Securities which Intuit requests to be
registered.
(b) Underwriting. If Intuit intends to distribute the Intuit
Registrable Securities covered by its request by means of an underwriting, then
it shall so advise Excite as a part of its request made pursuant to this Section
1.3. Intuit and Excite shall enter into an underwriting agreement in customary
form with the managing underwriter or underwriters selected for such
underwriting by Intuit. Notwithstanding any other provision of this Section 1.3,
if the underwriter(s) advise(s) Excite or Intuit in writing that marketing
factors require a limitation of the number of securities to be underwritten then
Excite shall so advise Intuit, and the number of Intuit Registrable Securities
that may be included in the underwriting shall be reduced as required by the
underwriter(s), provided that any securities included in the underwriting by
Excite or holders of Excite securities other than Intuit shall be withdrawn
completely from the underwriting before the number of Intuit Registrable
Securities that may be included in the underwriting shall be reduced. Any Intuit
Registrable Securities excluded and withdrawn from such underwriting shall be
withdrawn from the registration.
(c) Maximum Number of Demand Registrations. Excite is obligated
to effect only two (2) such registrations pursuant to this Section 1.3.
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(d) Deferral; Jurisdictional Requirements. Notwithstanding the
foregoing, if Excite shall furnish to Intuit a certificate signed by the
President or Chief Executive Officer of Excite stating that in the good faith
judgment of the Board of Directors of Excite, it would be seriously detrimental
to Excite and its shareholders for such registration statement to be filed and
it is therefore essential to defer the filing of such registration statement,
then Excite shall have the right to defer such filing for a period of not more
than 60 days after receipt of the request of Intuit; provided, however, that
Excite may not utilize this right more than once in any twelve (12) month
period. Excite will not be required to effect any registration, qualification or
compliance pursuant to this Section 1.3 in any particular jurisdiction in which
Excite would thereby be required to qualify to do business or to execute a
general consent to service of process.
(e) Expenses. All expenses incurred in connection with a
registration pursuant to this Section 1.3, including without limitation all
registration and qualification fees, printers' and accounting fees, fees and
disbursements of counsel for Excite, fees and disbursements of one counsel for
Intuit shall be borne by Excite. All underwriters' discounts and commissions
relating to the shares to be sold by Intuit shall be borne by Intuit.
(f) Withdrawn Request. Intuit may withdraw a request for
registration under this Section 1.3 at any time, provided that Intuit will
remain liable for all expenses incurred in conjunction therewith unless such
withdrawal is the result of a material adverse change in the business of Excite
that was unknown to Intuit at the time the request for registration was made and
the withdrawal of such request is made with reasonable promptness upon learning
of such material adverse change. A request for registration that is so withdrawn
shall not count toward the maximum number of registrations provided for in
Section 1.3(c).
1.4 Piggyback Registrations. Excite shall notify Intuit in writing
at least thirty (30) days prior to filing any registration statement under the
1933 Act for purposes of effecting a public offering of securities of Excite
(including, but not limited to, registration statements relating to secondary
offerings of securities of Excite, but excluding registration statements on Form
S-8 or S-4 or relating solely to any employee benefit plan or an acquisition of
any entity or business) and will afford Intuit, subject to the terms and
conditions set forth herein, an opportunity to include in such registration
statement all or any part of the Intuit Registrable Securities then held by
Intuit. Intuit shall, within twenty (20) days after receipt of the
above-described notice from Excite, so notify Excite in writing, and in such
notice shall inform Excite of the number of Intuit Registrable Securities Intuit
wishes to include in such registration statement. If Intuit decides not to
include all of the Intuit Registrable Securities in any registration statement
thereafter filed by Excite, Intuit shall nevertheless continue to have the right
to include any Intuit Registrable Securities not included in such registration
statement in any subsequent registration statement or registration statements as
may be filed by Excite with respect to offerings of its securities, all upon the
terms and conditions set forth herein.
(a) Underwriting. If a registration statement with respect to
which Excite gives notice under this Section 1.4 pertains to an underwritten
offering, then Excite shall so advise Intuit. In such event, the right of Intuit
to have the Intuit Registrable Securities included in a registration pursuant to
this Section 1.4 shall be conditioned upon Intuit's participation in such
underwriting and the inclusion of the Intuit Registrable Securities in the
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<PAGE> 8
underwriting to the extent provided herein. Intuit shall enter into an
underwriting agreement in customary form with the managing underwriter or
underwriters selected for such underwriting. Notwithstanding any other provision
of this Agreement, if the managing underwriter or underwriters determine(s) in
good faith that marketing factors require a limitation of the number of shares
to be underwritten, then the managing underwriter(s) may exclude shares
(including Intuit Registrable Securities) from the registration and the
underwriting, and the number of shares that may be included in the registration
and the underwriting shall be allocated, first, to Excite, second, to America
Online, Inc., a Delaware Corporation ("AOL"), Intuit and the participating
holders of the Company's Registrable Securities (as defined in the Restated and
Amended Investors' Rights Agreement, by and among Excite, AOL and certain other
investors of Excite, dated as of March 8, 1996, as amended through the date
hereof), on a pro-rata basis based on the number of registrable securities held
by each such holder, and third, to any other participating holders of Excite's
securities. If Intuit disapproves of the terms of any such underwriting, Intuit
may elect to withdraw therefrom by written notice to Excite and the managing
underwriter, delivered at least ten (10) business days prior to the effective
date of the registration statement. Any Intuit Registrable Securities excluded
or withdrawn from such underwriting shall be excluded and withdrawn from the
registration.
(b) Expenses. All expenses incurred in connection with a
registration pursuant to this Section 1.4 (excluding underwriters' and brokers'
discounts and commissions), including, without limitation all federal and "blue
sky" registration and qualification fees, printers' and accounting fees, fees
and disbursements of counsel for Excite and reasonable fees and disbursements of
counsel for Intuit, shall be borne by Excite.
1.5 Obligations of Excite. Whenever required to effect the
registration of any Intuit Registrable Securities under this Agreement, Excite
shall, as expeditiously as reasonably possible:
(a) Prepare promptly and file with the SEC a registration
statement with respect to such Intuit Registrable Securities, 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, cause such registration statement to become effective as
soon as practicable and with respect to registrations effected pursuant to
Section 1.3 keep such registrations effective for up to ninety (90) days or such
shorter period of time as is agreed to in writing by Intuit.
(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.
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(c) Furnish to Intuit 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 it may reasonably request in order to
facilitate the disposition of the Intuit 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 Intuit, 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) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter(s) of such offering.
(f) Notify Intuit promptly (i) of any request by the SEC or any
other federal or state governmental authority during the period of effectiveness
of a 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 a registration 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 Intuit 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 a 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, in the case of a registration statement, 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 that in the case of the Prospectus, it
will not contain any untrue statement of a material fact 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, and (v) of Excite's reasonable determination that a post-effective
amendment to a registration statement would be appropriate; except that notice
of an event or determination referred to in (iv) or (v) above (x) need be made
only if Intuit has delivered the Notice of Resale referred to in Section 2(b)
and Excite is required to cause a Permitted Window to go into effect pursuant to
such Notice of Resale as provided therein or if a Permitted Window is then in
effect and shall specify in reasonable detail the nature or details of such
event or determination unless such description would result in the violation of
any confidentiality agreement, attorney-client privilege or would otherwise
result in the disclosure of confidential or other proprietary information of
Excite.
(g) Furnish, at the request of Intuit, but only with respect to
an underwritten offering, on the date that such Intuit Registrable Securities
are delivered to the underwriters for sale, (i) an opinion, dated as of such
date, of the counsel representing Excite for the purposes of such registration,
in form and substance as is customarily given to underwriters
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<PAGE> 10
in an underwritten public offering and reasonably satisfactory to Intuit,
addressed to the underwriters, and (ii) a "comfort" letter dated as of such
date, from the independent certified public accountants of Excite, in form and
substance as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering and reasonably satisfactory to a
Intuit, addressed to the underwriters.
1.6 Furnish Information. It shall be a condition precedent to the
obligations of Excite to take any action pursuant to Sections 1.2, 1.3 or 1.4
that Intuit shall furnish to Excite such information regarding it, the Intuit
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to timely effect the registration of its
Intuit Registrable Securities.
1.7 Indemnification. In the event any Intuit Registrable Securities
are included in a registration statement under Sections 1.2, 1.3 or 1.4:
(a) By Excite. To the extent permitted by law, Excite will
indemnify and hold harmless Intuit, officers and directors of Intuit, any
underwriter (as defined in the 1933 Act) for Intuit and each person, if any, who
controls Intuit or such underwriter within the meaning of the 1933 Act or the
1934 Act, against any losses, claims, damages, or liabilities (joint or several)
to which they 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 a registration statement filed pursuant to
this Section 1 (including a registration statement with respect to
which Intuit exercises its rights under Section 1.4), 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 a
registration statement filed pursuant to this Section 1 (including a
registration statement with respect to which Intuit exercises its
rights under Section 1.4), 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;
and Excite will reimburse each of Intuit, such officer or director, underwriter
or controlling
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<PAGE> 11
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 1.7(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
Intuit, or by such, officer, director, underwriter or controlling person of
Intuit.
