<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
FORM 10-Q
/X/ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED JUNE 30, 1998
OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from _________ to __________
Commission file number 0-28064
--------------
EXCITE, INC.
(Exact name of Registrant as specified in its charter)
CALIFORNIA 77-0378215
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
555 BROADWAY
REDWOOD CITY, CALIFORNIA 94063
(Address of principal executive offices)
(650) 568-6000
(Registrant's telephone number, including area code)
--------------
Check whether the registrant: (1) filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 12 months (or for such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days.
YES /X/ NO
----- -----
As of July 31, 1998 there were 50,888,302 shares of the Registrant's
Common Stock outstanding.
<PAGE> 2
- --------------------------------------------------------------------------------
EXCITE, INC.
QUARTERLY REPORT ON FORM 10-Q
FOR THE PERIOD ENDED JUNE 30, 1998
INDEX
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PAGE
NUMBER
<S> <C> <C>
PART I FINANCIAL INFORMATION
ITEM 1. Financial Statements:
Condensed Consolidated Balance Sheets as of December 31, 1997 and June 30,
1998 3
Condensed Consolidated Statements of Operations for the three and six months
ended June 30, 1998 and 1997 4
Condensed Consolidated Statements of Cash Flows for the six months ended June
30, 1998 and 1997 5
Notes to Condensed Consolidated Financial Statements 6
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations 11
ITEM 3. Quantitative and Qualitative Disclosures About Market Risk 20
PART II OTHER INFORMATION
ITEM 1. Legal Proceedings 21
ITEM 2. Changes in Securities and Use of Proceeds 21
ITEM 3. Defaults Upon Senior Securities 22
ITEM 4. Submission of Matters to a Vote of Security Holders 22
ITEM 5. Other Information 23
ITEM 6. Exhibits and Reports on Form 8-K 23
Signatures 24
</TABLE>
2
<PAGE> 3
- --------------------------------------------------------------------------------
PART I: FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
- -------------------------------------------------------------------------------
EXCITE, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(In thousands)
<TABLE>
<CAPTION>
JUNE 30, DECEMBER 31,
1998 1997
--------- ---------
(unaudited) (1)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents ........................................ $ 20,168 $ 15,366
Short-term investments ........................................... 15,804 16,398
Restricted investments ........................................... 287 302
Accounts receivable .............................................. 27,090 20,907
Related party receivable ......................................... 3,809 174
Prepaid expenses and other current assets ........................ 15,780 1,975
--------- ---------
Total current assets .......................................... 82,938 55,122
Property and equipment ............................................... 20,205 15,143
Investment in affiliated company ..................................... 1,326 --
Prepaid distribution fees ............................................ 16,393 --
Intangible assets .................................................... 1,871 1,771
Other assets ......................................................... 2,841 4,657
--------- ---------
$ 125,574 $ 76,693
========= =========
LIABILITIES AND SHAREHOLDERS' EQUITY Current liabilities:
Bank line of credit and other notes payable ...................... $ 6,557 $ 6,100
Accounts payable ................................................. 6,123 5,717
Capital lease obligations, current portion ....................... 4,869 3,178
Non-lease financing, current portion ............................. 1,162 1,176
Related party liabilities ........................................ 1,988 1,575
Other accrued liabilities ........................................ 21,196 14,406
--------- ---------
Total current liabilities ..................................... 41,895 32,152
Capital lease obligations ............................................ 7,081 3,076
Non-lease financing .................................................. 1,034 1,613
Convertible note ..................................................... 5,000 5,000
Shareholders' equity:
Convertible preferred stock ...................................... 813 9,518
Common stock ..................................................... 256,594 122,913
Deferred compensation ............................................ (1,157) (1,440)
Unrealized gain on available-for-sale investments ................ 105 15
Accumulated deficit .............................................. (185,791) (96,154)
--------- ---------
Total shareholders' equity .................................... 70,564 34,852
--------- ---------
$ 125,574 $ 76,693
========= =========
</TABLE>
(1) Derived from audited financial statements as of December 31, 1997
See notes to condensed consolidated financial statements.
3
<PAGE> 4
EXCITE, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share data; unaudited)
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30,
----------------------- ----------------------
1998 1997 1998 1997
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Revenues ................................... $ 33,005 $ 10,089 $ 56,006 $ 17,604
Cost of revenues:
Hosting costs ........................... 3,667 1,684 6,455 3,536
Royalties and other cost of revenues .... 2,792 556 5,598 1,096
Amortization of purchased technology .... -- 1,938 -- 4,337
--------- --------- --------- ---------
Total cost of revenues ............ 6,459 4,178 12,053 8,969
--------- --------- --------- ---------
Gross profit ............................... 26,546 5,911 43,953 8,635
Operating expenses:
Research and development ................ 7,291 3,617 13,191 6,683
Sales and marketing ..................... 14,918 7,199 24,992 13,480
Distribution license fees and data
acquisition costs .................... 62,011 1,707 65,997 1,737
General and administrative .............. 3,928 1,843 6,684 3,132
In-process technology ................... 16,200 2,346 16,200 2,346
Merger and acquisition related costs,
including amortization of goodwill and
other purchased intangibles .......... 1,167 463 2,144 1,416
--------- --------- --------- ---------
Total operating expenses .......... 105,515 17,175 129,208 28,794
--------- --------- --------- ---------
Operating loss ............................. (78,969) (11,264) (85,255) (20,159)
Net interest expense and other ............. (649) (112) (843) (1)
Equity share of losses of affiliated company (551) -- (1,030) --
--------- --------- --------- ---------
Net loss ................................... $ (80,169) $ (11,376) $ (87,128) $ (20,160)
========= ========= ========= =========
Basic and diluted net loss per share ....... $ (1.72) $ (0.46) $ (1.98) $ (0.84)
========= ========= ========= =========
Shares used in computing net loss per share 46,600 24,686 43,967 24,142
========= ========= ========= =========
</TABLE>
See notes to condensed consolidated financial statements.
4
<PAGE> 5
EXCITE, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands, unaudited)
<TABLE>
<CAPTION>
SIX MONTHS ENDED JUNE 30,
-------------------------
1998 1997
-------- --------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss .................................................................... $(87,128) $(20,160)
Adjustments to reconcile net loss to net cash used in operating activities:
Amortization of deferred compensation ..................................... 444 80
Depreciation .............................................................. 5,157 2,416
Amortization of intangibles ............................................... 701 5,754
In-process technology ..................................................... 16,200 2,346
Gain on disposal of fixed assets .......................................... (62) --
Issuance of warrants ...................................................... 16,117 --
Changes in assets and liabilities:
Accounts receivable ..................................................... (5,683) (5,372)
Related party receivable ............................................... (3,222) --
Prepaid distribution fees ............................................... (28,429) --
Prepaid expenses and other current assets ............................... (1,797) (990)
Other assets ............................................................ 1,816 (326)
Accounts payable ........................................................ 113 (658)
Accrued compensation .................................................... 406 1,813
Other accrued liabilities ............................................... 5,475 (2,408)
-------- --------
Net cash used in operating activities ................................ (79,892) (17,505)
-------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchases of property and equipment ......................................... (2,354) (6,183)
Proceeds from disposal of fixed assets ...................................... 257 --
Purchases of investments .................................................... (13,949) (30,129)
Sales and maturities of investments ......................................... 15,765 19,567
Investment in affiliated company ............................................ (1,326) (290)
-------- --------
Net cash provided by (used in) investing activities .................. (1,607) (17,035)
-------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Payments on capital lease and other financing obligations ................... (2,515) (787)
Proceeds from bank lines of credit and other notes payable .................. -- 6,000
Payments on bank lines of credit and other notes payable .................... (117) (1,100)
Proceeds from sale of redeemable convertible preferred stock ................ -- 6,385
Proceeds from issuance of common stock ...................................... 88,933 38,681
-------- --------
Net cash provided by financing activities ............................ 86,301 49,179
-------- --------
Net increase in cash and cash equivalents ....................................... 4,802 14,639
Cash and cash equivalents at beginning of period ................................ 15,366 3,971
-------- --------
Cash and cash equivalents at end of period ...................................... $ 20,168 $ 18,610
======== ========
NON-CASH FINANCING ACTIVITIES:
Amendment of common stock warrant to preferred stock warrant ................ $ -- $ 1,625
Property and equipment acquired under capital leases and other
non-lease financing ...................................................... 7,593 1,967
Conversion of preferred stock to common stock ............................... 8,705 --
</TABLE>
See notes to condensed consolidated financial statements.
5
<PAGE> 6
EXCITE, INC.
NOTES TO CONSENSED CONSOLIDATED FINANCIAL STATEMENTS
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Business
Excite, Inc. ("Excite" or the "Company"), formerly Architext Software,
Inc., which was formed in June 1994, is a global Internet media company offering
consumers and advertisers comprehensive Internet navigation services with
extensive personalization capabilities. The Excite Network consists of the
Excite (www.excite.com) and WebCrawler (www.webcrawler.com) brands, which
provide a gateway to the World Wide Web (the "Web") that organizes, aggregates
and delivers information to meet the needs of individual consumers. Designed to
help consumers navigate the Web, the Excite Network contains a suite of
specialized information services, organized under numerous topical channels
which combine proprietary search technology, editorial Web reviews, aggregated
content from third parties, bulletin boards, chat and other community features
and personalization capabilities. Localized versions of Excite are available in
Australia, China, France, Germany, Japan, Sweden, the Netherlands and the United
Kingdom. The Company conducts its business within two industry segments,
including the selling of banner and sponsorship advertising on the Excite
Network to customers in various industries, and, through the merger with
MatchLogic, Inc. ("MatchLogic") (see Note 2), ad serving and targeting services.
Basis of Presentation
The unaudited condensed consolidated financial statements have been
prepared by the Company and reflect all adjustments, which are in the opinion of
management, necessary for a fair presentation of the interim periods presented.
The results of operations for the three and six months ended June 30, 1998 are
not necessarily indicative of the results to be expected for any subsequent
quarter or for the entire year ending December 31, 1998. Certain information and
footnote disclosures normally included in financial statements prepared in
accordance with generally accepted accounting principles have been condensed or
omitted pursuant to the Securities and Exchange Commission's rules and
regulations. A condensed consolidated statement of comprehensive loss has not
been presented because the components of comprehensive loss are not material.
These unaudited condensed consolidated financial statements and notes
included herein should be read in conjunction with the Company's audited
consolidated financial statements and notes as included in the Company's Annual
Report on Form 10-K for the year ended December 31, 1997 as filed with the
Securities and Exchange Commission on March 31, 1998 and the Company's audited
supplemental consolidated financial statements reflecting the combined
operations of the Company and MatchLogic, a company that the Company acquired in
February 1998 in a transaction accounted for as a pooling of interests, as
included in the Company's Current Report on Form 8-K as filed with the
Securities and Exchange Commission on May 15, 1998.
Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the amounts reported in the unaudited condensed
consolidated financial statements and accompanying notes. Actual results may
differ from those estimates.
Revenue Recognition
Advertising revenues are derived principally from short-term advertising
contracts in which the Company guarantees a minimum number of impressions (a
view of an advertisement by a consumer) for a fixed fee. To the extent that
impression deliveries are not met, the Company defers recognition of the
corresponding revenues. The Company has recently entered into a number of
longer-term advertising and commerce sponsorship agreements. These agreements
generally involve more integration with Excite services and provide for more
varied sources of revenue to Excite over the term of the agreements, which
average between 2 to 3 years. Under these agreements, Excite earns fees for
generating impressions, which in some instances are guaranteed. These revenues,
as well as other revenues, are generally recognized ratably over the term of the
agreements, provided that the Company does not have any significant remaining
obligations and collection of the resulting receivable is probable. To the
extent that impression deliveries are falling short of the guarantees, the
Company defers recognition of the corresponding
6
<PAGE> 7
EXCITE, INC.
NOTES TO CONSENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
revenues. The terms of a number of these agreements provide that revenues from
advertising and electronic commerce transactions are to be shared between the
advertiser and Excite as realized.
Per Share Amounts
The Company has excluded all convertible debt, convertible preferred stock,
warrants and employee stock options from the computation of basic and diluted
earnings per share because all such securities are anti-dilutive for all periods
presented. In February 1998, all of the shares of Preferred Stock that were
outstanding at December 31, 1997 converted into an equivalent number of shares
of Common Stock as part of the merger with MatchLogic (see Note 2). The
following table sets forth the computation of basic and diluted earnings per
share for the three and six months ended June 30, 1998 and 1997:
<TABLE>
<CAPTION>
THREE MONTHS ENDED JUNE 30, SIX MONTHS ENDED JUNE 30,
--------------------------- -------------------------
1998 1997 1998 1997
----------- ----------- ---------- ---------
(In thousands, except per share data; unaudited)
<S> <C> <C> <C> <C>
Net loss $ (80,169) $ (11,376) $ (87,128) $ (20,160)
=========== =========== ========== =========
Weighted average shares outstanding 47,370 25,889 44,860 25,159
Weighted average common shares issued subject to
repurchase agreements (770) (1,203) (893) (1,017)
----------- ----------- ---------- ---------
Shares used to compute basic and diluted net
loss per share 46,600 24,686 43,967 24,142
=========== =========== ========== =========
Basic and diluted net loss per share $ (1.72) $ (0.46) $ (1.98) $ (0.84)
========== ========== ========== ==========
</TABLE>
Stock Split
In June 1998, the Board of Directors declared a two-for-one stock split
which was in the form of a 100% stock dividend. The dividend was paid on July
20, 1998 to shareholders of record on July 6, 1998. All of the share and per
share data have been adjusted to reflect this stock split.
