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As filed with the Securities and Exchange Commission on March 4, 1998
REGISTRATION NO. 333-46829
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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PRE-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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EXCITE, INC.
(Exact name of Registrant as specified in its charter)
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CALIFORNIA 77-0378215
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
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555 BROADWAY
REDWOOD CITY, CALIFORNIA 94063
(650) 568-6000
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
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ROBERT C. HOOD
EXECUTIVE VICE PRESIDENT, CHIEF ADMINISTRATIVE OFFICER
AND CHIEF FINANCIAL OFFICER
EXCITE, INC.
555 BROADWAY
REDWOOD CITY, CALIFORNIA 94063
(650) 568-6000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
MARK C. STEVENS, ESQ.
JEFFREY R. VETTER, ESQ.
FENWICK & WEST LLP
TWO PALO ALTO SQUARE
PALO ALTO, CALIFORNIA 94306
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: FROM TIME TO
TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT UNTIL FEBRUARY 3,
2000 OR UNTIL THE EARLIER SALE OF ALL SHARES REGISTERED HEREUNDER.
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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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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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:
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Securities and Exchange Commission registration fee..........................................$ 50,128.16
Accounting fees and expenses................................................................. 5,000.00
Legal fees and expenses...................................................................... 30,000.00
Miscellaneous................................................................................ 14,871.84
Total...................................................................................$100,000.00
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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
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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.
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ITEM 16. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made pursuant to this Registration Statement, 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 (the "Securities Act");
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement (notwithstanding the foregoing, any increase or
decrease in volume or 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); and
(iii) to include any material information with
respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such
information in the Registration Statement; provided, however,
that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective
amendment by paragraphs (1)(i) or (1)(ii) is contained in any
periodic report filed with or furnished to the Securities and
Exchange Commission by the Registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each post-effective amendment shall be deemed 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.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d) of
the Exchange Act) that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered herein, 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.
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ITEM 17. EXHIBITS.
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EXHIBIT
NUMBER EXHIBIT TITLE
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2.01 - Agreement and Plan of Reorganization, dated as of January 15, 1998, by and among the
Registrant, XCite Acquisition Corporation, Matchlogic, TL Ventures III, L.P., TL Ventures
III Offshore, TL Ventures III Interfund L.P., Sequel Limited Partnership, Sequel Euro
Limited Partnership, Internet Capital Group, L.L.C., Data Strategies, Inc. and Gary
Anderson.(1)
2.02 - Agreement and Plan of Reorganization, dated October 30, 1997, by and among the Registrant,
Excite Merger Corporation, Netbot, Eric Zochner and Dan Campi.(2)
3.01 - Articles of Incorporation of Registrant, as amended.(3)
4.01 - Form of Specimen Certificate for Registrant's Common Stock.(4)
4.02 - Bylaws of Registrant, as amended.(5)
4.03 - Registration Rights Agreement, dated as of February 3, 1998, by and between the Registrant
and the stockholders and the holders of issued and outstanding warrants of Matchlogic.+
4.04 - Registration Rights Agreement, dated as of October 30, 1997, by and between the Registrant
and the parties listed on Exhibit A thereto.+
5.01 - Opinion of Fenwick & West LLP.
23.01 - Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 - Consent of Ernst & Young LLP, Independent Auditors.+
23.03 - Consent of Price Waterhouse LLP, Independent Accountants.+
24.01 - Power of Attorney (see page II-5).+
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* To be filed by amendment.
+ Previously filed.
(1) Previously filed with the Commission on February 17, 1998 as an exhibit
to the Registrant's Form 8-K (File No. 000-28064).
(2) Previously filed with the Commission on December 4, 1997 as an exhibit
to the Registrant's Form 8-K (File No. 000-28064).
(3) Previously filed with the Commission on July 3, 1996 as an exhibit to
the Registrant's Registration Statement on Form S-8 (File No.
333-07625).
(4) 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).
(5) Previously filed with the Commission on March 11, 1996 as an exhibit to
the Registrant's Registration Statement on Form SB-2 (File No.
333-2328-LA).
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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 2nd day
of March, 1998.
EXCITE INC.
By: /s/ ROBERT C. HOOD
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Robert C. Hood
Executive Vice President, Chief
Administrative and Chief Financial
Officer
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.
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SIGNATURE TITLE DATE
- --------- ----- ----
PRINCIPAL EXECUTIVE OFFICER:
* President, Chief Executive March 2, 1998
- ------------------------------------ Officer and Director
George Bell
PRINCIPAL FINANCIAL AND
ACCOUNTING OFFICER:
/s/ ROBERT C. HOOD Executive Vice President, Chief March 2, 1998
- ------------------------------------ Administrative Officer and
Robert C. Hood Chief Financial Officer
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ADDITIONAL DIRECTORS:
/s/ * Senior Vice President and March 2, 1998
- ------------------------------------ Director
Joseph R. Kraus
Director
- ------------------------------------
Vinod Khosla
/s/ * Director March 2, 1998
- ------------------------------------
Donn Davis
/s/ * Director March 2, 1998
- ------------------------------------
Geoffrey Y. Yang
* /s/ ROBERT C. HOOD Attorney-in-Fact March 2, 1998
- ------------------------------------
Robert C. Hood
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EXHIBIT INDEX
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EXHIBIT
NUMBER EXHIBIT TITLE
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2.01 - Agreement and Plan of Reorganization, dated as of January 15, 1998, by and among the
Registrant, XCite Acquisition Corporation, Matchlogic, TL Ventures III, L.P., TL Ventures
III Offshore, TL Ventures III Interfund L.P., Sequel Limited Partnership, Sequel Euro
Limited Partnership, Internet Capital Group, L.L.C., Data Strategies, Inc. and Gary
Anderson.(1)
2.02 - Agreement and Plan of Reorganization, dated October 30, 1997, by and among the Registrant,
Excite Merger Corporation, Netbot, Eric Zochner and Dan Campi.(2)
3.01 - Articles of Incorporation of Registrant, as amended.(3)
4.01 - Form of Specimen Certificate for Registrant's Common Stock.(4)
4.02 - Bylaws of Registrant, as amended.(5)
4.03 - Registration Rights Agreement, dated as of February 3, 1998, by and between the Registrant
and the stockholders and the holders of issued and outstanding warrants of Matchlogic.+
4.04 - Registration Rights Agreement, dated as of October 30, 1997, by and between the Registrant
and the parties listed on Exhibit A thereto.+
5.01 - Opinion of Fenwick & West LLP.