(b) By Intuit. To the extent permitted by law, Intuit 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, and any underwriter, against any
losses, claims, damages or liabilities (joint or several) to which Excite or any
such director, officer, controlling person or underwriter 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 Intuit expressly for use in connection with
such registration; and Intuit will reimburse any legal or other expenses
reasonably incurred by Excite or any such director, officer, controlling person,
underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the indemnity agreement
contained in this subsection 1.7(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 Intuit, which consent shall not be
unreasonably withheld; and provided further, that the total amounts payable in
indemnity by Intuit under this Section 1.7(b) in respect of any Violation shall
not exceed the net proceeds received by Intuit in the registered offering out of
which such Violation arises.
(c) Notice. Promptly after receipt by an indemnified party under
this Section 1.7 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 1.7, 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 such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying
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<PAGE> 12
party of any liability to the indemnified party under this Section 1.7, 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 1.7.
(d) Defect Eliminated in Final Prospectus. The foregoing
indemnity agreements of Excite and Intuit 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 in question 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) Intuit (and/or any officer, director, underwriter or controlling person who
may be indemnified under Section 1.7(a)), makes a claim for indemnification
pursuant to this Section 1.7 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 1.7 provides for indemnification in such case, or (ii) contribution
under the 1933 Act may be required on the part of Intuit (and/or any officer,
director, underwriter or controlling person who may be indemnified under Section
1.7(a)) in circumstances for which indemnification is provided under this
Section 1.7; then, and in each such case, Excite and Intuit (and/or such other
person) or 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 fraud
by Intuit in which there is no limitation, (i) shall Intuit be responsible for
more than the portion represented by the percentage that the public offering
price of its Intuit 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 and (ii) shall Intuit be
required to contribute any amount in excess of the public offering price of all
such securities offered and sold by Intuit 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 1933 Act) 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 Intuit under this
Section 1.7 shall survive the completion of any offering of Intuit Registrable
Securities in a registration statement, and otherwise.
1.8 Rule 144 Reporting. With a view to making available the benefits
of certain rules and regulations of the Commission which may at any time permit
the sale of the Intuit Registrable Securities to the public without
registration, for so long as Intuit owns any Intuit Registrable Securities,
Excite agrees to:
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<PAGE> 13
(a) Make and keep adequate, current public information
available, as required by and defined in Rule 144 under the 1933 Act, at all
times;
(b) File with the Commission in a timely manner all reports and
other documents required of Excite under the 1934 Act; and
(c) Furnish to Intuit forthwith upon request a written statement
by Excite as to its compliance with the reporting requirements of said Rule 144,
a copy of the most recent annual or quarterly report of Excite, and such other
reports and documents of Excite as Intuit may reasonably request in availing
itself of any rule or regulation of the Commission allowing a shareholder of the
Company to sell any such securities without registration.
1.9 Termination of Excite's Obligations. Excite shall have no
obligations to register Intuit Registrable Securities (i) if all Intuit
Registrable Securities have been registered and sold pursuant to registrations
effected pursuant to this Agreement, or (ii) at such time as all Intuit
Registrable Securities may be sold within a three month period under Rule 144,
as it may be amended from time to time, including but not limited to amendments
that reduce that period of time that securities must be held before such
securities may be sold pursuant to such rule.
2. ASSIGNMENT.
2.1 Assignment. Notwithstanding anything herein to the contrary, the
registration rights of Intuit under Section 1 hereof may be assigned only to (a)
a party who acquires from Intuit at least fifteen percent (15%) of the shares of
Common Stock that constituted the original number of Intuit Registrable
Securities (as such number may be adjusted to reflect subdivisions, combinations
and stock dividends of Excite's Common Stock) or (b) any party who acquires
ownership or control of Intuit through a merger, consolidation, sale of assets
or similar business combination (either such party is referred to as a
"ASSIGNEE"); provided, however that (w) 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; (x) 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, and (y) upon such an assignment or
assignments, the rights held by Intuit under this Agreement may only be
exercised by persons or entities holding a majority of the Intuit Registrable
Securities, and (z) no such assignment or assignments shall increase the
obligations of Excite hereunder.
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<PAGE> 14
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:
(a) if to Excite, at:
Excite, Inc.
555 Broadway
Redwood City, CA 94063
Attention: President
Facsimile: 415/
with a copy to:
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, CA 94306
Attention: Mark Stevens
Facsimile: 415/494-1417
(b) If to Intuit :
Intuit Inc.
1840 Embarcadero Road
Palo Alto, CA 94303
Attention: Treasurer
Facsimile: 415/
with a copy to:
Intuit Inc.
1840 Embarcadero Road
Palo Alto, CA 94303
Attention: General Counsel
Facsimile:
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 Stock Purchase
Agreement constitute and contains the entire agreement and understanding of the
parties with respect to the subject matter hereof and supersedes any and all
prior negotiations, correspondence, agreements, understandings, duties or
obligations between the parties respecting the subject matter hereof.
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<PAGE> 15
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 Intuit (and/or any of their permitted successors
or assigns).
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.
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.
[THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK]
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<PAGE> 16
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
EXCITE, INC. INTUIT INC.
By: /s/ Robert C. Hood By: /s/ William Harris
------------------------------- ----------------------------------
Title: Executive VP, CAO/CFO Title: Exec. VP
---------------------------- -------------------------------
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
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<PAGE> 1
EXHIBIT 4.10
RIGHT OF FIRST REFUSAL AGREEMENT
This Right of First Refusal Agreement (this "AGREEMENT") is made and
entered into as of June 25, 1997 by and among EXCITE, INC., a California
corporation (the "COMPANY") and INTUIT INC., a Delaware corporation (the
"INVESTOR").
R E C I T A L S
A. The Company and Investor have entered into a Stock Purchase
Agreement dated as of June 11, 1997 (the "STOCK PURCHASE AGREEMENT"), pursuant
to which the Company will sell 2,900,000 shares of its Common Stock to Investor
(the "PURCHASED SHARES").
B. The Stock Purchase Agreement provides that, as a condition to
Investor's purchase of the Purchased Shares thereunder, the Company will enter
into this Agreement and Investor will be granted the rights set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises hereinafter set forth, the parties hereto agree as follows:
1. RIGHT OF FIRST REFUSAL; PURCHASE RIGHT.
1.1 Right of First Refusal. Investor or any party to whom
Investor's rights under this Section 1 have been duly assigned in accordance
with Section 2.1 hereof (Investor or any such assignee being hereinafter
referred to as the "RIGHTS HOLDER") has the right of first refusal (the "RIGHT
OF FIRST REFUSAL") to purchase all or any part of the Rights Holder's Pro Rata
Share (as defined below), of all (or any part) of any "New Securities" (as
defined in Section 1.2(a)) that the Company may from time to time issue after
the date of this Agreement, plus such additional portion of the New Securities
such that Rights Holder's Pro Rata Share of the Company equals up to nineteen
percent (19%) of the Company immediately after the issuance of such New
Securities. A holder's "PRO RATA SHARE" for purposes of this Agreement is the
ratio of (a) the number of shares of the Company's Common Stock (on an
as-converted to Common Stock basis) as to which such holder is the owner, to (b)
a number of shares of Common Stock of the Company equal to the sum of (i) the
total number of shares of Common Stock of the Company then outstanding plus (ii)
the total number of shares of Common Stock of the Company into which all then
outstanding shares of voting Preferred Stock of the Company are then
convertible.
1.2 New Securities; Procedures; Failure to Exercise.
(a) New Securities. "NEW SECURITIES" shall mean any
Common Stock or Preferred Stock of the Company, whether now authorized or not,
and rights, options or warrants to purchase such Common Stock or Preferred
Stock, and securities of any type whatsoever that are, or may become,
convertible or exchangeable into such Common Stock or
<PAGE> 2
Preferred Stock which are to be sold in a financing transaction solely for cash
consideration. For purposes of illustration, the term "New Securities"
specifically excludes, without limitation:
(i) shares of the Company's Common Stock (and/or
options or warrants therefor) issued or authorized for issuance
(including shares authorized by the Company's Board of Directors
subject to approval by its shareholders at the Company's 1997 Annual
Meeting of Shareholders, to be held on June 19, 1997) to employees,
officers, directors, contractors, advisors or consultants of the
Company pursuant to agreements or plans approved by the Board of
Directors of the Company;
(ii) any securities issuable upon conversion of
or with respect to any then outstanding shares of Preferred Stock of
the Company;
(iii) any securities issuable upon exercise of any
options, warrants or rights to purchase any securities of the Company
outstanding or authorized for issuance (including shares authorized by
the Company's Board of Directors subject to approval by its
shareholders at the Company's 1997 Annual Meeting of Shareholders, to
be held on June 19, 1997) on the date of this Agreement ("OPTION AND
WARRANT SECURITIES") and any securities issuable upon the exercise or
conversion of any Option and Warrant Securities;
(iv) shares of the Company's Common Stock or
Preferred Stock issued in connection with any stock split or stock
dividend;
(v) any shares of the Company's Common Stock or
Preferred Stock (and/or options or warrants therefor) issued or
issuable to parties providing the Company with equipment leases, loans,
credit lines, guaranties of indebtedness, cash price reductions or
similar financing; or
(vi) securities issued for consideration other
than cash pursuant to a merger, consolidation, acquisition or similar
business combination.