2. BUSINESS COMBINATIONS
Excite completed the following acquisitions for the six months ended June
30, 1998:
<TABLE>
<CAPTION>
Shares of Excite Shares of Options and
Company Acquired Date Acquired Common Stock Issued Warrants Assumed
- -------------------------------------------- -------------------- ------------------------ -------------------------
<S> <C> <C> <C> <C>
MatchLogic, Inc. ("MatchLogic") February 1998 6,122,240 1,048,838
Classifieds2000, Inc. ("Classifieds2000") April 1998 1,729,742 50,238
Throw, Inc. ("Throw") April 1998 329,790 318,018
</TABLE>
In February 1998, the Company acquired MatchLogic, a private company
providing advertisers and agencies with Internet advertising management services
that began operations in May 1997, in a merger transaction accounted for as a
pooling of interests. In connection with the acquisition of MatchLogic, the
Company incurred approximately $700,000 in merger related expenses primarily for
legal and other professional fees in the first quarter of 1998. All financial
information has been restated to reflect the combined operations of the Company
and MatchLogic.
7
<PAGE> 8
EXCITE, INC.
NOTES TO CONSENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
Separate results of the combined entities through the periods preceding the
merger (February 2, 1998) are as follows:
<TABLE>
<CAPTION>
PERIOD
ENDED SIX MONTHS ENDED
FEBRUARY 2, 1998 JUNE 30, 1997
------------------ -----------------
(In thousands, unaudited)
<S> <C> <C>
Revenues:
Excite $ 5,598 $ 17,010
MatchLogic 376 594
------------ ------------
$ 5,974 $ 17,604
============ ============
Net loss:
Excite $ (1,656) $ (16,674)
MatchLogic (1,388) (3,486)
------------- -------------
$ (3,044) $ (20,160)
============ ============
</TABLE>
There were no significant inter-company transactions between the two
companies and no significant conforming accounting adjustments.
In April 1998, the Company acquired Classifieds2000, a provider of
Web-based classified ads that began operations in July 1996, in a transaction
accounted for as a pooling of interests. In connection with the acquisition of
Classifieds2000, the Company incurred approximately $743,000 in merger-related
expenses primarily for legal and other professional fees in the second quarter
of 1998. The results of operations and financial position of Classifieds2000
were not material to the Company's consolidated financial statements in any
period, and therefore, amounts prior to the date of acquisition were not
combined with the Company's financial statements.
In April 1998, the Company acquired Throw, a developer of community
products that began operations in April 1996, in a transaction accounted for as
a purchase. The total purchase price was allocated to the acquired assets and
liabilities based on their estimated fair values as of the date of the
acquisition. This includes an allocation of approximately $800,000 to other
intangibles assets, which are being amortized on a straight-line basis through
1999. Approximately, $16.2 million was allocated to in-process technology and
charged to operations at the time of acquisition. To determine the value of the
in-process research and development, the Company considered, among other
factors, the state of development of each project, the time and cost needed to
complete each project, expected income, and associated risks which included the
inherent difficulties and uncertainties in completing the project and thereby
achieving technological feasibility and risks related to the viability of and
potential changes to future target markets. This analysis results in amounts
assigned to in-process research and development projects that had not yet
reached technological feasibility and does not have alternative future uses.
Pro-forma results of operations have not been presented because the effect of
this acquisition was not material to the Company's consolidated financial
position, results of operations, and cash flows.
3. SALE OF COMMON STOCK
In May 1998, the Company filed a registration statement on Form S-3 with
the United States Securities and Exchange Commission for the sale of shares of
the Company's Common Stock in a public offering. The Company sold 3,105,000
shares of the Common Stock in June 1998 at a price of $31.50 per share. Of the
3,105,000 shares sold, 2,870,000 shares (including 405,000 shares which were
purchased on the exercise of the underwriters over-allotment option) were
offered directly by the Company and 325,000 shares were offered by selling
shareholders. The Company did not receive any proceeds from the sale of shares
by selling shareholders. Proceeds to the Company from this offering were
approximately $84.3 million net of offering costs.
8
<PAGE> 9
EXCITE, INC.
NOTES TO CONSENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
4. SEGMENT INFORMATION
The Company operates in the Internet navigation industry and the Internet
ad serving and targeting business segments. Prior to the merger with MatchLogic,
the Company operated only in the Internet navigation industry. The Company's
management has determined the operating segments based upon how the business is
managed and operated. MatchLogic, which provides Internet ad serving and
targeting services, operates as an independent subsidiary of Excite with its own
sales force, research and development and operations departments.
Information by Operating Segment:
<TABLE>
<CAPTION>
INTERNET AD SERVING
NAVIGATION & TARGETING TOTAL
----------- ----------- -----
(In thousands; unaudited)
<S> <C> <C> <C>
Three Months Ended June 30, 1998
Operating information:
Revenues from external customers $ 28,368 $ 4,637 $ 33,005
Distribution license fees and data acquisition costs 61,127 884 62,011
Segment operating income (loss) (76,027) (2,942) (78,969)
Six Months Ended June 30, 1998
Operating information:
Revenues from external customers $ 49,457 $ 6,549 $ 56,006
Distribution license fees and data acquisition costs 64,504 1,493 65,997
Segment operating income (loss) (77,944) (7,311) (85,255)
Balance sheet information:
Total assets $ 116,801 $ 8,773 $ 125,574
</TABLE>
5. RELATED PARTY TRANSACTION
In April 1998, the Company borrowed $50.0 million from a principal
shareholder. The loan bore interest at 5.9% per annum and was due no later than
October 30, 1998. In June 1998, the Company repaid the loan in full, plus
interest of approximately $410,000, with proceeds from the public offering. (See
Note 3).
6. SIGNIFICANT AGREEMENTS
In April 1998, the Company and Netscape Communications Corporation
("Netscape") entered into a two-year agreement (the "Netcenter Agreement") with
respect to Netscape's recently announced "Netcenter" online service. Under the
Netcenter Agreement, the Company will provide programming and content for the
co-branded channels to be offered on Netscape's Netcenter online service and
will develop a Web search and directory service for Netscape (collectively, the
"Co-Branded Services"). In addition, the Company's Classifieds2000 service will
be featured as the provider of classified advertising (excluding career and job
posting classified ads) for the Netcenter service. The Company will also be
featured as a "premier provider" on the "Net Search" page of Netscape's Web site
and will also be similarly featured on the Netcenter "Netcenter Widget" tool.
The Company will be responsible for advertising sales for, and will pay to
Netscape a percentage of advertising revenues generated from, the co-branded
Netcenter channels, the search service and the directory service, and will also
be required to make payments based upon the amount of traffic generated from the
Net Search page and the Netcenter Widget tool. The Company has paid a total of
$70.0 million as a prepayment of its obligations under the Netcenter Agreement.
In addition, the Company has issued a warrant to Netscape to purchase 846,158
shares of the Company's Common Stock at an exercise price of approximately
$29.55 per share and a second warrant to purchase shares of the Company's Common
Stock at an aggregate exercise price of $10.0 million. The fair value of the
warrants issued was $16.1 million.
The success of Netcenter, and the Co-Branded Services in particular, will
be substantially dependent on the amount of traffic on Netcenter. Although
Netscape has made certain exposure guarantees with respect to Netcenter over the
term of the Netcenter Agreement, there can be no assurance that these guarantees
will be fulfilled. There are no minimum guaranteed revenues under the Netcenter
Agreement, and there can be no assurance as to the level of revenues that the
Company may generate from the Co-Branded Services. Many of the services to be
offered by Netcenter will compete directly with those offered by the Excite
Network. The level of advertising revenues that may be generated by the Company
from the Co-Branded Services is subject to a number of risks and uncertainties,
many of which are beyond the Company's control. In addition, the Company expects
to incur significant costs to develop, host and sell advertising on the
Co-Branded Services, including the costs of hiring a significant number of
additional technical and sales personnel. The Company will not be reimbursed for
any of these costs.
9
<PAGE> 10
EXCITE, INC.
NOTES TO CONSENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
In the second quarter of 1998 the Company charged a total of $56.8 million
to operations. The amount expensed represents the amount by which the sum of the
prepayment guarantees ($70.0 million) and the independent valuation of the
warrants issued ($16.1 million) exceeds the anticipated future net revenues from
the Netcenter Agreement over its two year term. Future net revenues were
calculated using estimated gross revenues less the probable future costs of all
goods and services necessary to earn the revenues. The remaining capitalized
amount of $29.3 million will be amortized ratably over the remainder of the term
of the Netcenter Agreement.
7. SUBSEQUENT EVENTS
In July 1998, Netscape exercised a portion of the warrant issued under the
Netcenter Agreement (see Note 6) and paid approximately $5.9 million to purchase
200,000 shares of the Company's Common stock.
In 1997, the Company entered into and borrowed on a $6.0 million line of
credit. In July 1998, the Company repaid this line in full. The Company is
currently negotiating a new line of credit.
10
<PAGE> 11
- --------------------------------------------------------------------------------
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
- --------------------------------------------------------------------------------
FORWARD LOOKING STATEMENTS
The following Management's Discussion and Analysis of Financial Condition
and Results of Operations contains forward-looking statements, which involve
risks and uncertainties. The Company's actual results could differ materially
from those anticipated in these forward-looking statements as a result of
certain factors, including, without limitation, those risk factors set forth
under "Risk Factors that May Affect Future Results" included in this
Management's Discussion and Analysis of Financial Condition and Results of
Operations.
The following discussion also should be read in conjunction with the
consolidated financial statements and notes thereto included in the Company's
Annual Report on Form 10-K for the year ended December 31, 1997, filed with the
Securities and Exchange Commission on March 31, 1998 and the Company's audited
supplemental consolidated financial statements and notes thereto included in the
Company's Current Report on Form 8-K as filed with the Securities and Exchange
Commission on May 15, 1998.
OVERVIEW
The Company operates the Excite Network (which includes the Excite and
WebCrawler brands) and provides a gateway to the Web that organizes, aggregates
and delivers information to meet the needs of individual consumers. Excite,
Inc., 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 services. The Company first launched
its Excite search and directory service in October 1995. In April 1997, the
Company launched a channels-based format for its service and content on the
Excite brand to provide consumers with an interface that reflects the way they
navigate through other forms of media and enables advertisers to more
effectively reach target consumers. The Excite brand currently includes 18
channels of topical interest such as Entertainment, Sports and Money/Investing.
In September 1997, the Company launched a similar channels-based format for its
WebCrawler brand that currently includes 19 channels.
Historically, advertising revenues have been derived principally from
short-term advertising contracts in which the Company guarantees a minimum
number of impressions (a view of an advertisement banner by a consumer) for a
fixed fee. Such banner advertising revenue is dependent upon both the number of
impressions and the rate per thousand impressions ("CPMs") charged. The Company
generally charges higher rates for advertisements focused on targeted groups,
either by key-word associations or affiliations with specific content, than for
general rotation advertisements on the Excite Network.
During its limited operating history, the Company has experienced seasonal
fluctuations in the amount of banner advertisements purchased on its network,
with advertisers historically purchasing fewer advertisements in the first
calendar quarter of each year. Because the market for Web advertising is an
emerging market, additional seasonal patterns in Web advertising may develop in
the future as the market matures.
In 1997, the Company began entering into longer-term advertising and
commerce sponsorship agreements. These agreements generally involve more
integration with the Excite Network and provide for more varied sources of
revenue to Excite over the term of the agreements, which average from two to
three years. Under these agreements, Excite earns fees for generating
impressions that in some instances are guaranteed. Sponsorship customers
accounted for approximately 24% and 27% of advertising revenues for 1997 and the
six months ended June 30, 1998, respectively. Revenues are generally recognized
ratably over the term of the agreement, provided that the Company does not have
any significant remaining obligations and collection of the resulting receivable
is probable. To the extent that impression deliveries are falling short of the
guarantees, the Company defers recognition of the corresponding revenues. A
number of these agreements also provide that revenues or gross margins from
advertising and electronic commerce transactions are to be shared between the
advertiser and Excite as realized. Revenues or margin sharing recognized from
such electronic commerce transactions were insignificant through the second
quarter of 1998, and are expected to be insignificant for the
11
<PAGE> 12
remainder of 1998. The Company does not expect revenue growth relating to
sponsorship advertising revenues to continue at the current rate in future
periods as availability of exclusive sponsorships may be limited. See "Risk
Factors that May Affect Future Results -- Risks Related to Sponsorships"
and "--Risks Associated with Banner Advertising."
In April 1998, the Company and Netscape entered into a two-year agreement
(the "Netcenter Agreement"), under which the Company will, among other things,
provide, host and sell advertising for certain Co-Branded Services for
Netscape's recently announced Netcenter Service (the "Co-Branded Services"). In
connection with the Netscape Agreement, the Company has paid to Netscape a total
of $70.0 million (the "Cash Payment"). Also in connection with the Netcenter
Agreement, the Company has issued to Netscape a warrant to purchase 846,158
shares of the Company's Common Stock at an exercise price of approximately
$29.55 per share and a second warrant to purchase shares of the Company's Common
Stock at an aggregate exercise price of $10.0 million (together, the
"Warrants"). The fair value of the first warrant and the aggregate $10.0 million
exercise price of the second warrant has been estimated to be $16.1 million. A
portion of the Cash Payment and the value assigned to the Warrants totaling
$56.8 million were expensed to distribution license fees and data acquisition
costs during the second quarter of 1998. The remaining $29.3 million of the Cash
Payment was capitalized and will be amortized over the two-year term of the
Netcenter Agreement. Under the Netcenter Agreement, the Company will only
recognize revenues generated from the Co-Branded Services and not from any other
part of Netcenter. A portion of the revenues will be credited against the
Company's revenue-sharing obligation to Netscape until the Company recoups a
specified amount of the Cash Payment. Thereafter, the Company must pay Netscape
a portion of additional revenues generated from the Co-Branded Services. There
can be no assurance that the Co-Branded Services will generate future revenues.
See "Risk Factors that May Affect Future Results--Risks Related to Netcenter
Agreement."