23.01 - Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 - Consent of Ernst & Young LLP, Independent Auditors.+
23.03 - Consent of Price Waterhouse LLP, Independent Accountants.+
24.01 - Power of Attorney (see page II-5).+
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* To be filed by amendment.
+ Previously filed.
(1) Previously filed with the Commission on February 17, 1998 as an exhibit
to the Registrant's Form 8-K (File No. 000-28064).
(2) Previously filed with the Commission on December 4, 1997 as an exhibit
to the Registrant's Form 8-K (File No. 000-28064).
(3) Previously filed with the Commission on July 3, 1996 as an exhibit to
the Registrant's Registration Statement on Form S-8 (File No.
333-07625).
(4) 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).
(5) Previously filed with the Commission on March 11, 1996 as an exhibit to
the Registrant's Registration Statement on Form SB-2 (File No.
333-2328-LA).
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EXHIBIT 5.01
March 3, 1998
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 (the "Commission") on or about February 24, 1998 in
connection with the registration under the Securities Act of 1933, as amended,
of an aggregate of 3,998,258 shares of Common Stock (the "Common Stock") of
Excite Inc., a California corporation (the "Company"), 3,912,587 of which shares
are presently issued and outstanding (the "Outstanding Shares") and 85,671 of
which are subject to warrants (the "Warrants") assumed by the Company (the
"Warrant Shares"), and will be sold by certain selling shareholders named in the
Registration Statement (the "Selling Shareholders").
In rendering this opinion, we have examined the following:
(1) the Registration Statement, together with the Exhibits filed
as a part thereof;
(2) the Prospectus prepared in connection with the Registration
Statement;
(3) the Amended and Restated Articles of Incorporation of the
Company, certified by the California Secretary of State on
January 13, 1998;
(4) the Bylaws of the Company certified by the Company on February
2, 1998;
(5) the minutes of the meeting of the Board of Directors of the
Company held on October 28, 1997 relating to the acquisition
of Netbot, Inc., a Delaware corporation ("Netbot") that are in
our possession;
(6) the action by written consent of the Board of Directors of the
Company relating to the acquisition of MatchLogic, Inc., a
Delaware corporation ("MatchLogic") that is in our possession;
(7) the stock records for the Company that you have provided to us
(consisting of a list of shareholders dated January 31, 1998
issued by your transfer agent, and a schedule of outstanding
options and warrants to purchase the Company's capital stock
that was prepared by the Company and dated as of January 31,
1998);
(8) the Agreement and Plan of Reorganization dated October 30,
1997 among the Company, Excite Merger Corporation, a Delaware
corporation ("Sub") and Netbot;
(9) the Agreement and Plan of Reorganization dated as of January
15, 1998 by and among MatchLogic, the Company, XCite
Acquisition Corporation, TL Ventures III, L.P., TL Ventures
III Offshore, TL Ventures III Interfund, Sequel Limited
Partnership, Sequel Euro Limited Partnership, Internet Capital
Group, L.L.C., Data Strategies, Inc. and Gary Anderson;
(10) the Warrants; and
(11) your registration statement on Form 8-A (File Number 0-28064)
filed with the Commission on March 15, 1996, together with the
order of effectiveness issued by the Commission therefor on
April 3, 1996;
(12) a Management Certificate addressed to us and dated of even
date herewith executed by the Company containing certain
factual and other representations.
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We have also confirmed the continued effectiveness of the Company's
registration under the Securities Exchange Act of 1934, as amended, by telephone
call to the offices of the Commission.
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies, the legal capacity of all natural persons executing the same, the lack
of any undisclosed terminations, modifications, waivers or amendments to any
documents reviewed by us and the due execution and delivery of all documents
where due execution and delivery are prerequisites to the effectiveness thereof.
As to matters of fact relevant to this opinion, we have relied solely
upon our examination of the documents referred to above and have assumed the
current accuracy and completeness of the information obtained from records
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:
1) the Outstanding Shares to be sold by the Selling Shareholders
pursuant to the Registration Statement are validly issued,
fully paid and nonassessable; and
2) the Warrant Shares, when issued in accordance with the terms
of the applicable Warrant, and in the manner referred to in
the Prospectus associated with the Registration Statement,
will be validly 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 we assume no obligation to
update this opinion should circumstances change after the date hereof. This
opinion is intended solely for your use as an exhibit to the Registration
Statement for the purpose of the above sale of the Outstanding Shares and the
Warrant Shares and is not to be relied upon for any other purpose.
Very truly yours,
FENWICK & WEST LLP
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