(b) Procedures. In the event that the Company proposes to
undertake an issuance of New Securities, it shall give to the Rights Holder
written notice of its intention to issue New Securities (the "NOTICE"),
describing the type of New Securities and the price and the general terms upon
which the Company proposes to issue such New Securities. The Rights Holder shall
have thirty (30) days from the date of mailing of any such Notice to agree in
writing to purchase all or any part of the Rights Holder's Pro Rata Share of
such New Securities for the price and upon the general terms specified in the
Notice by giving written notice to the Company and stating therein the quantity
of New Securities to be purchased (not to exceed the Rights Holder's Pro Rata
Share). If the Rights Holder fails to so agree in writing within such thirty
(30) day period to purchase the Rights Holder's full Pro Rata Share of an
offering of New Securities, then the Rights Holder shall forfeit the right
hereunder to purchase that part of its Pro Rata Share of such New Securities
that it did not so agree to purchase.
2
<PAGE> 3
(c) Failure to Exercise. In the event that the Rights
Holder fails to exercise in full the Right of First Refusal within such thirty
(30) day period, then the Company shall have 90 days thereafter to sell the New
Securities with respect to which the Rights Holder's Right of First Refusal
hereunder was not exercised, at a price and upon general terms not materially
more favorable to the purchasers thereof than specified in the Company's Notice
to the Rights Holder. In the event that the Company has not issued and sold the
New Securities within such 90 day period, then the Company shall not thereafter
issue or sell any New Securities without again first offering such New
Securities to the Rights Holder pursuant to Sections 1.1 and 1.2 hereof.
1.3 Termination. This Agreement shall terminate and have no
further force or effect at such time as Investor (or any party to whom
Investor's rights under this Section 1 have been duly assigned in accordance
with Section 2.1 hereof) ceases to hold at least ten percent (10%) of the
outstanding Common Stock (including shares of Common Stock issuable upon
conversion of outstanding shares of Preferred Stock) of the Company.
2. ASSIGNMENT AND AMENDMENT.
2.1 Assignment. Notwithstanding anything herein to the
contrary, this Agreement and the rights granted to Investor hereunder are
personal to Investor and may not be assigned to any other person; provided,
however, that this Agreement and all of the rights granted to Investor hereunder
may be assigned to (i) a purchaser in a private, block sale transaction of all
of the shares of Common Stock of the Company held by Investor, which purchaser
is reasonably acceptable to the Company or (ii) any party who acquires ownership
or control of Intuit through a merger, consolidation, sale of assets or similar
business combination (either such party is referred to as an "ASSIGNEE");
provided further, that the Assignee expressly agrees in writing to be bound by
the standstill and resale provisions of Sections 4.5 and 4.6 of the Stock
Purchase Agreement.
2.2 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and Investor.
3. MISCELLANEOUS.
3.1 Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties.
3.2 Governing Law. This Agreement shall be governed by and
construed under the internal laws of the State of California as applied to
agreements among California residents entered into and to be performed entirely
within California, without reference to principles of conflict of laws or choice
of laws.
3.3 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but which together
shall constitute one and the same instrument.
3
<PAGE> 4
3.4 Headings. The headings and captions used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement. All references in this Agreement to sections,
paragraphs, exhibits and schedules shall, unless otherwise provided, refer to
sections and paragraphs hereof and exhibits and schedules attached hereto, all
of which exhibits and schedules are incorporated herein by this reference.
3.5 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
deposit with the United States Post Office, by registered or certified mail,
postage prepaid and addressed to the party to be notified in the case of the
Company, at 555 Broadway, Redwood City, California 94063, attention: General
Counsel, with a copy to Mark C. Stevens, Fenwick & West LLP, Two Palo Alto
Square, Palo Alto, California 94306, or in the case of Investor, at 1840
Embarcadero Road, Palo Alto, California 94303, attention: Treasurer, with a copy
to: General Counsel or at such other address as any party may designate by
giving ten (10) days advance written notice to the other party.
3.6 Costs, Expenses. All costs in connection with the
preparation, execution, delivery and performance of this Agreement (including
costs of Investor) shall be borne by the Company.
3.7 Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision(s) shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision(s) were so excluded and shall be enforceable in
accordance with its terms.
3.8 Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties with respect to the subject matter
hereof and supersedes any and all prior negotiations, correspondence,
agreements, understandings, duties or obligations between the parties with
respect to the subject matter hereof.
3.9 Nasdaq Listing. The Company shall cause all shares of
Common Stock issuable to Investor pursuant to the terms hereof to be approved
for quotation on the Nasdaq National Market.
3.10 Further Assurances. From and after the date of this
Agreement, upon the request of Investor or the Company, the Company and Investor
shall execute and deliver such instruments, documents or other writings as may
be reasonably necessary or desirable to confirm and carry out and to effectuate
fully the intent and purposes of this Agreement.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
4
<PAGE> 5
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
THE COMPANY: INVESTOR:
- ------------ ---------
EXCITE, INC. INTUIT INC.
a California corporation a Delaware corporation
By: /s/ Robert C. Hood By: /s/ William Harris
------------------------------- ----------------------------------
Title: Executive VP, CAO/CFO Title: Exec. VP
---------------------------- -------------------------------
[SIGNATURE PAGE TO RIGHT OF FIRST REFUSAL AGREEMENT]
5
<PAGE> 1
EXHIBIT 4.11
AMENDMENT TO RESTATED AND AMENDED
INVESTORS' RIGHTS AGREEMENT
This Amendment to Restated and Amended Investors' Rights Agreement
(this "Amendment") is entered into as of June 25, 1997, by and among Excite,
Inc., a California corporation (the "Company") and the other persons and
entities whose names are set forth on the signature pages hereto. This Amendment
is intended to amend that certain Restated and Amended Investors' Rights
Agreement dated as of March 8, 1996, as amended on August 1, 1996 and November
25, 1996, by and among the Company and the investors listed on the signature
pages thereto (the "Rights Agreement").
RECITALS
A. On March 8, 1996, the Company entered into the Rights Agreement with certain
of its securities holders, which Rights Agreement was amended on August 1, 1996
and November 25, 1996.
B. Intuit Inc., a Delaware corporation ("Intuit") acquired 2,900,000 shares of
Common Stock of the Company (the "Purchased Shares") pursuant to a Stock
Purchase Agreement by and between the Company and Intuit, dated as of June 11,
1997 (the "Stock Purchase Agreement") and has the right to acquire additional
shares of Common Stock ("Anti-Dilution Shares") pursuant to the Right of First
Refusal Agreement between the Company and Intuit dated as of June 25, 1997.
C. In order to comply with the Stock Purchase Agreement, the Company and certain
Investors (as defined in the Rights Agreement) desire to amend the Rights
Agreement to provide for the inclusion of the Purchased Shares and Anti-Dilution
Shares as Registrable Securities (as defined in the Rights Agreement) thereunder
for the purposes of piggyback registration rights.
AGREEMENT
Now, Therefore, in consideration of the mutual promises and covenants set forth
herein, the Company and the Investors hereby agree that the Rights Agreement
shall be amended as follows:
1. Section 2.1 of the Rights Agreement is amended to add thereto a new
definition as follows:
"Intuit Registrable Securities. The term "Intuit Registrable
Securities" means the shares of Common Stock issued or issuable to Intuit Inc.,
a Delaware corporation ("Intuit") pursuant to (i) the Stock Purchase Agreement
dated as of June 11, 1997 between the Company and Intuit and (ii) the terms of
the Right of First Refusal Agreement dated as of June 25, 1997 between the
Company and Intuit.