The Company has acquired a number of businesses, technologies, services,
product lines and content. In April 1998, the Company acquired Throw, a
developer of community products, issued approximately 330,000 shares of its
Common Stock, assumed options and warrants to purchase up to an aggregate of
approximately 318,000 shares of its Common Stock. Also in April 1998, the
Company acquired Classifieds2000, a provider of online classified ads. The
Company issued approximately 1,730,000 shares of its Common Stock to former
stockholders of Classifieds2000 and assumed options and warrants to purchase up
to approximately 50,000 shares of its Common Stock. In February 1998, the
Company acquired MatchLogic, a provider of solutions for the management and
optimization of Internet advertising campaigns. The Company issued approximately
6.1 million shares of its Common Stock to former stockholders of MatchLogic and
assumed options and warrants to purchase up to approximately 1,049,000 shares of
its Common Stock. The acquisition of MatchLogic and Classifieds2000 were
accounted for as a pooling of interests and the acquisition of Throw was
accounted for as a purchase.
All financial information for dates and periods prior to the merger with
MatchLogic has been restated to reflect the combined operations of the Company
and MatchLogic. Financial information for dates and periods prior to the
acquisition of Classifieds2000 has not been restated to reflect the combined
operations of the Company and Classifieds2000, as Classifieds2000's results of
operations were not material to the Company's consolidated financial statements
in any historical period. See Note 2 and "Risk Factors that May Affect Future
Results--Acquisition Strategy; Integration of Past and Future Acquisitions."
The Company has incurred significant operating losses since inception, and
as of June 30, 1998, the Company had an accumulated deficit of approximately
$185.8 million. Although the Company experienced significant revenue growth
during 1997 and the first half of 1998, there can be no assurance that this
growth rate will be sustained or that revenues will continue to grow or that
historical operating results will be indicative of future operating results. In
addition, as the Company has grown, its operating expenses have increased, and
the Company expects that its operating expenses will continue to increase as a
result of its acquisitions, the performance of its obligations under the
Netcenter Agreement, its increased sales and marketing efforts, its increased
funding for development activities and the increased general and administrative
staff needed to support the Company's growth. 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. There can be no assurance that in the future
the Company will be profitable on a quarterly or annual basis.
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RESULTS OF OPERATIONS
REVENUES
Revenues were $33.0 million for the second quarter of 1998, as compared to
$10.1 million for the second quarter of 1997, an increase of $22.9 million or
227%. For the first half of 1998 and 1997, revenues were $56.0 million and $17.6
million, respectively, an increase of $38.4 million or 218%. This increase in
both periods is primarily the result of an increase in the number of advertisers
purchasing advertising banners on the Company's Web sites, an increase in
sponsorship advertising revenue, and to a lesser extent, an increase in sales of
targeted advertisements with higher rates. Also contributing to the increase in
revenues was the increased revenues attributable to MatchLogic, which began
operations in May 1997. Revenues from international operations were not
significant during the three and six months ended June 30, 1998 and 1997.
The Company expects to continue to derive a substantial amount of its total
revenues from selling advertisements. Because the market for advertising on the
Web is intensely competitive, advertising rates could be subject to pricing
pressures in the future. If the Company is forced to reduce its advertising
rates or experiences lower CPMs (price per thousand impressions) as a result of
such competition or otherwise, future revenues could be adversely affected.
COST OF REVENUES
Cost of revenues consists primarily of: hosting costs; royalties and other
cost of revenues; and amortization of purchased technology. Hosting costs relate
to the maintenance and technical support of the Excite Network, and are
comprised principally of personnel costs, telecommunications costs, equipment
depreciation and overhead allocations. Royalties and other cost of revenues
include expenses related to royalties, license agreements and revenue sharing
agreements for content and other services such as email and chat room services.
For the second quarter and first half of 1997, the Company recognized
amortization of purchased technology of $1.9 million and $4.3 million,
respectively, related to the WebCrawler acquisition. There were no corresponding
costs for the comparable periods in 1998 as the cost of the technology was fully
amortized at December 31, 1997.
Total cost of revenues increased in absolute dollars by $2.3 million to
$6.5 million, or 20% of revenues for the second quarter of 1998, from $4.2
million, or 41% of revenues for the comparable period in the prior year. For the
current year to date, total cost of revenues increased by $3.1 million to $12.1
million, or 22% of revenues, from $9.0 million, or 51% of revenues for the
comparable period in the prior year. Hosting costs for the second quarter of
1998 increased in absolute dollars by $2.0 million to $3.7 million, or 11% of
revenues, from $1.7 million, or 17% of revenues for the comparable period in the
prior year. For the current year to date, hosting costs increased by $2.9
million to $6.5 million, or 12% of revenues, from $3.5 million, or 20% of
revenues for the comparable period in the prior year. The increase in hosting
costs is due primarily to increased personnel expenses and equipment costs
relating to maintaining and supporting the Company's Web sites and services.
Royalties and other cost of revenues increased in absolute dollars by $2.2
million to $2.8 million, or 8% of revenues, for the second quarter 1998 from
$556,000, or 6% of revenues for the comparable period in the prior year. For the
current year to date, royalties and other cost of revenues increased by $4.5
million to $5.6 million, or 10% of revenues, from $1.1 million, or 6% of
revenues for the comparable period in the prior year. The increase in royalties
and other cost of revenues was primarily due to increased royalties and margin
sharing payments from revenue sharing agreements.
Excluding amortization of purchased technology, total cost of revenues
increased by $4.2 million to $6.5 million, or 20% of revenues for the second
quarter of 1998, from $2.2 million, or 22% of revenues for the comparable period
in the prior year. Excluding amortization of purchased technology, total cost of
revenues for the first half of 1998 increased by $7.4 million to $12.1 million,
or 22% of revenues from $4.6 million, or 26% of revenues for the comparable
period in the prior year.
Excluding amortization, cost of revenues in future periods is expected to
increase in absolute dollars and may increase as a percentage of revenues as the
Company increases costs to support expanded services and content. The Company
also expects to experience increased hosting costs in connection with performing
its obligations under the Netcenter Agreement and to experience increased
royalties and other cost of revenues as a result of the revenue sharing
provisions of the Netcenter Agreement.
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GROSS PROFIT
Gross profit increased by $20.6 million or 349% to $26.5 million or 80% of
revenues for the second quarter of 1998, from $5.9 million or 59% of revenue for
the comparable period in the prior year. For the first half of 1998, gross
profit increased by $35.3 million or 409% to $44.0 million or 78% of revenues,
from $8.6 million or 49% of revenue for the comparable period in 1997. The
increase in gross profit in absolute dollars and as a percentage of revenues was
primarily due to the fact that revenues grew at a faster rate than hosting costs
and royalties and other cost of revenues, a favorable product mix, and the
elimination of amortization of purchased technology discussed above. In the
future, gross profit may be affected by the types of advertisements sold and
revenue sharing provisions of distribution and content agreements. These items
have negatively affected gross profit in the past and may continue to negatively
affect it in the future. Furthermore, pursuant to the provisions of certain
agreements with operators of Web access points and with content providers, the
Company shares advertising revenues based upon the number of consumers directed
to its network. A low level of targeted advertising as a percentage of total
advertising sold, a decrease in targeted or mass Web advertising rates or an
increase in the Company's advertising revenue sharing obligations could
adversely affect gross margins in the future.
Operating Expenses
Research and Development. Research and development expenses consist
principally of engineering and editorial personnel costs, equipment
depreciation, consulting fees, supplies and allocation of overhead. Research and
development expenses for the second quarter of 1998 increased to $7.3 million,
or 22% of revenues, from $3.6 million, or 36% of revenues in the comparable
period of the prior year. Research and development expenses for the first six
months of 1998 increased to $13.2 million, or 24% or revenues, from $6.7
million, or 38% of revenues in the comparable period of the prior year. The
increase in absolute dollars was primarily attributable to increased expenses as
a result of the Classifieds2000 and Throw acquisitions, as well as an increase
in engineering and editorial headcount to support the Company's channels format
and personalization capabilities for the Excite Network. The Company believes
that a significant level of research and development expense is required to
remain competitive and, accordingly, the Company anticipates that it will
continue to devote substantial resources to research and development and that
these costs will increase in absolute dollars in future periods. The Company
also expects to continue to experience increased research and development
expenses in order to integrate acquired technologies and provide programming and
content for the Co-Branded Services of Netcenter.
Sales and Marketing. Sales and marketing expenses consist principally of
sales and marketing personnel costs, agency and consulting fees, commissions,
promotional and advertising expenses and allocation of overhead. Sales and
marketing expenses for the second quarter of 1998 increased to $14.9 million, or
45% of revenues, from $7.2 million, or 71% of revenues, in the comparable period
of the prior year. For the current year to date, sales and marketing expenses
increased to $25.0 million, or 45% of revenues, from $13.5 million, or 77% of
revenues in the comparable period for the prior year. The increase in absolute
dollars was primarily due to the hiring of additional sales and marketing
personnel and increased expenses resulting from the acquisition of Classifieds
and Throw. Promotional expenses remained relatively constant in the second
quarter and first half of 1998, as compared to the same period of the prior year
as the prior year period included costs associated with a national media
campaign that started in the fourth quarter of 1996. The Company expects to
continue to incur significant promotional and advertising expenses and
anticipates that these costs will increase in absolute dollars in future periods
as the Company promotes its brands and introduces new services in order to
create and maintain brand loyalty among customers. The Company also expects to
continue to experience increased sales and marketing expenses as it is
responsible for all advertising sales on the Co-Branded Services of Netcenter.
Distribution License Fees and Data Acquisition Costs. Distribution license
fees and data acquisition costs consist principally of fees paid to third-party
Internet companies such as Netscape to provide entry points to the Excite
Network and costs to update and maintain the ad targeting and tracking database
which is continually being updated by the Company's MatchLogic subsidiary.
Distribution license fees and data acquisition costs were $62.0 million for the
second quarter of 1998, as compared to $1.7 million for the comparable period in
1997. For the current year to date, distribution license fees and data
acquisition costs were $66.0 million,
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compared to $1.7 million for the comparable period in the prior year.
The 1998 costs included a $56.8 million charge related to the Netcenter
Agreement for a portion of the Cash Payment and the value assigned to the
Warrants, and distribution license fees related to agreements entered into
with Netscape in March 1997 as well as data acquisition
costs incurred by MatchLogic during the period.
In the future, high traffic Web sites, Internet service providers,
providers of Web browsers or other distribution channels could require cash
payments or other types of consideration as compensation for listing or
promoting the Excite Network, which could result in increased distribution
license fees. See "Risk Factors that May Affect Future Results--Risks Related to
Netcenter Agreement."
General and Administrative. General and administrative expenses consist
principally of administrative and executive personnel costs, provision for
doubtful accounts, fees for professional services and allocation of overhead.
General and administrative expenses for the second quarter of 1998 increased to
$3.9 million, or 12% of revenues, from $1.8 million, or 18% of revenues, in the
comparable period of the prior year. General and administrative expenses for the
first half of 1998 increased to $6.7 million, or 12% of revenues, from $3.1
million, or 18% of revenues, in the comparable period of the prior year. The
increase in absolute dollars is primarily due to increased personnel costs to
support the expansion and infrastructure of the Company's operations and global
business strategy. In particular, the acquisition of Classifieds2000 and the
growth in the Company's finance and administrative departments contributed to
this increase. The Company anticipates that its general and administrative
expenses will continue to increase in absolute dollars as the Company expands
its administrative and executive staff, adds infrastructure and assimilates
acquisitions of acquired technologies and businesses. In addition, the Company
plans to continue to run MatchLogic as an independent subsidiary with its own
administrative function.
In-Process Technology. During the first half of 1998 and 1997, the Company
incurred charges for in-process technology of $16.2 million and $2.3 million,
respectively. The Company acquired Throw in April 1998, accounted for the
transaction as a purchase, and of the total purchase price, $16.2 million was
allocated to in-process technology and charged to operations in the second
quarter of 1998. The 1997 charge of $2.3 million related to the value of
acquired in-process technology that had not reached technological feasibility at
the time of MathLogic's formation in May 1997. To determine the value of the
in-process technology, the Company considered, among other factors, the state of
development of each project, the time and cost needed to complete each project,
expected income, and associated risks which included the inherent difficulties
and uncertainties in completing the project and thereby achieving technological
feasibility and risks related to the viability of and potential changes to
future target markets. This analysis results in amounts assigned to in-process
research and development projects that had not yet reached technological
feasibility and does not have alternative future uses.
Other Merger and Acquisition Related Costs, including Amortization of
Goodwill and Other Intangible Assets. During the second quarter of 1998 and
1997, the Company incurred merger and acquisition related costs of $1.2 million
and $463,000, respectively. During the first half of 1998 and 1997, the Company
incurred merger and acquisition related costs of $2.1 million and $1.4 million,
respectively. In 1998, the Company incurred charges of approximately $743,000
and $700,000 for the acquisition of Classifieds2000 and MatchLogic,
respectively. The remainder of the merger and acquisition related costs for the
first half of 1998 and all of the costs for the comparable period of the prior
year related to the amortization of goodwill and other purchased intangibles
resulting primarily from the WebCrawler acquisition.
Net Interest Expense and Other. Net interest expense and other increased to
$649,000 for the second quarter of 1998, compared to $112,000 for the comparable
period of the prior year. Current year to date, net interest expense and other
increased to $843,000 compared to $1,000 for the comparable period of the prior
year. This increase in net interest expense and other was due primarily to an
increase in interest expense resulting from the $50 million note payable due to
Intuit, as well as additional capital lease obligations, non-lease financing
obligations and the convertible note issued to Itochu Corporation. The overall
increase in net interest expense and other was partially offset by an increase
in interest income earned on cash received in June 1998 from the Company's
public offering, which was used to fund operations and its obligations under the
Netcenter Agreement.