2. Sections 2.1(b) and 2.1(d) of the Rights Agreement shall be amended
in their entirety as set forth below:
<PAGE> 2
"(b) Registrable Securities. The term "Registrable Securities"
means: all the shares of Common Stock of the Company issued or issuable (i) upon
conversion of any shares of Series A Stock issued under the Series A Agreement
or under the Preferred Stock Purchase Warrant dated August 2, 1995 issued by the
Company to Lighthouse Capital Partners, L.P., or (ii) upon conversion of any
shares of Series B Stock issued under the Series B Agreement or under the
Preferred Stock Purchase Warrant dated November 17, 1995 issued by the Company
to Lighthouse Capital Partners, L.P., or (iii) upon conversion of any shares of
Series C Stock issued under the Series C Agreement or (iv) upon exercise of
those Common Stock Purchase Warrants dated November 6, 1995 issued by the
Company under the Series B Agreement to those Investors indicated on Exhibit A
(the "Common Stock Purchase Warrants") or (v) upon conversion of any shares of
Series D Stock issued under the Series D Agreement or (vi) to Kevin Altis
pursuant to the Asset Acquisition Agreement or upon exercise of that certain
Stock Purchase Warrant issued to Kevin Altis pursuant to the Asset Acquisition
Agreement or (vii) to Julie Gomoll or Rachel Matthews, as shareholders of Go
Media, Inc., pursuant to that certain Agreement and Plan of Reorganization dated
July 31, 1996, by and between the Company, Go Media, Inc. and Julie Gomoll (the
"Merger Shares"), (viii) to Intuit pursuant to that certain Stock Purchase
Agreement dated as of June 11, 1997 between the Company and Intuit, whereby
Intuit purchased 2,900,000 shares of the Company's Common Stock, (ix) to Intuit
pursuant to that certain Right of First Refusal Agreement dated as of June 25,
1997 between the Company and Intuit or (x) to Tribune Company or any other party
other than AOL Ventures, Inc. pursuant to Section 8 of the Series D Agreement
(the "IPO Shares") that are now owned or may hereafter be acquired by any
Investor or any Investor's permitted successors and assigns, excluding any
securities previously sold to the public or held by a Holder (as defined below)
whose securities set forth in subsections (i) through (ix) herein may be sold in
any three month period without registration under the Securities Act pursuant to
Rule 144 of the Securities Act; provided, however, that notwithstanding anything
to herein to the contrary, the Purchased Shares shall not be Registrable Shares
for purposes of Sections 2.2, 2.4 or 3."
"(d) Holder. For purposes of this Section 2 and Sections 3 and 4
hereof, the term "Holder" means any person owning of record Registrable
Securities that have not been sold to the public or pursuant to Rule 144
promulgated under the Securities Act or any assignee of record of such
Registrable Securities to whom rights under this Section 2 have been duly
assigned in accordance with this Agreement; provided, however, that for purposes
of this Agreement, a record holder of shares of Series A Stock or Series B Stock
or Series C Stock or Series D Stock convertible into such Registrable Securities
shall be deemed to be the Holder of such Registrable Securities; provided,
further, that a holder of Purchased Shares shall not be a Holder with respect to
such Purchased Shares for purposes of Sections 2.2, 2.4 or 3; and provided,
further, that the Company shall in no event be obligated to register shares of
Series A Stock or Series B Stock or Series C Stock or Series D Stock or warrants
therefor or for Common Stock, and that Holders of Registrable Securities will
not be required to convert their shares of Series A Stock or Series B Stock or
Series C Stock or Series D Stock into Common Stock in order to exercise the
registration rights granted hereunder, until immediately before the closing of
the offering to which the registration relates."
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<PAGE> 3
3. The fourth sentence of Section 2.2(b) of the Rights Agreement shall
be amended to read in its entirety as follows:
"Notwithstanding any other provision of this Section 2.2, if the
underwriter(s) advise(s) the Company in writing that marketing factors
require a limitation of the number of securities to be underwritten
then the Company shall so advise all Holders of Registrable Securities
which would otherwise be registered and underwritten pursuant hereto,
and the number of Registrable Securities that may be included in the
underwriting shall be reduced as required by the underwriter(s) and
allocated among the Holders of Registrable Securities and the holders
of any AOL Registrable Securities and Intuit Registrable Securities
entitled to be included in such registration on a pro rata basis
according to the number of Registrable Securities, AOL Registrable
Securities and Intuit Registrable Securities then outstanding held by
each Holder requesting registration (including the Initiating Holders)
and each holder of AOL Registrable Securities and Intuit Registrable
Securities entitled to participate in such registration, respectively;
provided, however, that the number of Registrable Securities, AOL
Registrable Securities and Intuit Registrable Securities to be included
in any such underwriting and registration shall not be reduced unless
all other securities of the Company are first entirely excluded from
the underwriting and registration."
4. Section 2.3 of the Rights Agreement shall be amended to read in its
entirety as follows:
"2.3 Piggyback Registrations. The Company shall notify all Holders of
Registrable Securities in writing at least thirty (30) days prior to
filing any registration statement under the Securities Act for purposes
of effecting a public offering of securities of the Company (including,
but not limited to, registration statements relating to secondary
offerings of securities of the Company, but excluding registration
statements relating to any registration under Section 2.2 or 2.4 of
this Agreement or to any employee benefit plan or a corporate
reorganization) and will afford each such Holder an opportunity to
include in such registration statement all or any part of the
Registrable Securities then held by such Holder together with the
holders of any other securities and of the Company entitled to
inclusion in such registration, on a pro-rata basis. Each Holder
desiring to include in any such registration statement all or any part
of the Registrable Securities held by such Holder shall, within twenty
(20) days after receipt of the above-described notice from the Company,
so notify the Company in writing, and in such notice shall inform the
Company of the number of Registrable Securities such Holder wishes to
inched in such registration statement. If a Holder decides not to
request to include all of its Registrable Securities in any
registration statement thereafter filed by the Company, such Holder
shall nevertheless continue to have the right to include any
Registrable Securities in any subsequent registration statement or
registration statements as may be filed by the Company with respect to
offerings of its securities, all upon the terms and conditions set
forth herein. Notwithstanding the foregoing, the registration rights
granted to the Investors in this Section 2.3 shall not be applicable
with respect to any registrations
3
<PAGE> 4
effected under that certain Registration Rights Agreement dated as of
November 25, 1996, by and between Excite, AOL and AOL Ventures, Inc. or
under the Registration Rights Agreement dated as of June 25, 1997 by
and between Excite and Intuit."
5. All notices and other communications under the Rights Agreement
shall be made to Intuit Inc. at the addresses specified below and thereafter at
such other address, notice of which is given in accordance with Section 6.1 of
the Rights Agreement:
Intuit Inc.
1840 Embarcadero Road
Palo Alto, California 94303
Attention: Treasurer, with a copy to General Counsel
6. The Rights Agreement as modified herein shall remain in full force
and effect as so modified.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
EXCITE, INC.
By: /s/ Robert C. Hood
-------------------------------
Robert C. Hood
Executive Vice President, Chief
Administrative Officer and Chief
Financial Officer
INVESTORS:
INSTITUTIONAL VENTURE PARTNERS VI INSTITUTIONAL VENTURE MANAGEMENT VI
By: Its Managing General Partner
Institutional Venture Management VI
By: /s/ Geoffrey Y. Yang By: /s/ Geoffrey Y. Yang
-------------------------------------- ---------------------------------
Geoffrey Y. Yang, General Partner Geoffrey Y. Yang, General Partner
IVP FOUNDERS FUND I, L.P. KPCB INFORMATION SCIENCES ZAIBATSU
FUND II
By: Its General Partner By: Its General Partner
Institutional Venture Management VI KPCB VII Associates
By: /s/ Geoffrey Y. Yang By: /s/ Vinod Khosla
------------------------------------ ---------------------------------
Geoffrey Y. Yang, General Partner Vinod Khosla, General Partner
(SIGNATURE PAGE TO AMENDMENT TO RESTATED AND AMENDED INVESTORS' RIGHTS
AGREEMENT)
4
<PAGE> 5
KPCB VII FOUNDERS FUND KLEINER PERKINS CAUFIELD & BYERS VII
By: /s/ Vinod Khosla By: /s/ Vinod Khosla
--------------------------------- -------------------------------------
Vinod Khosla, General Partner Vinod Khosla, General Partner
Agreed and Accepted:
INTUIT INC. TRIBUNE COMPANY
By: /s/ William Harris By:
-------------------------------- ------------------------------------
(SIGNATURE PAGE TO AMENDMENT TO RESTATED AND AMENDED INVESTORS' RIGHTS
AGREEMENT)
<PAGE> 1
EXHIBIT 4.12
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of June 11, 1997 by and between EXCITE, INC., a California corporation
(the "Company") and INTUIT INC., a Delaware corporation (the "Investor").
W I T N E S S E T H:
WHEREAS, the Company desires to sell to Investor, and Investor desires
to purchase from the Company, shares of the Company's Common Stock on the terms
and conditions set forth in this Agreement;
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. AGREEMENT TO PURCHASE AND SELL STOCK. The Company agrees to sell to
Investor at the Closing, and Investor agrees to purchase from the Company at the
Closing, an aggregate of 2,900,000 shares of Common Stock, at a price of $13.50
per share. The shares of Common Stock purchased and sold pursuant to this
Agreement will be collectively hereinafter referred to as the "Purchased
Shares."