Equity Share of Losses of Affiliated Company. In October 1997, the Company
and Itochu Corporation and certain affiliated entities (collectively "Itochu")
entered into a joint venture agreement with respect to the Company's
wholly-owned subsidiary, Excite Japan, in order to provide Web-based information
services to the
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Japanese market. The Company currently holds, and intends to
retain, a 50% equity interest in Excite Japan. For the three and six months
ended June 30, 1998, Excite's share of the losses of Excite Japan was $551,000
and $1.0 million, respectively. The Company expects that it will record
increased losses from Excite Japan for at least the remainder of 1998.
YEAR 2000 IMPLICATIONS
Many currently installed computer systems and software products are coded
to accept only two digit entries in the date code field and cannot distinguish
21st century dates from 20th century dates. These date code fields will need to
distinguish 21st century dates from 20th century dates and, as a result, many
companies' software and computer systems may need to be upgraded or replaced in
order to comply with such "Year 2000" requirements. The Company has reviewed its
internal programs, and has determined that there are no significant Year 2000
issues within the Company's systems or services. However, although the Company
believes that its systems are Year 2000 compliant, the Company utilizes
third-party equipment and software that may not be Year 2000 compliant. Failure
of such third-party equipment or software to operate properly with regard to the
Year 2000 and thereafter could require the Company to incur unanticipated
expenses to remedy any problems, which could have a material adverse effect on
the Company's business, results of operations and financial condition.
Furthermore, the purchasing patterns of advertisers may be affected by Year 2000
issues as companies expend significant resources to correct their current
systems for Year 2000 compliance. These expenditures may result in reduced funds
available for Web advertising or sponsorship of Web services, which could have a
material adverse effect on the Company's business, results of operations and
financial condition.
LIQUIDITY AND CAPITAL RESOURCES
At June 30, 1998 the Company had $36.0 million in unrestricted cash, cash
equivalents and short-term investments, an increase of $4.2 million from
December 31, 1997. During the six months ended June 30, 1998, the Company
completed its merger with MatchLogic, Classifieds and Throw. The Company
maintains its cash and cash equivalents in short-term and medium-term
investment-grade interest-bearing securities until required for other purposes.
The Company's operating activities for the first half of 1998 and 1997 used
cash of approximately $79.9 million and $17.5 million, respectively. The
increased use of cash in 1998 was mainly attributable to the $70 million cash
prepayment to Netscape under the Netcenter Agreement. The Company borrowed $50.0
million from Intuit in April 1998 to fund a portion of this payment to Netscape.
In June 1998, the Company repaid the loan in full, plus interest of
approximately $410,000, with proceeds from the Company's public offering which
closed in June 1998.
Investing activities for the first half of 1998 and 1997 used cash of $1.6
million and $17.0 million, respectively. In the first half of 1998 and 1997,
cash was used for purchases of short-term investments, property and equipment,
and contributions towards its investment in Excite Japan, offset by the sales of
short-term investments. Capital expenditures have been, and future expenditures
are anticipated to be, primarily for facilities and equipment to support
expansion of the Company's operations and management information systems. The
Company expects that its capital expenditures will increase as its employee base
grows. As of June 30, 1998, the Company did not have any material commitments
for capital expenditures, although the Company anticipates that its planned
purchases of capital equipment and leasehold improvements will require
additional expenditures during the remainder of 1998, a portion of which may be
financed through equipment leases and bank borrowings. At June 30, 1998 the
Company had $7.7 million available on equipment lease lines, and the Company
believes that additional lease financing will be available to it if necessary.
Financing activities for the first half of 1998 and 1997 generated cash of
$86.3 million and $49.2 million, respectively. Financing activities for the
first half of 1998 primarily consisted of cash received in connection with the
issuance of stock through the Company's public offering which was completed in
June 1998 and, to a lesser extent, option exercises under the Company's equity
incentive plan. Financing activities for the first half of 1997 primarily
consisted of a bank line of credit borrowing of $6.0 million and the sale of
Common Stock to Intuit.
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In 1997, the Company entered into and borrowed on a $6.0 million line of
credit. In July 1998, the Company repaid this line in full. The Company is
currently negotiating a new line of credit.
To date, the Company has had limited international operations and its
exposure to foreign currency exchange rate fluctuations has been minimal. The
Company evaluates its foreign currency exchange rate exposure on an ongoing
basis.
The Company has completed a number of mergers and acquisitions in the past,
and expects to make other acquisitions and investments in joint ventures in the
future. These mergers resulted in significant increases in headcount and
overhead, as well as the assumption and payment of additional liabilities. While
the Company believes that such transactions have been and will continue to be in
the best interests of the Company and its shareholders, these transactions
involve risks and may require additional cash investments by the Company.
The Company believes the existing working capital balance together with
cash flows generated from advertising revenues will be sufficient to meet its
anticipated cash needs for working capital, capital expenditures and business
expansion for at least the next twelve months. The Company may need to raise
additional funds sooner in order to fund more rapid expansion, to develop new or
enhanced services or products, to respond to competitive pressures or to acquire
complementary products, businesses or technologies. If additional funds are
raised through the issuance of equity or convertible debt securities, the
percentages ownership of the shareholder of the Company will be reduced,
shareholders may experience additional dilution and such securities may have
rights, preferences or privileges senior to those of the holders of the
Company's common stock.
RISK FACTORS THAT MAY AFFECT FUTURE RESULTS
Limited Operating History; No Assurance of Profitability. The Company was
founded in June 1994 and generated only limited revenues prior to 1996.
Accordingly, the Company has a limited operating history upon which an
evaluation of the Company and its current business can be based. In addition,
the Company's business model is evolving and relies substantially upon the sale
of Web advertising. The Company's business must be considered in light of the
risks, expenses and problems frequently encountered by companies in their early
stages of development, particularly companies in new and rapidly evolving
markets such as Web advertising. Specifically, such risks include, without
limitation: the inability of the Company to maintain and increase levels of
traffic on the Excite Network; the inability of the Company to derive sufficient
revenues from the Co-Branded Services of Netscape's Netcenter service and the
additional costs the Company expects to incur in order to perform its
obligations under the Netcenter Agreement; the inability of the Company to
effectively integrate the technology and operations of acquired businesses or
technologies with its operations, increased operating expenses as a result of
the Company's recent acquisitions, the inability of the Company to expand its
international operations, particularly in light of the Company's limited
operating experience in the international market; the failure by the Company to
continue to develop and extend the Excite and WebCrawler brands; the inability
of the Company to meet minimum guaranteed impressions under sponsorship
agreements; the inability of the Company to develop or acquire content for its
services; the inability of the Company to generate commerce-related revenues;
the failure of the Company to anticipate and adapt to a developing market; the
introduction and development of equal or superior services or products by
competitors, particularly in light of the fact that Microsoft and Netscape,
operators of two of the most heavily-trafficked Web sites, offer competitive
services; the failure of the market to adopt the Web as an advertising and
commercial medium; reductions in market prices for Web advertising as a result
of competition or otherwise; the inability of the Company to achieve higher cost
per thousand impressions ("CPM") rates for targeted advertising or to increase
the percentage of its advertising inventory sold; government regulation; the
inability of the Company to identify, attract, retain and motivate qualified
personnel; and general economic conditions. There can be no assurance that the
Company will be successful in addressing such risks.
Potential Fluctuations in Quarterly Results; Unpredictability of Future
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 but not limited to:
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
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budgeting cycles of advertisers; incurrence of charges in connection with the
Netcenter Agreement, the Company's distribution relationships and acquisitions;
demand for the Company's services; incurrence of costs relating to acquisitions
of businesses or technologies; introduction or enhancement of new or existing
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; mix of types of advertisements sold, such as the amount of targeted
advertising, which generally has higher CPM rates, sold as a percentage of total
advertising sold; capacity constraints and dependencies on computer
infrastructure; and general economic conditions.
Due to all of the foregoing factors, the Company's quarterly revenues and
operating results are difficult to forecast. 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. Also, 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 such event, the price of the Company's Common Stock
would be materially and adversely affected. See "Volatility of Stock Price".
Risks Related to Netcenter Agreement. There are no minimum guaranteed
revenues under the Netcenter Agreement, and there can be no assurance as to the
level of revenues that the Company will generate from the Co-Branded Services.
The level of advertising revenues generated by the Company from the Co-Branded
Services is subject to a number of risks and uncertainties, many of which are
beyond the Company's control. These include general risks associated with
providing an advertising-supported Internet service, uncertainty as to whether
the Company can increase its sales and marketing capabilities in order to sell
sufficient advertising on the Co-Branded Services, pricing competition from
Netscape as a result of advertising sold on the parts of Netcenter other than
the Co-Branded Services, and risks that channels on Netcenter other than the
Co-Branded Channels (such as a business channel and a sports channel) may be
potentially more attractive to advertisers than the Co-Branded Services. As a
result, there can be no assurance that the Company can generate substantial
revenues from the Co-Branded Services.
The Company has hired a significant number of technical and sales personnel
and is incurring additional overhead costs in order to develop, host and sell
advertising on the Co-Branded Services. The Company will not be reimbursed for
these costs. The failure to generate revenues from the Co-Branded Services
sufficient to recoup these additional costs would have a material adverse effect
on the Company's business, results of operations and financial condition.
The success of Netcenter, and the Co-Branded Services in particular, will be
substantially dependent on the amount of traffic on Netcenter. Although Netscape
has made certain exposure guarantees with respect to Netcenter over the term of
the Netcenter Agreement, there can be no assurance that these guarantees will be
fulfilled. There is intense competition for attracting Web users, which
competition may be exacerbated by the upcoming release of Microsoft's Windows 98
operating system. Furthermore, many current Web users may not choose to utilize
Netcenter over other available Internet services. Any failure of Netcenter to
attract substantial user traffic would materially and adversely affect the
Company's business, results of operations and financial condition. Additionally,
the Netcenter Agreement provides that all page views generated from the
Co-Branded Services shall be deemed to be traffic attributable to Netscape. As a
result, the Company may not receive credit, under certain audience measurement
statistics, which are commonly used by advertisers in making their advertising
placements, for traffic generated through the Co-Branded Services.
As part of the Netcenter Agreement, the Excite Network will also be featured
as a "premier provider" on Netscape's Net Search page, and will be similarly
featured on the "Netcenter Widget" tool, which will be accessible from
Netcenter. Because Netscape only guarantees a specified number of impressions
from its Net Search page (as compared to a number of users who "click through"
to the Excite Network), there can be no assurance that this new "premier
provider" arrangement will result in significant increases in traffic on the
Excite Network. Although Netscape has guaranteed a minimum number of users who
"click through" to the Excite Network from the Netcenter Widget, Netscape is not
obligated to keep this tool on Netcenter after the first six months of the term
of the Netcenter Agreement. Accordingly, there can also be no assurance that
this tool will provide the Excite Network with significant amounts of traffic.
The Netcenter Agreement is subject to termination if the Company materially
breaches its obligations under the Netcenter Agreement. In addition, if Netscape
believes that the Company's Excite service or that the content provided by
Excite for the Netcenter service contains any content that Netscape deems likely
to cause
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it material harm, Netscape may terminate the Netcenter Agreement if the Company
has not revised such objectionable content within five days after notice from
Netscape. In the event of such terminations, Netscape will not be obligated to
refund any portion of the amounts prepaid by the Company and the Company will
not be entitled to receive any reimbursement for its costs incurred in
performing its obligations under the Netcenter Agreement. Moreover, many of the
Company's obligations to be performed under the Netcenter Agreement must be
performed according to standards determined by Netscape at its sole discretion.
Many of the services to be offered by Netcenter will compete directly with
those offered by the Excite Network. There can be no assurance that this
increased competition for Web users or advertisers will not have a material
adverse effect on the Company's business, results of operations and financial
condition.
Acquisition Strategy; Integration of Past and Future Acquisitions. The
Company has in the past acquired, 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. Acquisitions involve
a number of special risks, including, among other things, the difficulty of
assimilating the technologies, operations and personnel of acquired companies
with those of the Company, the potential disruption of the Company's business,
the diversion of resources, the incurrence of acquisition-related expenses, the
write-off or amortization of intangible assets, the assumption of unknown
liabilities, the inability to maintain uniform standards, controls, procedures
and policies and the impairment of relationships with employees and strategic
partners as a result of such acquisitions or the integration of new personnel.
Any failure to successfully address these acquisition-related risks could have a
material adverse effect on the Company's business, results of operations and
financial condition.
Risks Related to Sponsorships. The Company derives a substantial portion of
its revenues from sponsorship arrangements with third parties to provide
sponsored services and placements on the Excite Network. In connection with
these arrangements, the Company may receive sponsorship fees, and in connection
with certain of its more recent arrangements it may receive a portion of
transaction revenues received by such sponsors from users originated through the
Excite Network. These arrangements expose the Company to potentially significant
financial risks, including the risk that the Company fails to deliver required
minimum levels of user impressions (in which case, these agreements are
typically subject to termination) and that third party sponsors do not renew the
agreements at the end of their term. These arrangements also require the Company
to integrate sponsors' content with the Company's services, which can require
the dedication of resources and significant programming and design efforts to
accomplish. There can be no assurance that the Company will be able to attract
additional sponsors or that it will be able to renew existing sponsorship
arrangements when they expire. In addition, the Company has granted exclusivity
provisions to certain of its sponsors, and may in the future grant additional
exclusivity provisions. Such exclusivity provisions may have the effect of
preventing the Company, for the duration of such exclusivity arrangements, from
accepting advertising or sponsorship arrangements with respect to portions of a
channel or service, an entire channel, across an entire service or over the
entire Excite Network. The inability of the Company to enter into further
sponsorship or advertising arrangements as a result of its exclusivity
arrangements or otherwise could have a material adverse effect on the Company's
business, results of operations and financial condition.
Risks Associated with Banner Advertising. The Company derives a substantial
portion of its revenues from the sale of banner advertisements on the Excite
Network. A majority of the Company's customers purchasing banner advertisements
purchase these advertisements on a short-term basis, and many of these customers
may terminate their advertising commitments at any time without penalty.