2. CLOSING.
2.1 The Closing. The purchase and sale of the Purchased Shares
will take place at the offices of Fenwick & West LLP, Two Palo Alto Square,
Suite 800, Palo Alto, California, at 10:00 a.m. Pacific Daylight Time, (i) with
respect to 1,000,000 of the Purchased Shares (the "Initial Shares") on June 25,
1997 or such later date following the satisfaction or waiver of all of the
conditions set forth in Sections 5.1 and 6.1 hereof or at such other time and
place as the Company and Investor mutually agree upon (which time and place are
referred to in this Agreement as the "First Closing"), and (ii) with respect to
the remaining Purchased Shares (the "Additional Shares") on or before two
business days following the satisfaction or waiver of all of the conditions set
forth in Sections 5.2 and 6.2 hereof or at such other time and place as the
Company and Investor mutually agree upon (which time and place are referred to
in this Agreement as the "Second Closing"). At the First Closing and the Second
Closing (as applicable), the Company will deliver to Investor a certificate
representing the number of Initial Shares or Additional Shares (as applicable)
that Investor has agreed to purchase hereunder at such closing against delivery
to the Company by Investor of the full purchase price of such Purchased Shares,
paid by (i) a check payable to the Company's order, (ii) wire transfer of funds
to the Company, or (iii) any combination of the foregoing.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to Investor that the statements in the following
paragraphs of this Section 3 are all true and correct:
<PAGE> 2
3.1 Organization, Good Standing and Qualification. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of California. The Company is qualified to do business as a foreign
corporation in each jurisdiction where failure to be so qualified would have a
material adverse effect on its financial condition, business, prospects or
operations.
3.2 Capitalization. Immediately prior to the Closing the
capitalization of the Company will consist of the following:
(a) Preferred Stock. A total of 4,000,000 authorized shares of
Preferred Stock, no par value per share (the "Preferred Stock"), consisting of
1,250,000, 700,000, 650,000 and 680,330 shares designated as Series E-1
Preferred Stock, Series E-2 Preferred Stock, Series E-3 Preferred Stock and
Series E-4 Preferred Stock, respectively (collectively, the "Series E Stock"),
of which 1,250,000 and 700,000 shares of Series E-1 Preferred Stock and Series
E-2 Preferred Stock, respectively, were issued and outstanding. The rights,
preferences and privileges of the Series E Stock are as stated in the Company's
Amended and Restated Articles of Incorporation (the "Restated Articles") and as
provided by law. The shares of Series E Stock are currently convertible into
Common Stock on a one-for-one basis.
(b) Common Stock. A total of 25,000,000 authorized shares of
Common Stock, no par value per share (the "Common Stock"), of which
approximately 12,370,633 shares were issued and outstanding as of May 31, 1997
(subject to increase only by employee stock option exercises subsequent to May
31, 1997). Subsequent to the Company's Annual Meeting of Shareholders on June
19, 1997, a total of 50,000,000 shares of Common Stock will be authorized.
(c) Options, Warrants, Reserved Shares. Except for: (i) the
conversion privileges of the Series E Stock, (ii) the approximately 3,750,626
shares of Common Stock issuable upon exercise of options outstanding as of May
31, 1997, including options granted subject to shareholder approval as the
Company's Annual Meeting of Shareholders to be held on June 19, 1997 (subject to
increase by grants of stock options subsequent to May 31, 1997), (iii) 297,500
shares of Common Stock reserved for issuance under the Company's 1996 Directors
Stock Option Plan and 1996 Employee Stock Purchase Plan, (iv) approximately
2,965,957 shares of Common Stock reserved for future grants or sale as of May
31, 1997 under the Company's 1996 Equity Incentive Plan, including shares
reserved for future grant subject to shareholder approval at the Company's
Annual Meeting of Shareholders to be held on June 19, 1997 (subject to change
due to termination of stock options and grants of stock options subsequent to
May 31, 1997), (v) 680,330 shares of Series E-4 Preferred Stock issuable to
America Online, Inc. upon exercise of an exchange right, (vi) a warrant to
purchase an aggregate of 650,000 shares of Series E-3 Preferred Stock and
warrants to purchase 9,451 shares of Common Stock, there are not outstanding any
options, warrants, rights (including conversion or preemptive rights) or
agreements for the purchase or acquisition from the Company of any shares of its
capital stock or any securities convertible into or ultimately exchangeable or
exercisable for any shares of the Company's capital stock.
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<PAGE> 3
3.3 Subsidiaries. Other then The McKinley Group, Inc., a Delaware
corporation, and Excite U.K. Limited, a United Kingdom corporation (the
"Subsidiaries"), the Company does not presently own or control, directly or
indirectly, any interest in any other corporation, partnership, trust, joint
venture, association, or other entity.
3.4 Due Authorization; No Violation. All corporate action on the
part of the Company and its officers, directors and shareholders necessary for
the authorization, execution and delivery of, and the performance of all
obligations of the Company under, this Agreement, and the authorization,
issuance, reservation for issuance and delivery of all of the Purchased Shares
being sold under this Agreement, has been taken or will be taken prior to the
Closing, and this Agreement constitutes a valid and legally binding obligation
of the Company, enforceable in accordance with its terms, except as may be
limited by (i) applicable bankruptcy, insolvency, reorganization or others laws
of general application relating to or affecting the enforcement of creditors'
rights generally and (ii) the effect of rules of law governing the availability
of equitable remedies. Neither the execution, delivery or performance by the
Company of this Agreement nor the consummation by the Company of the
transactions contemplated hereby will (i) conflict with or result in a breach of
any provision of the Restated Articles or the Company's Bylaws, (ii) cause a
default (or give rise to any right of termination, cancellation or acceleration)
under any of the terms, conditions or provisions of any agreement, instrument or
obligation to which the Company is a party, or (iii) violate any law, statute,
rule or regulation or judgment, order, writ, injunction or decree of any
governmental authority, in each case applicable to the Company or its properties
or assets.
3.5 Valid Issuance of Stock. The Purchased Shares, when issued, sold
and delivered in accordance with the terms of this Agreement for the
consideration provided for herein, will be duly and validly issued, fully paid
and nonassessable.
3.6 Registration Statement.
(a) A registration statement on Form S-1 (File No. 333-22669)
with respect to the Purchased Shares (the "Registration Statement"), including a
prospectus (the "Prospectus") which omits certain pricing information pursuant
to Rule 430A under the Securities Act of 1933, as amended (the "Act"), has been
prepared by the Company in conformity with the requirements of the Act, and the
applicable rules and regulations (the "Rules and Regulations") of the Securities
and Exchange Commission (the "Commission") under the Act and has been filed with
the Commission and declared effective on June 6, 1997;
(b) No order preventing or suspending the use of the
Registration Statement has been issued. The Registration Statement does not
include any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading at the time the Registration
Statement becomes effective and at all times subsequent thereto up to and on the
Closing; provided, however, that none of the representations and warranties
contained in this subparagraph (b) shall apply to information contained in or
omitted from the Registration Statement or Prospectus, or any amendment or
supplement thereto, in reliance upon, and in
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<PAGE> 4
conformity with, written information relating to the Investor furnished to the
Company by the Investor specifically for use in the preparation thereof. The
Registration Statement and the Prospectus, and any amendments or supplements
thereto, have contained and will continue to contain all material information
required to be included therein by the Act and the Rules and Regulations and
will in all material respects conform to the requirements of the Act and the
Rules and Regulations.
3.7 Governmental Consents. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state or local governmental authority on the part of
the Company is required in connection with the consummation of the transactions
contemplated by this Agreement, except for qualifications or filings under the
Act and the Rules and Regulations and all other applicable securities laws as
may be required in connection with the transactions contemplated by this
Agreement. All such qualifications will be effective on the Closing, and all
such filings be made within the time prescribed by law.
3.8 Absence of Changes. Subsequent to the respective dates as of
which information is given in the Registration Statement and Prospectus, there
has not been (i) any material adverse change in the condition (financial or
otherwise), earnings, operations, business or business prospects of the Company
and its Subsidiaries taken as a whole, (ii) any transaction that is material to
the Company and its Subsidiaries taken as a whole, except transactions entered
into in the ordinary course of business, (iii) any obligation, direct or
contingent, that is material to the Company and its Subsidiaries taken as a
whole incurred by the Company, except obligations incurred in the ordinary
course of business, (iv) any change in the capital stock or outstanding
indebtedness of the Company that is material to the Company and its Subsidiaries
taken as a whole, (v) any dividend or distribution of any kind declared, paid or
made on the capital stock of the Company, or (vi) any loss or damage (whether or
not insured) to the property of the Company which has been sustained or will
have been sustained which has a material adverse effect on the condition
(financial or otherwise), earnings, operations, business or business prospects
of the Company and its Subsidiaries taken as a whole.
3.9 Litigation. There is no action, suit, proceeding, claim,
arbitration or investigation ("Action") pending (or, to the best of the
Company's knowledge, currently threatened) against the Company, its activities,
properties or assets or, to the best of the Company's knowledge, against any
officer, director or employee of the Company in connection with such officer's,
director's or employee's relationship with, or actions taken on behalf of, the
Company which (i) might prevent the consummation of the transactions
contemplated hereby or (ii) is required to be disclosed in the Registration
Statement or Prospectus and is not so disclosed.
3.10 Agreements. There are no agreements, contracts, leases or
documents of the Company of a character required to be described or referred to
in the Registration Statement or Prospectus or to be filed as an exhibit to the
Registration Statement by the Act or the Rules and Regulations which have not
been accurately described in all material respects in the Registration Statement
or Prospectus or filed as exhibits to the Registration Statement.
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<PAGE> 5
3.11 Nasdaq Listing. The Common Stock is registered pursuant to
Section 12(g) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and is listed on the Nasdaq National Market. The Company has taken no
action designed to cause, or likely to result in, the termination of the
registration of the Common Stock under the Exchange Act or the delisting of the
Common Stock from the Nasdaq National Market, nor has the Company received any
notification that the Commission or the National Association of Securities
Dealers, Inc. is contemplating the termination of such registration or listing.
The Purchased Shares have been approved for quotation on the Nasdaq National
Market, subject to notice of issuance.
3.12 Exchange Act Filings. The Company has filed in a timely manner
all reports and other information required to be filed with the Commission
pursuant to the Exchange Act during the twelve calendar months and any portion
of a month immediately preceding the filing of the Registration Statement.
3.13 Hart-Scott-Rodino Act. The Company shall, if required under the
HSR Act (as defined below), promptly file any Notification and Report Forms and
related material that it may be required to file with the Federal Trade
Commission and the Antitrust Division of the United States Department of Justice
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "HSR Act"),
shall use its best efforts to obtain an early termination of the applicable
waiting period, and shall make any further filings or information submissions
pursuant thereto that may be necessary, proper or advisable.
4. REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF INVESTOR.
Investor hereby represents and warrants to, and agrees with, the Company, that:
4.1 Authorization. All corporate action on the part of Investor and
its officers, directors and stockholders necessary for the authorization,
execution and delivery of, and the performance of all obligations of Investor
under, this Agreement has been taken or will be taken prior to the Closing, and
this Agreement constitutes a valid and legally binding obligation of Investor,
enforceable in accordance with its terms, except as may be limited by (i)
applicable bankruptcy, insolvency, reorganization or others laws of general
application relating to or affecting the enforcement of creditors' rights
generally and (ii) the effect of rules of law governing the availability of
equitable remedies.
4.2 Purchase for Own Account. The Purchased Shares to be purchased
by Investor hereunder will be acquired for investment for Investor's own
account, not as a nominee or agent, and not with a current view to the public
resale or distribution thereof within the meaning of the Act, and Investor has
no present intention of selling, granting any participation in, or otherwise
distributing the same.
4.3 Disclosure of Information. Investor has received a copy of the
Registration Statement and has received or has had full access to all the
information it considers necessary or appropriate to make an informed investment
decision with respect to the Purchased Shares to be purchased by Investor under
this Agreement. Investor further has had an opportunity to ask questions and
receive answers from the Company regarding the terms
5
<PAGE> 6
and conditions of the offering of the Purchased Shares and to obtain additional
information (to the extent the Company possessed such information or could
acquire it without unreasonable effort or expense) necessary to verify any
information furnished to Investor or to which Investor had access. The
foregoing, however, does not in any way limit or modify the representations and
warranties made by the Company in Section 3.
4.4 Hart-Scott-Rodino Act. The Investor shall, if required under the
HSR Act, promptly file any Notification and Report Forms and related material
that it may be required to file with the Federal Trade Commission and the
Antitrust Division of the United States Department of Justice under the HSR Act,
shall use its best efforts to obtain an early termination of the applicable
waiting period, and shall make any further filings or information submissions
pursuant thereto that may be necessary, proper or advisable.
4.5 Standstill Obligation. Investor agrees that it will not, without
the approval of the Company's Board of Directors, acquire any additional shares
of the Company's Voting Securities (as defined below) in the open market or
otherwise if and to the extent such acquisition results in Investor and its
affiliates holding greater than 25% of the total Voting Securities. The
percentage limitation is referred to in this Section 4.5 as the "Standstill
Percentage." Notwithstanding the foregoing restriction:
(a) The Company shall promptly notify Investor in the event
that the Company enters into or intends to enter into any bona fide
discussions with any third party which the Company reasonably believes
will result in a Control Transaction (as defined below).
Notwithstanding the foregoing, the Company will provide notice to
Investor at least ten calendar days prior to entering into a binding
definitive agreement with respect to a Control Transaction, and will
further notify Investor after such discussions terminate. Investor's
obligation hereunder shall not be in effect for the duration of any
such discussions. The Investor acknowledges that such discussions may
constitute material inside information that will prevent open market
purchases or sales until a public announcement of such discussions.
(b) In the event of any person's or entity's acquisition of
Voting Securities from the Company or, from third parties or in the
open market, the Standstill Percentage will be increased to the
percentage of the Company's total Voting Securities held by such person
or entity immediately following such acquisition. The Company shall
promptly provide Investor with written notice of any such acquisition
of Voting Securities described in this paragraph (b).
(c) Investor's obligations under this Section 4.5 shall
terminate upon the making of a bona fide offer by any third party or
group (within the meaning of Rule 13d-5 under the Securities Exchange
Act of 1934, as amended) of an intention to acquire Voting Securities
of the Company which, if successful, would result in such party or
group owning or having the right to acquire beneficial ownership of
more than twenty percent (20%) of the Company's Voting
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Securities. Upon becoming aware of such an intention by any third party
or group, the Company shall promptly provide Investor with written
notice of any such intention by any third party or group.
(d) Investor shall not be obligated to dispose of any Voting
Securities if the aggregate percentage of the Total Securities
beneficially owned by Investor is increased as a result of a
recapitalization, reclassification or other restructuring of the
Company or a repurchase of securities by the Company or any other
action taken by the Company.
In the event that Investor is permitted to acquire additional shares of
the Company's Voting Securities pursuant to the provisions of this Section 4.5
which results in Investor and its affiliates holding greater than 25% of the
total Voting Securities, the Standstill Percentage shall be increased to the
percentage of Voting Securities so held by Investor, provided, however, that the
Standstill Percentage shall immediately be reduced to 25% at such time as
Investor and its affiliates hold 25% or less of the total Voting Securities.
For purposes of this Section 4.5:
"Control Transaction" shall mean any merger, share exchange or
other acquisition (or series of related transactions of such nature) as
a result of which the holders of Voting Securities of the Company
immediately prior thereto continue to own beneficially Voting
Securities representing less than 50% of the Voting Securities of the
Company (or any successor entity) immediately thereafter.
"Voting Securities" shall mean the shares of Common Stock and
Preferred Stock of the Company, and in addition, any other securities
of the Company convertible into or exercisable for Common Stock which
have a conversion or exercise price less than the market price of the
Company's Common Stock at the time any additional share of Common Stock
or other Company securities are acquired.
The covenants set forth in this Section 4.5 shall expire on or
the earlier to occur of (i) 42 months from the date of this Agreement and (ii)
the termination of the standstill obligations of America Online, Inc. originally
set forth in Section 9 of the Series D Preferred Stock Purchase Agreement dated
as of March 8, 1996 by and among the Company and the Investors listed therein
(and the Company shall provide prompt written notice to Investor of such
termination).
4.6 Resale Restrictions. Investor agrees that it will not,
without the prior written consent of the Company, for a period of eighteen (18)
months following the date of this Agreement, directly or indirectly offer, sell,
contract to sell or otherwise dispose of or otherwise transfer (a "Disposition")
the economic risk of ownership of the Purchased Shares, or any other securities
of the Company owned by it. Subsequent to such eighteen (18) month period and
until the date that is three (3) years from the date of this Agreement, Investor
will not, without the prior written consent of the Company, effect a Disposition
of any of the Purchased Shares or of any other securities of the Company owned
by it on any one trading day in an amount in excess
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of five percent (5%) of the total trading volume for the five (5) consecutive
trading days ended on the date immediately prior to the date of such sale
(without taking into consideration any shares sold by Investor); provided,
however, that such restriction shall not apply to any sales of such shares in
(i) a private transaction not effected on the Nasdaq National Market or any
other stock exchange or automated quotation system, or (ii) an underwritten
public offering of such shares. The foregoing restrictions shall not apply
during any period of time that Investor's "standstill" obligations set forth in
Section 4.5 are not in effect as a result of (or would not be in effect if the
covenants contained in Section 4.5 had not terminated by operation of the last
sentence of such Section 4.5) the provisions of paragraphs (a) or (c) of such
Section 4.5.
5. CONDITIONS TO INVESTOR'S OBLIGATIONS AT CLOSING.
5.1 First Closing. The obligations of Investor under Section 2 of
this Agreement to purchase the Initial Shares at the First Closing are subject
to the fulfillment or waiver, on or before the Closing, of each of the following
conditions, and the Company shall use its best efforts to cause such conditions
to be satisfied on or before the First Closing:
5.1.1 Representations and Warranties True. Each of the
representations and warranties of the Company contained in Section 3 shall be
true and correct on and as of the First Closing with the same effect as though
such representations and warranties had been made on and as of the date of the
First Closing.