Consequently, there can be no assurance that these customers will continue or
increase their level of advertising on the Excite Network or that these
customers will not move their advertising to competing Web sites or to other
traditional media. Therefore, there can be no assurance that the Company will be
successful in maintaining or increasing the amount of banner advertising on the
Excite Network, and the failure to do so would have a material adverse effect on
the Company's business, results of operations and financial condition.
Developing Market; Dependence on Continued Growth in Use of the Web. 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 products for use on the Web or who
seek to derive significant revenues from the sale of advertisements on the Web.
The Company is highly dependent upon the increased use of the Web for
information, publication, distribution and commerce, and there can be no
assurance that the use of the Web for these purposes will continue to grow at
its current rate or at all. The
19
<PAGE> 20
growth of the use of the Web may be inhibited for a number of reasons,
including, but not limited to, potentially inadequate development of network
infrastructure, security concerns, inconsistent quality of service, lack of
availability of cost-effective, high-speed service and government regulations.
To the extent that use of the Web continues to grow, there can be no assurance
that the Internet infrastructure will continue to support the demands placed on
it by such growth or that the performance or reliability of the Internet will
not be adversely affected. In addition, the Web as an advertising medium has not
been available for a sufficient period of time to gauge its effectiveness as
compared with traditional advertising media, and therefore 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.
The Company's ability to generate significant advertising revenues will also
depend on, among other things, the development of a large base of users of the
Company's services possessing demographic characteristics attractive to
advertisers, the ability of the Company to accurately measure its user base and
the ability of the Company to develop or acquire effective advertising delivery
and measurement systems. 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. The adoption of
Web advertising, particularly by those entities that have historically relied
upon traditional media for advertising, requires the acceptance of a new way of
conducting business and exchanging information. Entities that already have
invested substantial resources in other methods of conducting business may be
reluctant to adopt a new strategy that may limit or compete with their existing
efforts. There can be no assurance that the market for Web advertising will
continue to emerge or become sustainable. If the market fails to develop or
develops more slowly than expected, the Company's business, results of
operations and financial condition could be materially and adversely affected.
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.
There can be no assurance that advertisers will continue to accept the Company's
or other third-party measurements of impressions, or that such measurements will
not contain errors. In such event, the Company's advertising revenues could be
materially adversely affected, which would have a material adverse effect on the
Company's business, results of operations and financial condition.
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," or user requests for additional information made by clicking on the
advertisement from the Company's network to the advertiser's Web pages, instead
of rates based solely on the number of impressions displayed on users' computer
screens, would materially adversely affect the Company's revenues. As a result
of these risks, there can be no assurance that the Company will be successful in
generating significant future advertising revenues from Web-based advertising,
and the failure to do so would have a material adverse effect on the Company's
business, results of operations and financial condition.
Further, there can be no assurance that advertisers will determine that
banner advertising, the delivery of which currently comprises a substantial
portion of the Company's revenues, is an effective or attractive advertising
medium, and there can be no assurance that the Company will effectively
transition to any other forms of Web advertising should they develop and achieve
market acceptance. Moreover, "filter" software programs that limit or prevent
advertising from being delivered to a Web user's computer are available.
Widespread adoption of such software by users could have a material adverse
effect upon the commercial viability of Web advertising, which would have a
material adverse effect on the Company's business, results of operations and
financial condition.
- --------------------------------------------------------------------------------
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
- --------------------------------------------------------------------------------
Not applicable.
20
<PAGE> 21
- --------------------------------------------------------------------------------
PART II. OTHER INFORMATION
- --------------------------------------------------------------------------------
ITEM 1. LEGAL PROCEEDINGS
On May 21, 1998, two lawsuits were filed in the Superior Court of the State
of California, County of San Mateo. The first (Case No. 404918), styled as a
class action complaint for alleged breach of fiduciary duties, was filed by
Lazar Blisko ("Blisko") against Excite, its director and one former director.
The second (Case No. 404921), also styled as a class action complaint for
alleged breach of fiduciary duties, was filed by Taam Associates, Inc. ("Taam
Associates") against Excite and its directors. Blisko and Taam Associates
alleged in their respective complaints, among other things, that the respective
defendants breached their fiduciary duties to the Company's shareholders by
rejecting an unsolicited letter proposing that Excite negotiate to merge with
Zapata Corporation. The complaints were voluntarily dismissed on June 18, 1998.
The Company is subject to legal proceedings and claims that arise in the
ordinary course of business. Management currently believes that the ultimate
amount of liability, if any, with respect to any pending actions, either
individually or in the aggregate, will not materially affect the financial
position, results of operations or liquidity of the Company. However, the
ultimate outcome of any litigation is uncertain. If an unfavorable outcome were
to occur, the impact could be material. Furthermore, any litigation, regardless
of the outcome, can have an adverse impact on the Company's results of
operations as a result of defense costs, diversion of management resources, and
other factors.
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
(All share data are reflected on a post-split basis)
(C) RECENT SALES OF UNREGISTERED SECURITIES
In April 1998, the Company acquired all of the issued and outstanding
capital stock of Classifieds2000, Inc. (Classifieds 2000), pursuant to a merger
of a newly formed, wholly-owned subsidiary of the Company with and into
Classifieds 2000, in exchange for 1,729,742 shares of the Company's Common
Stock. In addition, the Company assumed options and warrants to purchase capital
stock of Classifieds2000, which options and warrants are exercisable for an
aggregate of 50,238 shares of the Company's Common Stock. The issuance of shares
of Common Stock and the assumption of options and warrants were made in reliance
on Section 4(2) and/or Regulation D promulgated under the Securities Act of
1933, as amended (the "Securities Act".)
In April 1998, the Company acquired all of the issued and outstanding
capital stock of Throw, Inc. (Throw), pursuant to a merger of a newly formed,
wholly-owned subsidiary of the Company with and into Throw, in exchange for
329,790 shares of the Company's Common Stock. In addition, the Company assumed
options and warrants to purchase capital stock of Throw, which options and
warrants are exercisable for an aggregate of 318,018 shares of the Company's
Common Stock. The issuance of shares of Common Stock and the assumption of
options and warrants were made in reliance on Section 4(2) and/or Regulation D
promulgated under the Securities Act.
In April 1998, the Company and Netscape Communications Corporation
("Netscape") entered into a two-year agreement (the "Netcenter Agreement"),
under which the Company will, among other things, provide, host and sell
advertising for certain Co-Branded Services for Netscape's recently announced
Netcenter Service. In connection with the Netcenter Agreement, the Company
issued to Netscape a warrant exercisable for an aggregate of 846,158 shares of
the Company's Common Stock at an exercise price of approximately $29.55 per
share and a second warrant to purchase shares of the Company's Common Stock at
an aggregate exercise price of $10.0 million. The issuance of warrants to
purchase shares of Common Stock were made in reliance on Section 4(2) and/or
Regulation D promulgated under the Securities Act.
21
<PAGE> 22
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
Not applicable.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
(All votes below are reflected on a pre-split basis)
On June 16, 1998, the Company's Annual Meeting of Shareholders was held and the
following matters were submitted to the shareholders for action or approval.
1. The shareholders elected four directors of the Company, each to serve until
the next Annual Meeting of Shareholders and until his successor is duly
elected and qualified or until his earlier resignation or removal. The
votes for these directors are set forth below.
<TABLE>
<CAPTION>
For Against
----------------- -----------------
<S> <C> <C>
George Bell 19,567,545 58,241
Joseph R. Kraus, IV 19,566,267 59,519
Vinod Khosla 19,567,805 57,981
Geoffrey Y. Yang 19,565,735 60,051
</TABLE>
Other matters voted upon and approved by the shareholders at the meeting,
and the number of votes cast with respect to each such matter, were as follows:
2. The shareholders approved a proposal to amend the Company's 1996 Equity
Incentive Plan to increase the number of shares issuable thereunder by an
aggregate of 3,300,000 shares (6,600,000 shares after giving effect to the
stock split).
<TABLE>
<CAPTION>
For Against Abstain Broker Non Votes
---- ------- ------- -----------------
<S> <C> <C> <C> <C>
15,514,548 974,863 47,354 3,089,021
</TABLE>
3. The shareholders approved a proposal to amend the Company's 1996 Employee
Stock Purchase Plan to increase the number of shares issuable thereunder by
an aggregate of 300,000 shares (600,000 shares after giving effect to the
stock split).
<TABLE>
<CAPTION>
For Against Abstain Broker Non Votes
---- ------- ------- -----------------
<S> <C> <C> <C> <C>
16,326,811 90,436 45,992 3,162,547
</TABLE>
4. The shareholders approved a proposal to change the Company's state of
incorporation from California to Delaware.
<TABLE>
<CAPTION>
For Against Abstain Broker Non Votes
---- ------- ------- -----------------
<S> <C> <C> <C> <C>
15,535,959 883,504 43,776 3,162,547
</TABLE>
5. The shareholders approved a proposal to increase the number of authorized
shares of Common Stock from 50,000,000 to 100,000,000.
<TABLE>
<CAPTION>
For Against Abstain Broker Non Votes
---- ------- ------- -----------------
<S> <C> <C> <C> <C>
19,469,131 110,289 46,366 --
</TABLE>
6. The shareholders approved a proposal to ratify the selection of Ernst &
Young LLP as independent auditors for the Company for the fiscal year
ending December 31, 1998.
<TABLE>
<CAPTION>
For Against Abstain Broker Non Votes
---- ------- ------- -----------------
<S> <C> <C> <C> <C>
19,575,279 9,576 40,931 --
</TABLE>
22
<PAGE> 23
ITEM 5. OTHER INFORMATION
On June 29, 1998, the Company appointed Jeffrey Berg, President and Chief
Executive Officer of International Creative Management, to its Board of
Directors.
In June 1998, the Company and Telecom Italia entered into a non-binding
Memorandum of Understanding to launch an Italian navigation hub joint venture.
The joint venture will program certain portions of www.tin.it, the Internet site
of TIN, a division of Telcom Italia and one of Italy's leading Internet access
providers, as well as providing an Italian language search and directory service
under the Excite brand. Subject to the completion and approval of the necessary
definitive agreements, the new service is expected to launch later this year.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits.
The Exhibits listed in the accompanying Exhibit Index are filed as part
of this report.
(b) The following reports on Form 8-K were filed during the quarter ended
June 30, 1998:
On April 1, 1998, the Company filed a Form 8-K/A under Item 7 which
amends the financial statements, exhibits or other portions of its
Current Report on Form 8-K dated February 2, 1998, related to the
completion of a transaction between the Company and MatchLogic, Inc.
(MatchLogic) whereby a wholly-owned subsidiary of the Company merged
(the Merger) with and into MatchLogic. Upon completion of the Merger,
MatchLogic became a wholly-owned subsidiary of the Company.
On April 17, 1998, the Company filed a Form 8-K under Item 5 announcing
that the Company entered into a definitive agreement to acquire
Classifieds2000, Inc. and under Item 7 regarding recent press releases.
On May 11, 1998, the Company filed a Form 8-K under Item 5 announcing
that the Company entered into a Netcenter Services Agreement with
Netscape Communications Corporation and under Item 7 regarding current
press releases.
On May 15, 1998, the Company filed a Form 8-K under Item 5 regarding
the restatement of the Company's consolidated audited financial
statements to reflect the acquisition of MatchLogic, a company that the
Company acquired in February 1998 in a transaction accounted for as a
pooling of interests.
On May 19, 1998, the Company filed a Form 8-K under Item 5 whereby the
Company reported selected data concerning its operations for the 30-day
period ended April 30, 1998, subsequent to its April 1, 1998
acquisition of Classifieds2000, Inc.
On June 1, 1998, the Company filed a Form 8-K under Item 5 regarding an
unsolicited business combination proposal.
23
<PAGE> 24
- --------------------------------------------------------------------------------
SIGNATURES
- --------------------------------------------------------------------------------
In accordance with the requirements of the Securities Exchange Act, the
Registrant has caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
EXCITE, INC.
Date: August 14, 1998 By: /s/ George Bell
-------------------------------------
George Bell
President and Chief Executive Officer
By: /s/ Robert C. Hood
---------------------------------------
Robert C. Hood
Executive Vice President,
Chief Administrative Officer and
Chief Financial Officer
24
<PAGE> 25
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
---------- -----------
3.03 Certificate of Amendment to Restated Articles of
Incorporation, which is incorporated by reference to
Exhibit 4.02 to the Registration Statement on Form S-8
(File No. 333-59329) filed with the Securities and
Exchange Commission on July 17, 1998.
10.01 Netcenter Services Agreement dated as of April 29, 1998
between the Registrant and Netscape Communication
Corporation.
10.02* Registrant's 1996 Equity Incentive Plan, as amended on
June 16, 1998, which is incorporated herein by reference
to Exhibit 4.04 to the Registrant's Statement on Form S-8
(File No. 333-59329) filed with the Securities and
Exchange Commission on July 17, 1998.
10.04* Registrant's 1996 Employee Stock Purchase Plan, as amended
on June 16, 1998, which is incorporated herein by
reference to Exhibit 4.05 to the Registrant's Statement on
Form S-8 (File No. 333-59329) filed with the Securities
and Exchange Commission on July 17, 1998.
27 Financial Data Schedule. (EDGAR version only)
* Indicates compensatory plan or arrangement.
25
<PAGE> 1
EXHIBIT 10.1
CONFIDENTIAL TREATMENT REQUESTED
NETCENTER SERVICES AGREEMENT
COVER SHEET
This Netcenter Services Agreement ("Agreement"), of which this page is a cover
sheet ("Cover Sheet"), is entered into as of this 29 day of April, 1998 (the
"Effective Date") by and between Netscape Communications Corporation, a Delaware
corporation ("Netscape"), and Excite, Inc., a California corporation ("Excite").
DESCRIPTION OF SERVICE: Development, programming, operation and production of
the Co-Branded Channels, Netscape Branded Search Service, including, without
limitation, the Search Results Pages, Classifieds and Directory Service for
Netcenter.
EXCITE BRAND SERVICE: http://www.excite.com, or such other URL as is the initial
point of access to Excite's Web Site.
TERRITORY: United States
LOCAL LANGUAGE: English
SERVICE PERIOD: 2 years beginning on the Launch Date.
<TABLE>
<S> <C>
ADDRESSES FOR NOTICE:
Excite: Netscape:
Excite, Inc. Netscape Communications Corporation
555 Broadway 501 East Middlefield Road, MS: MV-002
Redwood City, CA 94063 Mountain View, CA 94043
USA USA
Fax: (650) 568-6030 Fax: (650) 528-4123
Attn: General Counsel Attn: General Counsel
EXCITE, INC., NETSCAPE COMMUNICATIONS CORPORATION,
A CALIFORNIA CORPORATION A DELAWARE CORPORATION
Signature: /s/ GEORGE BELL Signature: /s/ MIKE HOMER
------------------------- -------------------------
Name: George Bell Name: Mike Homer
------------------------------ ------------------------------
Title: President and CEO Title: EVP of Website
----------------------------- -----------------------------
</TABLE>
<TABLE>
<CAPTION>
Attached Exhibits:
<S> <C>
Exhibit A: End User Registration
Exhibit B: Payment Terms
Exhibit C: Copy of Mutual Confidential Disclosure Agreement
Exhibit D: Priority Response Times
Exhibit E: Netscape Licensed Technology
Exhibit F: Excite Licensed Technology
Exhibit G: Channel Allocation
Exhibit H: Pro Forma Layout of a Co-Branded Channel Page; a Search
Results Page; Directory Service Page and the Netscape
Branded Search Service "Sampler"
Exhibit I: Warrant Purchase Agreement
</TABLE>
1
<PAGE> 2
CONFIDENTIAL TREATMENT REQUESTED
SERVICES AGREEMENT
IN CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN, THE PARTIES AGREE AS
FOLLOWS:
1. DEFINITIONS
"CHANNEL" means one of the topic specific areas providing content (at the top
level), links (either directory provided, or hand-programmed), community
components (i.e., mail, chat, discussion groups, etc.), e-commerce
opportunities/links, and other tools, resources, and applications pertaining to
the topic, identified as a Netscape channel or a Co-Branded Channel on Exhibit
G.
"CLASSIFIEDS" means Excite's "Classifeds2000" service which Classifieds shall be
integrated into the Co-Branded Channels and Netscape's Channels; provided,
however, that for purposes of this Agreement, Classifieds shall not include any
career-oriented or job posting features or services.
"CO-BRANDED CHANNELS" means (i) the Channels to be programmed and served by
Excite as set forth in Exhibit G attached hereto, (ii) the Interim Channels set
forth in Exhibit G and (iii) any Channels that Netscape and Excite shall agree
to designate in a writing executed by both parties as "Co-Branded Channels."
"CONFIDENTIAL DISCLOSURE AGREEMENT" means the Mutual Confidential Disclosure
Agreement between the parties a copy of which is attached to this Agreement as
Exhibit C.
"CONTENT PROVIDER" means any third party that is participating in the Service by
providing to the Service content and/or a link to a content-related site.
"CORE SERVICES" means services and applications offered by Netscape, as Netscape
may specify from time to time, that generally apply to Channels, including,
without limitation, services and applications containing discussion group, chat,
personalization, personal home page, member directory, email, instant messaging,
white and yellow pages and search features or functions.
"DIRECTORY SERVICE PAGES" means the Local Language HTML page initially served to
an end user in response to such end user "clicking" on any subject category
within the taxonomy of the Directory Service contained on a Channel or Search
Results Page, and all subsequent Local Language HTML pages served to such end
user in response to such end user "clicking" on a sub-category within the
taxonomy of the Directory Service contained on such initial page or any
subsequent page. Without limiting the generality of the foregoing, "Directory
Service Pages" include Local Language HTML pages served to an end user that
"click" on a sub-category within the taxonomy of the Directory Service contained
on a Directory Service Page.
"DIRECTORY SERVICE" means the development, production, operation and maintenance
of a service that serves to end users a taxonomy of subject categories and, in
response to an end user clicking on any such category, serves to such end user
(i) directory listings that link to Web sites related to such category or (ii)
sub-categories in the taxonomy related to such category and, in response to such
end users "clicking" on any such sub-category, directory listings that link to
Web sites related to such sub-category. Directory Service includes, without
limitation, Directory Service Pages.
"E-COMMERCE LISTINGS" means any of Excite's Content, other than Service Ad
Inventory, that (i) is included within the Co-Branded Channels, Search Results
Pages, and Directory Service Pages (provided such Directory Service Pages are
being served and sold by Excite) and (ii) generates Revenue, including, without
limitation, sponsorships and other promotions.
"EXCITE BRAND SERVICE" means Excite's Internet-related content service specified
on the Cover Sheet.
"EXCITE GRAPHIC" means HTML and/or GIF files, or files of such other format as
may be designated from time to time in writing by Netscape, which conform to the
then-current guidelines of the Net Search Program.
"EXCITE LICENSED TECHNOLOGY" means the technology set forth in Exhibit F
attached hereto. The source code portion of the Excite Licensed Technology shall
be Excite's Confidential Information.
"EXCITE NAMED ENTITY" means any of the ten (10) entities set forth in a written
notice delivered by Excite to Netscape as of the Effective Date (and any of such
entities' Affiliates); provided, that the total number of
2
<PAGE> 3
CONFIDENTIAL TREATMENT REQUESTED
Excite Named Entities does not exceed ten (10). Excite may change any Excite
Named Entity once per quarter upon prior written notice to Netscape delivered a
the quarterly review pursuant to Section 9.1.
"EXCITE'S CONTENT" means Content Provider listings and other materials supplied
by, managed by or under the control of Excite.
"EXCITE'S WEB SITE" means Excite's primary and best of breed Local Language Web
site, which is currently accessible by the public via the Internet at the URL
http://www.excite.com.
"INTERIM CHANNELS" means the Channels the parties shall mutually agree to on the
Effective Date in accordance with the provisions set forth in Exhibit G;
provided, that each such Channel shall only be deemed to be an "Interim Channel"
from the date of this Agreement through the first to occur of (i) receipt by
Excite of written Notice from Netscape providing that such Channel is no longer
an "Interim Channel" and (ii) the date that such Channel is fully functional and
made accessible by Netscape to Netcenter end users.
"LAUNCH DATE" means the date specified on Exhibit G.
"LOCAL LANGUAGE" means the language specified on the Cover Sheet.
"NET SEARCH PAGE" means the Local Language HTML page on Netscape's Web Site that
is currently accessible by the public via the Internet at the URL
http://home.netscape.com/home/internet-search, and/or such other URL or locators
as Netscape may designate.
"NET SEARCH PROGRAM" means Netscape's then-current program relating to the
placement of search and directory services on the Local Language Net Search Page
on Netscape's Web Site.
"NETCENTER FRONT PAGE" means the unmodified default HTML page first served to
end users that access Netcenter.
"NETCENTER WIDGET" means a pull down menu on the Netcenter Front Page that
allows an end user to choose an alternative, listed Internet search service to
process a specific Internet search query.
"NETCENTER" means that area of Netscape's Web Site which offers online services
and shopping opportunities to end users.
"NETSCAPE BRANDED SEARCH SERVICE" means the development, production, operation
and maintenance of a service that serves to end users an Internet search and
Directory Service, including integrated content, technologies and services that
(i) perform commensurately with, and have all of Netscape's selection (pursuant
to Section 3.1, below) of the features and functions available to end users
through, the then-current Excite Brand Service and (ii) may be accessed by end
users through interfaces and links designed from time to time by Netscape. The
Netscape Branded Search Services includes, without limitation, the Search
Results Pages.
"NETSCAPE LICENSED TECHNOLOGY" means the software and technology set forth in
Exhibit E. The source code portion of the Netscape Licensed Technology shall be
Netscape's Confidential Information.
"NETSCAPE NAMED ENTITY" means any of the ten (10) entities set forth in a
written notice delivered by Netscape to Excite as of the Effective Date (and any
of such entities' Affiliates); provided, that the total number of Netscape Named
Entities does not exceed ten (10). Netscape may change any Netscape Named Entity
once per quarter upon prior written notice to Excite delivered at the quarterly
review pursuant to Section 9.1.
"NETSCAPE'S WEB SITE" means the collection of Local Language HTML documents
targeted at end users in the Territory and currently accessible by the public
via the Internet at the URL http://home.netscape.com and/or at such other URL or
locations as Netscape may designate.
"PAYMENT" means the amount(s) specified in Exhibit B.
" * " means, for the purposes of Section 18.4 and as of the date 90 days after
the close of any such * ("Post-Closing Date") as described in Section 18.4: the
* , as defined in Exhibit B, less (i) the accrued * , as defined in Exhibit B,
and also less (ii) the following amounts depending on the date of the
Post-Closing Date:
- ------------
* Confidential Treatment has been requested with respect to certain portions of
this exhibit. Confidential portions have been omitted from the public filing
and filed separately with the Securities and Exchange Commission.
3
<PAGE> 4
CONFIDENTIAL TREATMENT REQUESTED
$ * if the Post-Closing Date occurs during the first
----------------------- quarter after the Launch Date;
$ * if the Post-Closing Date occurs during the second
----------------------- quarter after the Launch Date;
$ * if the Post-Closing Date occurs during the third
----------------------- quarter after the Launch Date;
$ * if the Post-Closing Date occurs during the fourth
----------------------- quarter after the Launch Date;
$ * if the Post-Closing Date occurs during the fifth
----------------------- quarter after the Launch Date;
$ * if the Post-Closing Date occurs during the sixth
---------------------- quarter after the Launch Date;
$ * if the Post-Closing Date occurs during the seventh
----------------------- quarter after the Launch Date;
$ * if the Post-Closing Date occurs during the eighth
----------------------- quarter after the Launch Date;
provided, however, that if at the time of the Post-Closing Date Netscape has
delivered all traffic guarantees hereunder (other than guarantees with respect
to Excite's search participation in the Net Search Program), there shall be no *
payable to Excite.
"REVENUE" means the gross revenue received by Excite for * received by Excite
for any other revenue generating activity derived directly on or from pages of
the Service.
"SEARCH RESULTS PAGE" means the Local Language HTML page that is served to an
end user in response to the submission of a query by such end user through the
Netscape Branded Search Service or in response to such end user "clicking" on a
directory listing served to such end user in response to the submission of a
query by such end user through the Netscape Branded Search Service.
"SERVICE AD INVENTORY" means the electronic advertising inventory sold and
served by Excite within the Co-Branded Channels, Directory Service Pages
(provided such Directory Service Pages are served and sold by Excite), Search
Results Pages and advertising sold in any "Classifieds" portion of the Service
under the control of Excite.
"SERVICE PERIOD" means that period identified on the Cover Page of this
Agreement.
"SERVICE" means the service described on the Cover Sheet, the operation of which
is the subject of this Agreement.
"TERM" means the period of time beginning on the Effective Date and ending on
the last day of the Service Period or upon such earlier time as this Agreement
is terminated.
"TERRITORY" means the target geographic area listed on the Cover Sheet.
provided, however, that if at the time of the Post-Closing Date the * less the
Netscape * is greater than the Prepayment less the * to date, then the * shall
equal zero dollars.
2. NETCENTER FRONT PAGE; CO-BRANDED CHANNELS
2.1. Netcenter Front Page. The Netcenter Front Page will be programmed and
served by Netscape. The Netcenter Front Page will be Netscape branded only and
neither Excite nor any Excite Named Entity will have any branding on the
Netcenter Front Page. Notwithstanding anything to the contrary, (i) AOL branding
that is integral to Netscape's promotion of Netscape AOL Instant Messenger or
(ii) sub-brands of services offered by any Excite Named Entity may appear on the
Netcenter Front Page so long as the primary brand of the Excite Named Entity
does not appear as a component of the sub-brand. A portion of the Netcenter
Front Page real estate will be used to highlight Co-Branded Channels provided by
Excite consistent with the channels provided by Netscape.
2.2. The Co-Branded Channels. Netscape shall include Netcenter as part of
Netscape's Web Site. The Channels will be allocated between the parties as set
forth in Exhibit G. The Co-Branded Channels will be included within Netcenter.
The Co-Branded Channels shall be offered in the Local Language and targeted
toward end users in the Territory. The Co-Branded Channels shall be modeled
after, yet differentiated from, Excite's Brand Service, in accordance with
Netscape guidelines therefor, and shall be consistent with the overall look,
feel and end user experience of Netcenter. Netscape may, upon reasonable advance
notice to Excite, revise the guidelines for the Co-Branded Channels and the
means whereby end users may access the Co-Branded Channels, provided that the
accessibility of the Co-Branded Channels within Netcenter is not materially
reduced. Netscape and Excite will cooperate in good faith to establish a
schedule to promptly implement changes to the Co-Branded Channels necessary to
comply with Netscape's revised guidelines. The search box appearing in Netscape
Channels and Co-Branded Channels will offer only the Netscape Branded Search
Service.