5.1.2 Performance. The Company shall have performed and complied
with all agreements, obligations and conditions contained in this Agreement that
are required to be performed or complied with by it on or before the First
Closing and shall have obtained all approvals, consents and qualifications
necessary to complete the purchase and sale described herein.
5.1.3 Compliance Certificate. The Company shall have delivered
to Investor at the First Closing a certificate signed on its behalf by its
President, Chief Executive Officer, or Chief Financial Officer certifying that
the conditions specified in Sections 5.1.1 and 5.1.2 have been fulfilled and
stating that there shall have been no material adverse change in the business,
affairs, prospects, operations, properties, assets or condition of the Company
not previously disclosed to Investor in writing.
5.1.4 Registration; Securities Exemptions. The offer and sale of
the Initial Shares to Investor pursuant to this Agreement shall be registered
under the 1933 Act and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or are pending or threatened, and shall be
exempt from the qualification requirements of the California Corporate
Securities Law of 1968, as amended, and the rules thereunder (the "Law") and the
registration and/or qualification requirements of all other applicable state
securities laws.
5.1.5 Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the First
Closing and all documents incident thereto shall be reasonably satisfactory in
form and substance to Investor and to Investor's special
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counsel, and they shall each have received all such counterpart originals and
certified or other copies of such documents as they may reasonably request. Such
documents shall include (but not be limited to) the following:
(a) Certified Charter Documents. A copy of the Restated
Articles and the Bylaws of the Company (as amended through the date of the First
Closing), certified by the Secretary of the Company as true and correct copies
thereof as of the First Closing.
(b) Corporate Actions. A copy of the resolutions of the
Board of Directors evidencing the approval of this Agreement, the issuance of
the Purchased Shares and the other matters contemplated hereby.
5.1.6 No Material Change. There shall have been no material
adverse change in the business, affairs, prospects, operations, properties,
assets or condition of the Company.
5.1.7 Hart-Scott-Rodino Act. All applicable waiting periods (and
all extensions thereof) under the HSR Act shall have expired or otherwise been
terminated.
5.1.8 Letter Agreement. Either (i) the Company shall have
executed and delivered a definitive agreement (the "Definitive Agreement")
incorporating the terms of the Binding Letter Agreement dated June 11, 1997
between the Company and Investor (the "Letter Agreement") in the form attached
hereto as Exhibit A or if the Definitive Agreement has not been so executed and
delivered, the Company and Investor shall continue to be negotiating the
Definitive Agreement in good faith.
5.1.9 Nasdaq Listing. The Initial Shares shall have been
approved for quotation on the Nasdaq National Market, subject to notice of
issuance.
5.1.10 Final Prospectus, Prospectus Supplement, Etc. The Company
shall have delivered to Investor a final prospectus which contains the pricing
and other terms omitted from the Registration Statement on the date the
Registration Statement became effective. Any required prospectus supplement
shall have been filed, or any required Post-Effective Amendment to the
Registration Statement shall have been filed and declared effective, with the
Securities and Exchange Commission.
5.2 SECOND CLOSING. The obligations of Investor under Section 2 of
this Agreement to purchase the Additional Shares at the Second Closing are
subject to the fulfillment or waiver, on or before the Closing, of each of the
following conditions, and the Company shall use its best efforts to cause such
conditions to be satisfied on or before the Second Closing:
5.2.1 Representations and Warranties True. Each of the
representations and warranties of the Company contained in Section 3 shall be
true and correct on and as of the Second Closing with the same effect as though
such representations and warranties had been made on and as of the date of the
Second Closing.
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5.2.2 Performance. The Company shall have performed and complied
with all agreements, obligations and conditions contained in this Agreement that
are required to be performed or complied with by it on or before the Second
Closing and shall have obtained all approvals, consents and qualifications
necessary to complete the purchase and sale described herein.
5.2.3 Compliance Certificate. The Company shall have delivered
to Investor at the Second Closing a certificate signed on its behalf by its
President, Chief Executive Officer, or Chief Financial Officer certifying that
the conditions specified in Sections 5.2.1 and 5.2.2 have been fulfilled and
stating that there shall have been no material adverse change in the business,
affairs, prospects, operations, properties, assets or condition of the Company
not previously disclosed to Investor in writing.
5.2.4 Registration; Securities Exemptions. The offer and sale of
the Additional Shares to Investor pursuant to this Agreement shall be registered
under the 1933 Act and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or are pending or threatened, and shall be
exempt from the qualification requirements of the Law and the registration
and/or qualification requirements of all other applicable state securities laws.
5.2.5 Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the Second
Closing and all documents incident thereto shall be reasonably satisfactory in
form and substance to Investor and to Investor's special counsel, and they shall
each have received all such counterpart originals and certified or other copies
of such documents as they may reasonably request. Such documents shall include
(but not be limited to) the following:
(a) Certified Charter Documents. A copy of the Restated
Articles and the Bylaws of the Company (as amended through the date of the
Second Closing), certified by the Secretary of the Company as true and correct
copies thereof as of the Second Closing.
(b) Corporate Actions. A copy of the resolutions of the
Board of Directors evidencing the approval of this Agreement, the issuance of
the Purchased Shares and the other matters contemplated hereby.
In the event that the documents listed in Sections 5.2.5(a)
and 5.2.5(b) above have not been amended since the date of the First Closing,
the Company may, in lieu of providing such documents, deliver a certificate
signed by its Secretary to the effect that such documents have not been amended
or rescinded subsequent to the date of the First Closing and that such documents
remain in full force and effect.
5.2.6 No Material Change. There shall have been no material
adverse change in the business, affairs, prospects, operations, properties,
assets or condition of the Company.
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5.2.7 Nomination and Observer Agreement. The Company shall have
executed and delivered a letter agreement in the form attached hereto as Exhibit
B (the "Nomination and Observer Agreement").
5.2.8 Registration Rights Agreement. The Company shall have
executed and delivered the Registration Rights Agreement in the form attached
hereto as Exhibit C (the "Registration Rights Agreement").
5.2.9 Right of First Refusal Agreement. The Company shall have
executed and delivered the Right of First Refusal Agreement in the form attached
hereto as Exhibit D (the "Right of First Refusal Agreement").
5.2.10 Nasdaq Listing. The Additional Shares shall have been
approved for quotation on the Nasdaq National Market, subject to notice of
issuance.
5.2.11 Final Prospectus, Prospectus Supplement, Etc. The Company
shall have delivered to Investor a final prospectus which contains the pricing
and other terms omitted from the Registration Statement on the date the
Registration Statement became effective. Any required prospectus supplement
shall have been filed, or any required Post-Effective Amendment to the
Registration Statement shall have been filed and declared effective, with the
Securities and Exchange Commission.
5.2.12 Amendment to Investors' Rights Agreement. The Amendment
to Restated and Amended Investors' Rights Agreement in the form attached hereto
as Exhibit E (the "Amendment") shall have been executed and delivered by the
Company and the holders of at least a majority of the Registrable Securities (as
defined in the Restated and Amended Investors' Rights Agreement dated as of
March 8, 1996, by and among the Company and the Investors named therein, as
amended through November 25, 1996).
5.2.13 Definitive Agreement. The Company shall have executed and
delivered the Definitive Agreement, or substantive content owned by Investor has
been available on the Excite network with the consent of Investor for sixty (60)
days; provided, however, that in the event that the Company shall not have
executed and delivered the Definitive Agreement, the parties shall continue to
by bound by the Letter Agreement.
6. CONDITIONS TO THE COMPANY'S OBLIGATIONS AT CLOSING.
6.1. First Closing. The obligations of the Company under this
Agreement to sell the Initial Shares to Investor at the First Closing are
subject to the fulfillment or waiver on or before the First Closing of each of
the following conditions by Investor, and Investor shall use its best efforts to
cause such conditions to be satisfied on or before the First Closing:
6.1.1 Representations and Warranties. The representations and
warranties of Investor contained in Section 4 shall be true and correct on the
date of the First Closing with the same effect as though such representations
and warranties had been made on and as of the First Closing.
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6.1.2 Payment of Purchase Price. Investor shall have delivered
to the Company the purchase price for the Initial Shares specified for Investor
in Section 1 hereof in accordance with the provisions of Section 2.
6.1.3 Registration; Securities Exemptions. The offer and sale of
the Initial Shares to Investor pursuant to this Agreement shall be registered
under the 1933 Act and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or are pending or threatened, and shall be
exempt from the qualification requirements of the Law and the registration
and/or qualification requirements of all other applicable state securities laws.
6.1.4 Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the First
Closing and all documents incident thereto shall be reasonably satisfactory in
form and substance to the Company and to the Company's legal counsel, and the
Company shall have received all such counterpart originals and certified or
other copies of such documents as it may reasonably request.
6.1.5 Hart-Scott-Rodino Act. All applicable waiting periods (and
all extensions thereof) under the HSR Act shall have expired or otherwise been
terminated.