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* Confidential Treatment has been requested with respect to certain portions of
this exhibit. Confidential portions have been omitted from the public filing
and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
2.3. Co-Branded Channels Pages. Subject to the terms and conditions of this
Agreement, each page of each Co-Branded Channel will: (i) be produced and
managed by Excite, (ii) be served from a "Netscape.com" domain name (or such
other domain name as Netscape may determine), (iii) reside solely on Excite's
servers and (iv) substantially conform to the pro forma Co-Branded Channel page
layout attached hereto as Exhibit H as such Exhibit may be revised by Netscape
from time to time upon reasonable advance notice to Excite. Netscape and Excite
will cooperate in good faith to establish a schedule to promptly implement
changes to the Co-Branded Channels necessary to comply with Netscape's revisions
to the Co-Branded Channel page layout. All access to each page of the Co-Branded
Channels shall be deemed to be via Netscape's Web Site, and therefore shall be
Netscape traffic. Every page of each Co-Branded Channel shall be co-branded by
Netscape and Excite with each party's brand receiving prominence in accordance
with Exhibit H and such co-branding shall appear on a location designated by
Netscape above the fold on each such page in accordance with Exhibit H. The
Service and the Excite Brand Service may be run on the same or separate Excite
servers provided that the servers on which the Service is run shall be equal in
performance and reliability to the server on which the Excite Brand Service is
run throughout the Term. A user interface designated from time to time by
Netscape for the Netscape Branded Search Service shall be included by Excite on
each page within each Co-Branded Channel. Every page within each Co-Branded
Channel shall include a navigational toolbar which shall appear above the fold
and offer end users navigational controls within Netcenter. The overall look and
feel of the toolbar shall be determined by Netscape and be consistent with the
look and feel of the other navigational toolbars within Netcenter. Netscape may
specify that Excite implement other features within each Co-Branded Channel to
ensure consistency across Netcenter Channels and Excite will make reasonable
commercial efforts to provide the capability to facilitate the integration of
these other features into the Co-Branded Channels at the same level of
prominence that similar features are integrated into the Excite Brand Service to
the extent Netscape chooses to incorporate features and functionality as
developed by Excite. Excite will provide capability for Netscape to program
"recirculation" links in the Co-Branded Channels and Directory Service Pages,
Netscape Channels and Search Results Pages to drive traffic back to Netcenter.
Netcenter service links will be the only recirculation links.
2.4. Co-Branded Channels Name. Each page of each Co-Branded Channel shall
include a channel name mutually agreed upon by Netscape and Excite. Excite shall
not independently use such name without Netscape's prior written consent unless
such name is generic or descriptive or such use occurs in connection with
Excite's advertising sales and promotional efforts on behalf of the Co-Branded
Channels. If such name includes a co-branding component that is not generic or
descriptive, Excite may not use such name with Netscape's name expunged unless
such non-generic and non-descriptive component was already in use on the Excite
Brand Service prior to the Effective Date, in which case Excite grants Netscape
a royalty-free perpetual license to use such component in connection with the
Service. The Co-Branded Channels will be co-branded one level down from the
Netcenter Front Page and throughout all the pages linked within the Co-Branded
Channels. The top level branding bar and navigation bar will be provided by
Netscape. Channels programmed by Netscape will not include Excite's branding.
All Netscape Channels will be branded as Netscape shall determine in its sole
discretion.
2.5. Traffic and Reach. All pages generated and delivered within the Co-Branded
Channels, the Netscape Branded Search Service and Directory Service Pages shall
be deemed Netscape traffic. Excite agrees that for the purpose of third party
industry measurement metrics (such as * and *), the traffic (i.e., page-views)
within the aforementioned areas will be exclusively attributable to Netscape.
Excite and Netscape agree that, for their respective purposes and for the
purpose of third party industry measurement metrics (such as * and *), the
audience * and * within the aforementioned areas will be * to * parties.
Netscape and Excite will make good faith efforts to obtain the consent of third
party industry measurement firms and will * to * audience * and * to * for *
Pages and * Channel pages.
3. NETSCAPE BRANDED SEARCH SERVICE
3.1. Development.
3.1.1. Excite shall use its best commercial efforts to develop and deliver
to Netscape the Netscape Branded Search Service (including the technical
specifications therefor) by the Launch Date. The
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* Confidential Treatment has been requested with respect to certain portions of
this exhibit. Confidential portions have been omitted from the public filing
and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
Netscape Branded Search Service will (i) have the same features and functions as
the Internet search and Directory Service features and functions then-currently
available on Excite's Web Site to the extent Netscape elects to incorporate such
features and functions into the Netscape Branded Search Service, (ii) be
available through search field and directory graphics designed by Netscape,
(iii) except as provided in Section 3.3 with respect to Search Results Pages, be
branded as Netscape shall determine in its sole discretion, and (vi) be
consistent with the overall look, feel and end user experience of Netcenter. The
Netscape Branded Search Service "sampler" which is presented on the Net Search
Page will be co-branded in a manner substantially similar to the mock-up set
forth in Exhibit H.
3.1.2. In addition to, and not in limitation of, any other obligation of
Excite under this Agreement, Excite shall provide Netscape with written notice
of any new Internet search or directory service features or functionality to be
launched by Excite on the Excite Branded Service no less than the earlier of (i)
thirty (30) days prior to the commencement of the testing of such new
functionality by Excite, (ii) thirty (30) days prior to the launch of such new
functionality on the Excite Brand Service (the "Excite Launch"), or (iii) such
other period intended, in good faith, to provide Netscape with sufficient time
to evaluate the new feature or functionality with the goal of a concurrent
launch within Netcenter. Upon receipt of such notice, Netscape shall have ten
(10) business days to notify Excite in writing of Netscape's intention to
incorporate the new Internet search or directory service features or
functionality into the Netscape Branded Search Service and/or Directory Service
or Netscape shall be deemed to have elected to not incorporate the new Internet
search or directory features or functionality in any manner into the Netscape
Branded Search Service and/or Directory Service. If Netscape gives written
notice to Excite stating Netscape's intention to incorporate the new Internet
search or directory service features or functionality into the Netscape Branded
Search Service and/or Directory Service, Netscape and Excite shall make good
faith efforts to mutually agree on a schedule for the incorporation of such new
features or functionality in the Netscape Branded Search Service and/or
Directory Service with the goal of a concurrent launch, and each shall make
reasonable commercial efforts to incorporate the new features or functionality
by the scheduled implementation date. Nothing in this Section will require
Excite to delay the launch of any new Internet search or directory service
features or functionality on the Excite Branded Service.
3.2. Evaluation of the Netscape Branded Search Service. Upon delivery to
Netscape of the Netscape Branded Search Service or any improvement or other
modification thereof pursuant to Section 3.1, Netscape shall evaluate the
Netscape Branded Search Service to determine if the Netscape Branded Search
Service materially conforms to the specifications therefor and Netscape's
graphics design and provides the same features and functions as the search and
Directory Service features and functions available on Excite's Web Site
corresponding to those features and functions selected by Netscape pursuant to
Section 3.1. In the event that Netscape shall discover any error in the Netscape
Branded Search Service that prevents the Netscape Branded Search Service from
materially conforming to the specifications or Netscape's graphics design or, in
the event that the features and functions selected by Netscape pursuant to
Section 3.1 for incorporation into the Netscape Branded Search Services do not
include features and functions equivalent to the corresponding Internet search
and Directory Service features and functions then-currently available on
Excite's Web Site, Netscape will notify Excite of such errors and/or omissions
in writing and Excite shall then use its reasonable commercial efforts to
correct such error and/or omissions and redeliver to Netscape such modified
Netscape Branded Search Service. Upon receipt of such modified Netscape Branded
Search Service, Netscape shall re-evaluate the Netscape Branded Search Service
in accordance with this Section 3.2. In the event of a major malfunction of the
Service or any component thereof within Excite's control, Excite will use its
best efforts to immediately correct such malfunction.
3.3. Search Results Pages. Each Search Results Page will (i) be served to end
users that submit a query or "click" on a directory listing from a Netscape
branded search and/or directory user interface or link, or from a Search Results
Page, including, without limitation, any graphic designed by Netscape pursuant
to Section 3.1 or included by Netscape in the Net Search Program and any links
to the Netscape Branded Search Service from the Netcenter Widget, (ii) be
produced and managed by Excite, (iii) have a "Netscape.com" domain name (or such
other domain name as Netscape may determine), (iv) reside solely on Excite's
* and (v) be consistent with the overall look, feel and end user
experience of Netcenter. All access to the Search Results Pages shall be deemed
via Netscape's Web Site, and therefore shall be Netscape traffic. The Search
Results Pages will be predominantly Netscape branded (with * of * the * of
Netscape's branding) in accordance with the pro forma layout set forth in
Exhibit H, with * placement of the two brands to be reasonably
determined by Netscape. If the term * or * is used in conjunction with the
Excite brand, the * or * characters will not be counted in the relative brand
prominence. Excite agrees that
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* Confidential Treatment has been requested with respect to certain portions of
this exhibit. Confidential portions have been omitted from the public filing
and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
the Netscape Branded Search Service and the Excite Brand Service may be run on
the same or separate Excite servers provided that the servers on which the
Service is run shall be equal in performance and reliability to the server on
which the Excite Brand Service is run throughout the Term.
4. NET SEARCH PROGRAM
4.1. Participation in the Net Search Program. During the period commencing on
the date that Netscape shall launch the 1998/1999 Net Search Program through the
Term, Excite shall be entitled to participate as a "premier provider" in the Net
Search Program. Such participation shall be subject to Netscape's then-current
applicable Net Search Program guidelines. Excite shall be allocated on the Net
Search Page * percent (*%) of the premier random rotation in a single position
for the Excite Graphic for the duration of the Term. Excite may use its position
within the rotation to feature any one of * search and directory * and * or *
associated with the featured flagship Excite search and directory service, in a
manner substantially similar to the promotional use of Excite's premier provider
"sampler" in the 1997/1998 Net Search program, provided Netscape has been given
reasonable notice prior to any such change. Netscape and Excite will cooperate
in good faith to establish a schedule to implement promptly any such change.
During the 1998/1999 Net Search Program, Netscape agrees not to ___*___ a random
rotation percentage ___*___ than ___*___. During the 1999 ___*___, excluding
Netscape and Excite, will ___*___ than a ___*___ within the Net Search Program.
On a timeline to be mutually agreed, the parties will issue a joint press
release outlining Excite's participation in the Net Search Program and outlining
the allocation of Excite's Net Search rotation (where such timing will follow
the execution of Netscape's other Net Search Agreements). Netscape will price,
sell, manage and retain all revenue from the other Premier and Marquee Provider
positions on the Net Search Page. These positions will continue to send traffic
to the sites of those providers.
4.2. Netscape Branded Search Service. During the 1998/1999 Net Search Program,
Netscape shall allocate on the Net Search Page at least ___*___ of the premier
random rotation for a link to the Netscape Branded Search Service and,
commencing on the date that Netscape shall launch the 1999/2000 Netscape Program
through the Term, Netscape shall allocate on the Net Search Page at least
___*___ of the premier random rotation for a link to the Netscape Branded Search
Service.
4.3. Netcenter Widget. During the period commencing on the date that Netscape
shall launch the 1998/1999 Net Search Program through the Term and provided that
Netscape includes the Netcenter Widget, Netscape shall produce the Netcenter
Widget in a manner that permits end users to submit a query to Excite's Net
Search Program search engine and in a manner that displays the link to Excite's
Net Search Program search engine in a ___*___ to that of Excite's ___*___ in the
Net Search Program.
5. DIRECTORY SERVICE
5.1. Directory Service. During the Term, Excite will develop, operate and
maintain a Directory Service for Netcenter. The Directory Service for Netcenter
shall be fully functional on the Launch Date and shall be integrated into the
Co-Branded Channels and such other Channels as Netscape shall designate from
time to time. Except as otherwise agreed by the parties, Excite agrees that the
Directory Service for Netcenter shall be equivalent in function, features and
depth, including, without limitation, taxonomy, and shall be updated no less
frequently than the directory service available through the Excite Brand
Service, subject to Netscape's selection of directory features or functionality
pursuant to Section 3.1.
5.2. Taxonomy of Directory Service for Netscape Channels. Excite will provide
the capability for Netscape to deliver a subject based directory service that
would be presented to the user outside the context of a Channel. Excite will
also provide the capability for Netscape to deliver an alphabetically-based
directory service. To the extent that Excite develops a time-based or
location-based directory service for its own purposes, Excite will provide the
capability for Netscape to deliver these directories as well. Excite will
provide "cuts" of the directory to be integrated into the Netscape channels. The
technical teams will work in good faith to assure timely updates to the Netscape
Directory Service. Netscape may, with the assistance of Excite, determine the
taxonomy contained in any Directory Service to be included by Netscape in a
Channel (other than Co-Branded Channels). At Netscape's request from time to
time, upon reasonable advance notice to Excite, Excite shall modify and enhance
the taxonomy of any Directory Service included by Netscape in a Channel (other
than Co-Branded Channels). Netscape and Excite will cooperate in good
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* Confidential Treatment has been requested with respect to certain portions of
this exhibit. Confidential portions have been omitted from the public filing
and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
faith to establish a schedule to promptly implement changes to the Directory
Service necessary to comply with Netscape's revisions.
5.3. Directory Service Pages. Each Directory Service Page will (i) be served to
end users that "click" on a category or sub-category of the Directory Service
contained on a page within any Channel or on any Search Results Page or
Directory Service Page, (ii) be produced and managed by Excite, (iii) have a
"netscape.com" domain name (or such other domain name as Netscape may
determine), (iv) reside solely on Excite's *, (v) contain links to
recirculate traffic back to Netcenter based on keyword mapping mutually agreed
to by the parties which, in any event, shall recirculate traffic back to
Netcenter in a manner equivalent to the manner which Excite recirculates traffic
from its directory service pages in the Excite Brand Service back to the Excite
Brand Service to the extent that the Directory Service remains substantially
similar to the Excite Brand Service, and (vi) be consistent with the overall
look, feel and end user experience of Netcenter. All access to the Directory
Service Pages shall be deemed via Netscape's Web Site, and therefore shall be
Netscape traffic for all purposes, including, without limitation, third party
industry measurement metrics (such as * and *). Such Directory Service Pages
shall be Netscape branded; provided, that Excite shall be entitled to include
above the fold of each such Directory Services Page an indication that such page
is "powered by" Excite in a manner substantially similar to, and no greater or
smaller in size or prominence as, the attribution to Excite contained on the pro
forma Directory Service Page attached hereto as Exhibit H.