6.1.6 Letter Agreement. Either (i) the Investor shall have
executed and delivered the Definitive Agreement or (ii) if the Definitive
Agreement has not been so executed and delivered, the Company and Investor shall
continue to be negotiating the Definitive Agreement in good faith.
6.1.7 Nasdaq Listing. The Initial Shares shall have been
approved for quotation on the Nasdaq National Market, subject to notice of
issuance.
6.1.8 Final Prospectus, Prospectus Supplement, Etc. The Company
shall have delivered to Investor a final prospectus which contains the pricing
and other terms omitted from the Registration Statement on the date the
Registration Statement became effective. Any required prospectus supplement
shall have been filed, or any required Post-Effective Amendment to the
Registration Statement shall have been filed and declared effective, with the
Securities and Exchange Commission.
6.2 Second Closing. The obligations of the Company under this
Agreement to sell the Additional Shares to Investor at the Second Closing are
subject to the fulfillment or waiver on or before the Second Closing of each of
the following conditions by Investor, and Investor shall use its best efforts to
cause such conditions to be satisfied on or before the Second Closing:
6.2.1 Representations and Warranties. The representations and
warranties of Investor contained in Section 4 shall be true and correct on the
date of the Second Closing with the same effect as though such representations
and warranties had been made on and as of the Second Closing.
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6.2.2 Payment of Purchase Price. Investor shall have delivered
to the Company the purchase price for the Additional Shares specified for
Investor in Section 1 hereof in accordance with the provisions of Section 2.
6.2.3 Registration; Securities Exemptions. The offer and sale of
the Additional Shares to Investor pursuant to this Agreement shall be registered
under the 1933 Act and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or are pending or threatened, and shall be
exempt from the qualification requirements of the Law and the registration
and/or qualification requirements of all other applicable state securities laws.
6.2.4 Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the Second
Closing and all documents incident thereto shall be reasonably satisfactory in
form and substance to the Company and to the Company's legal counsel, and the
Company shall have received all such counterpart originals and certified or
other copies of such documents as it may reasonably request.
6.2.5 Nomination and Observer Agreement. The Investor shall have
executed and delivered the Nomination and Observer Agreement.
6.2.6 Registration Rights Agreement. The Investor shall have
executed and delivered the Registration Rights Agreement.
6.2.7 Right of First Refusal Agreement. The Investor shall have
executed and delivered the Right of First Refusal Agreement.
6.2.8 Nasdaq Listing. The Additional Shares shall have been
approved for quotation on the Nasdaq National Market, subject to notice of
issuance.
6.2.9 Final Prospectus, Prospectus Supplement, Etc. The Company
shall have delivered to Investor a final prospectus which contains the pricing
and other terms omitted from the Registration Statement on the date the
Registration Statement became effective. Any required prospectus supplement
shall have been filed, or any required Post-Effective Amendment to the
Registration Statement shall have been filed and declared effective, with the
Securities and Exchange Commission.
6.2.10 Amendment to Investors' Rights Agreement. The Investor
shall have executed and delivered the Amendment.
7. MISCELLANEOUS.
7.1 Survival of Warranties. The representations, warranties and
covenants of the Company and Investor contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement and the
First Closing and Second Closing and shall in no way be affected by any
investigation of the subject matter thereof made by or on behalf of Investor,
its counsel or the Company, as the case may be.
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7.2 Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties.
7.3 Governing Law. This Agreement shall be governed by and construed
under the internal laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California, without reference to principles of conflict of laws or choice of
laws.
7.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7.5 Headings. The headings and captions used in this Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Agreement. All references in this Agreement to sections,
paragraphs, exhibits and schedules shall, unless otherwise provided, refer to
sections and paragraphs hereof and exhibits and schedules attached hereto, all
of which exhibits and schedules are incorporated herein by this reference.
7.6 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
deposit with the United States Post Office, by registered or certified mail,
postage prepaid and addressed to the party to be notified in the case of the
Company, at 555 Broadway, Redwood City, California 94063, attention: General
Counsel, with a copy to Mark C. Stevens, Fenwick & West LLP, Two Palo Alto
Square, Palo Alto, California 94306, or in the case of Investor, at 1840
Embarcadero Road, Palo Alto, California 94303, attention: Treasurer, with a copy
to: General Counsel, or at such other address as any party may designate by
giving ten (10) days advance written notice to the other party.
7.7 No Finder's Fees. Each party represents that it neither is nor
will be obligated for any finder's or broker's fee or commission in connection
with this transaction, other than the anticipated reimbursement by the Company
of up to $200,000.00 in expenses incurred by Robertson, Stephens & Company LLC
and Merrill Lynch, Pierce, Fenner & Smith Incorporated. Investor agrees to
indemnify and to hold harmless the Company from any liability for any commission
or compensation in the nature of a finders' or broker's fee (and any asserted
liability) for which Investor or any of its officers, partners, employees, or
representatives is responsible. The Company agrees to indemnify and hold
harmless Investor from any liability for any commission or compensation in the
nature of a finder's or broker's fee (and any asserted liability) for which the
Company or any of its officers, employees or representatives is responsible.
7.8 Costs, Expenses. All costs in connection with the preparation,
execution delivery and performance of this Agreement (including Investor's
costs, which include, without limitation, reasonable attorney fees but other
than any required filing fees under the HSR Act (the cost of which HSR Act
filing fees shall be shared equally between the Company and Investor) shall be
borne by the Company from the proceeds from the Purchased Shares.
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7.9 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and Investor. Any
amendment or waiver effected in accordance with this Section shall be binding
upon each holder of any Purchased Shares at the time outstanding, each future
holder of such securities, and the Company.
7.10 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provision(s) shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision(s) were so excluded and shall be enforceable in
accordance with its terms.
7.11 Entire Agreement. This Agreement, together with any exhibits or
schedules hereto, constitutes the entire agreement and understanding of the
parties with respect to the subject matter hereof and supersedes any and all
prior negotiations, correspondence, agreements, understandings duties or
obligations between the parties with respect to the subject matter hereof.
7.12 Further Assurances. From and after the date of this Agreement,
upon the request of Investor or the Company, the Company and Investor shall
execute and deliver such instruments, documents or other writings as may be
reasonably necessary or desirable to confirm and carry out and to effectuate
fully the intent and purposes of this Agreement.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
THE COMPANY: INVESTOR:
- ------------ ---------
Excite, Inc. Intuit Inc.
a California corporation a Delaware corporation
By: /s/ Robert C. Hood By: /s/ William Harris
------------------------------- -------------------------------------
Title: Executive VP, CAO/CFO Title: Exec. VP
---------------------------- ----------------------------------
[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]
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EXHIBIT 5.01
July 25, 1997
Excite, Inc.
555 Broadway
Redwood City, California 94063
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form
S-3 (the "Registration Statement") to be filed by you with the Securities and
Exchange Commission on or about July 25, 1997 in connection with the
registration under the Securities Act of 1933, as amended, of an aggregate of
2,900,000 shares of your Common Stock (the "Stock"), all of which will be sold
by Intuit, Inc. ("Intuit").
In rendering this opinion, we have examined the following:
(1) the Registration Statement, together with the exhibits filed
as a part thereof, including, without limitation, the
Prospectus associated therewith;
(2) the Stock Purchase Agreement dated as of June 11, 1997 between
Excite, Inc. (the "Company") and Intuit (the "Stock Purchase
Agreement");
(3) the minutes of meetings and actions by written consent of the
Board of Directors of the Company relating to the Stock
Purchase Agreement and the issuance of the Stock to Intuit;
(4) a list of shareholders provided by First Boston EquiServe LLC,
dated May 31, 1997 and a list of option and warrant holders
dated May 31, 1997, provided by you;
(5) the Articles of Incorporation of the Company as amended
through June 24, 1997 and the Bylaws of the Company both
certified by the Secretary of the Company on July 25, 1997;
and
(6) a Management Certificate of even date herewith in which you
have given us certain factual representations.
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to the legal capacity of all natural persons,
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.
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Page 2
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 investigation or other attempt 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 the 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 Stock and is not to be relied upon for any other purpose.
Very truly yours,
/s/ FENWICK & WEST LLP
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EXHIBIT 23.01
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement (Form S-3) of Excite, Inc. for the registration of
2,900,000 shares of its common stock and to the incorporation by reference
therein of our report dated January 29, 1997, with respect to the consolidated
financial statements of Excite, Inc. included in its annual report on Form 10-K,
as amended by Form 10-K/A, for the year ended December 31, 1996, filed with the
Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Palo Alto, California
July 24, 1997
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EXHIBIT 23.02
CONSENT OF PRICE WATERHOUSE LLP, INDEPENDENT ACCOUNTANTS
We hereby consent to the use in the Prospectus constituting part of
this Registration Statement on Form S-3 of our report dated August 6, 1996,
relating to the financial statements of The McKinley Group, Inc. which do not
appear in the Prospectus. We also consent to the reference to us under the
heading "Experts" in such Prospectus.
/s/ PRICE WATERHOUSE LLP
San Jose, California
July 24, 1997