5.4. Directory Service for Netcenter Front Page. In the event that Netscape
shall determine to employ a directory oriented navigation model for the
Netcenter Front Page, Netscape may provide written notice thereof to Excite.
Upon receipt by Excite of any such notice, Excite agrees to use commercially
reasonable efforts to promptly develop for Netscape, in accordance with
specifications and a development schedule to be determined by the parties in
good faith, such directory oriented navigation model for the Netcenter Front
Page.
5.5. Netscape Programming Directory Service. In the event that Netscape decides
to take over responsibility for programming all or part of the Directory
Service, and upon ample prior notice to Excite and an agreed-upon transition
schedule, Excite shall deliver to Netscape all tools, technologies, and other
engineering resources as shall be reasonably necessary to permit Netscape to
manage, produce, operate, modify and support the Directory Service. In such
event, Excite shall also deliver to Netscape regular updates of Excite's
directory service in order for Netscape to maintain the Directory Service in
Netcenter.
6. SERVICE IMPLEMENTATION
6.1. Core Services; Classifieds.
6.1.1. Netscape shall include within the Service and Netscape Channels such
Core Services as Netscape shall from time to time determine. Excite agrees that
Excite shall not include, on any page of the Service, any services or
applications that contain features or functions included in any Core Service,
except for the Internet search and Directory features and functions that are
provided by Excite at Netscape's request and, to the greatest extent possible
that does not conflict with either of the parties' existing obligations,
Excite's Classifieds2000 service will be the provider of classifieds
functionality (excluding career and job posting classifieds) throughout the
Netcenter Service. Excite will make reasonable commercial efforts to provide the
capability either for Netscape or for Excite to facilitate the integration of
the Core Services into the Co-Branded Channels, Netscape Channels, Directory
Service Pages and the Netscape Search Results Pages at the same level of
prominence that these services are integrated into the Excite Brand Service to
the extent Netscape chooses to incorporate features and functionality as
developed by Excite pursuant to Section 3.1. Excite will have the right to sell
sponsorships in "bundles" (including channel sponsorships or ads) for the * that
are integrated into the Co-Branded Channels (i.e. ___*___ in the ___*___). These
chat and discussion forums can be co-branded at Excite's request. All other core
services will be Netscape branded or Netscape co-branded with another third
party.
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* Confidential Treatment has been requested with respect to certain portions of
this exhibit. Confidential portions have been omitted from the public filing
and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
6.1.2. To the greatest extent possible that does not conflict with either
of the parties' existing obligations, Excite's Classifieds2000 service will be
the provider of Classifieds functionality throughout Netcenter (other than
career and/or job areas) and all gross revenue derived from the Classifieds
shall be considered * and will be * to the terms set forth in Exhibit B.
6.2. Production, Technology and Content Programming. The Service shall use
substantially the same technology and advantages as Excite uses in the Excite
Brand Service and Excite's Web Site, subject to Netscape's design choices and
selection of Internet search or directory features or functionality pursuant to
Section 3.1, unless otherwise agreed to by the parties. Excite will adhere to
sub 5-second page delivery to the end user service levels for all pages served
within the Excite delivered portion of the Service. The Service shall not be
disadvantaged or suffer from inferior production, programming, content (unless
Excite is contractually restricted from providing such content to the Service
after having made good faith efforts to eliminate any such restrictions) or
performance relative to the Excite Brand Service. Excite shall in good faith
consider employing in the Service Netscape's technology, if available, rather
than a technology supplied by a Netscape Named Entity which competes with
Netscape products or services, provided that such use of Netscape's technology
does not reduce the performance or production of the Service as compared to
comparable elements of the Excite Brand Service on Excite's Web Site. Excite's
obligation to produce the Service, including production services, technology and
content programming which meet standards established by Excite on Excite's Web
Site and general industry standards, is a material obligation of Excite under
this Agreement. Netscape and Excite agree to work towards a page layout in the
Co-Branded Channels, Search Results Pages and Directory Service Pages which is
consistent with the page layout in Netscape's own Channels and Netcenter.
6.3. [INTENTIONALLY LEFT BLANK]
6.4. Content Restrictions.
6.4.1 Excite agrees that Excite shall not include on any page of the
Service (i) any search field or Directory Service, other than the Netscape
Branded Search Service and the Directory Service provided by Excite to Netscape
pursuant to Section 5.1, (ii) any advertisement, sponsorship, promotion or other
revenue generating links, listings or materials, other than the Service Ad
Inventory or E-Commerce Listings, (iii) any such other links, listings or
materials, except as are approved by Netscape in writing, (iv) E-Commerce
Listings, Service Ad Inventory, directory listings or other links, listings or
materials that serve to an end user any page on the Excite Web Site, subject to
the provisions of Section 6.5.3, (v) any application or service containing
features or functions contained in any Core Service (except for the Internet
search and Directory Service features and functions that are provided by Excite
and, to the greatest extent possible that does not conflict with either of the
parties' existing obligations as of the Effective Date, Excite's Classifieds2000
service, which will be the provider of classifieds functionality (other than
careers) throughout Netcenter, (vi) links, listings or other materials that
serve to an end user any page not within Netcenter, other than Service Ad
Inventory, E-Commerce Listings or other links, listings and materials approved
by Netscape in writing, subject to the provisions of Section 6.5.3, or (vii) any
Service Ad Inventory, E-Commerce Listings or other links, listings or materials
to any content, services or products offered by the Netscape Named Entities that
are directly competitive with content, services or products offered by Netscape.
Any promotion of Netscape Named Entities within these pages must be agreed to by
Netscape in advance of such promotion. On the Effective Date, the parties shall
* Excite Named Entities and Netscape Named Entities.
6.4.2 Excite will provide carriage to Netscape content and services to be
mutually agreed to by the parties. On Co-Branded Channels, Directory Service
Pages, Classifieds and Netscape Search Results Pages, Excite will refrain from
promoting or providing carriage to content and services directly competitive to
those of Netscape, including the Netscape Named Entities. Netscape will provide
carriage to the Co-Branded Channels in Netscape controlled parts of the Service
as mutually agreed.
6.4.3 Services and products which directly compete with Excite's Internet
services may not be promoted through advertising, e-commerce or sponsorship
deals or content deals within the pages and services served by Netscape in the
Service. The foregoing restriction shall not apply to: (i) AOL branding that is
integral to Netscape's promotion of Netscape AOL Instant Messenger, (ii)
sub-brands of services offered by any Excite Named Entity, so long as the
primary brand of the competitor does not appear as a component of the sub-brand,
(iii) the Net Search Program, and (iv) other Netscape contractual obligations
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* Confidential Treatment has been requested with respect to certain portions of
this exhibit. Confidential portions have been omitted from the public filing
and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
existing as of the Effective Date. Any other promotion of Excite Named Entities
within these pages must be agreed to by Excite in advance of such promotion.
6.5. Sale of Service Ad Inventory and E-Commerce Listings.
6.5.1. The Co-Branded Channel for * will provide an integrated set of
commerce properties contributed by Netscape and Excite (based on Channel
allocations). The parties will cooperate in good faith to maximize revenue
from * and ecommerce deals that involve both parties' Netcenter channels. Ad
banners and e-commerce links within Netscape managed content/services will be *
by Netscape. This includes the Netcenter Front Page, Netscape Channels, the Net
Search Page and Directory Service Pages in the Netscape Channels. Excite shall
be responsible for * all advertising, sponsorships and any other promotions
within the Service Ad Inventory and E-Commerce Listings in the Search Results
Pages, Directory Service Pages in the Co-Branded Channels and the Co-Branded
Channels, subject to the then-current Excite guidelines for advertising and
e-commerce partners. As of the Effective Date, Netscape has reviewed and
approved Excite's guidelines. If Excite management approval is required for any
category of advertisements, then Netscape shall also approve of such
advertisement before such advertisement is accepted for posting in the Service.
If Excite wishes to change its guidelines for advertising and e-commerce
partners, Excite shall so notify Netscape and the parties shall mutually agree
to any such change as it pertains to the Service Ad Inventory. The parties will
cooperate in good faith to maximize revenue from shopping and E-commerce deals
that involve both parties' Netcenter Channels. Advertising for * is * in the
Search Results Pages and the Co-branded Channels consistent with Excite's
applicable advertising sales policies.
6.5.2. Advertising and e-commerce services which Excite shall provide
include sales, order processing, serving Service Ad Inventory and E-Commerce
Listings, billing and collection and reporting pursuant to Section 9.2. In
selling Service Ad Inventory and E-Commerce Listings and providing advertising
and e-commerce services hereunder, Excite will carry out such services with
substantially the same diligence and vigor as it employs when selling,
managing or maintaining similar advertising and e-commerce on its own services
and Web sites. The parties acknowledge that nothing contained herein requires
that Service Ad Inventory or the E-Commerce Listings in the Service and in
Excite's Web Site be offered * .
6.5.3. All unsold ad banner inventory, after the delivery of any make goods
to advertisers, within the Service Ad Inventory shall be considered house ad
banner inventory. In the normal course of business, Excite may use ___*___ of
this house ad banner inventory to provide Excite's advertising customers with
make goods, provide promotional inventory and make other industry standard uses
of such excess inventory. Excite may also use its share of house inventory to
promote (i) Netcenter, (ii) the Co-Branded Channels and other services offered
by Excite in the Service, or (iii) to a maximum of ___*___ of Excite's share of
the house inventory, Excite's Internet services. Netscape may specify up to
___*___ of its share of the house inventory to promote Netcenter services
(including those co-branded services delivered by Excite). Both parties must
mutually approve any promotion outside these guidelines in advance. Either party
may use its allocation of house inventory as barter to third parties other than
Excite Named Entities or Netscape Named Entities.
6.5.4. Current Netscape * that fall into Excite channel areas will need to
be * into Excite's Co-Branded Channel for *. Excite will sell all other
categories within the * Channel where Netscape does not * have an * as Netscape
shall * Excite as of the Effective Date. Excite shall comply with * Netscape has
assuming such * of Excite. Should the parties' * the parties shall negotiate a
reasonable solution in good faith.
6.5.5. Prior to Excite selling any E-Commerce Listings on Directory Search
Pages in a Netscape Channel, Excite shall get Netscape's prior written approval.
For the duration of the term of the such contracts entered into by Excite, the
parties will share revenue for such E-Commerce Listings on the same basis as if
Excite had sold such E-Commerce Listing on the Directory Search Page in a
Co-Branded Channel.
6.6. Content Provider Participation in the Co-Branded Channels. Excite shall
determine the guidelines by which Content Providers may participate in the
Co-Branded Channels, provided such guidelines comply
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* Confidential Treatment has been requested with respect to certain portions of
this exhibit. Confidential portions have been omitted from the public filing
and filed separately with the Securities and Exchange Commission.
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with Netscape's specifications. With respect to each Content Provider that may
or does participate in the Co-Branded Channels, Excite will be responsible for
administering each such Content Provider's application and compliance with the
guidelines. If any such Content Provider fails to come into compliance after
receipt of notification, Netscape shall direct Excite to reduce or remove the
listing of a non-complying Content Provider.
6.7. Technical Support by Excite. During the Term, Excite shall provide
technical support services for the Service to Netscape on a timely basis,
appoint a technical contact to whom Netscape may address all technical questions
relating to the Service, and use its commercially reasonable efforts to promptly
remedy any material malfunctioning of the Service. Excite shall perform such
technical support in accordance with the terms set forth in Exhibit D, or as
otherwise provided herein. Excite shall be responsible for subscribers'
maintenance and support requirements in connection with the Service. Excite
shall be solely responsible for the purchase, implementation, maintenance and
support of all software and hardware required to fulfill its obligations under
this Agreement.
6.8. Netscape Technical Support. During the Term, Netscape shall provide
technical support services to Excite for the interaction between the Service and
other areas of Netcenter on a timely basis, appoint a technical contact to whom
Excite may address all technical questions relating to the technical interface
between such areas and use its commercially reasonable efforts to promptly
remedy any material malfunctioning of areas of Netcenter that interact with the
Service. Netscape shall be responsible for subscribers' maintenance and support
requirements in connection with Netscape's Web Site other than the Service.
Netscape shall be solely responsible for the purchase, implementation,
maintenance and support of all software and hardware required to fulfill its
obligations under this Agreement.
6.9. Proprietary Rights. If either party has contributed to the Service or the
Net Search Program intellectual property rights owned by that party, including,
without limitation, the Excite Graphic, the other party shall be granted a
royalty-free, worldwide license, without payment or other charge therefor, to
use, display, perform, reproduce and distribute such intellectual property
solely in connection with the Service and the Net Search Program for the
duration of the term of the Agreement, unless otherwise provided herein.
Copyrighted elements contained in a Service and the Net Search Program shall be
the property of the copyright owner.
6.10. Ownership. The Excite Licensed Technology, including, without limitation,
all intellectual property rights therein, shall be owned by Excite. Subject to
Excite's ownership of the Excite Licensed Technology, * to the Excite Licensed
Technology during the term of the Agreement, including, without limitation, all
intellectual property rights therein, * . After the term of the Agreement,
subject to the technology license described in Section 13 and Exhibit F, * to
the Excite Licensed Technology developed by or on behalf of Netscape, including,
without limitation, all intellectual property rights therein, * . The user
interface of the Netscape Branded Search Service, including, without limitation,
all intellectual property rights therein, shall be owned by Netscape. The
Netscape Licensed Technology, including, without limitation, modifications and
all intellectual property rights therein, shall be owned by Netscape. Other
copyrighted elements contained in the Service and the Net Search Program shall
be the property of the copyright owner. Except as otherwise provided in this
Section 6.10, jointly developed or conceived intellectual property rights shall
be owned as the parties shall, in good faith, agree.
7. END USER REGISTRATION AND CUSTOMER SUPPORT
7.1. User Registration. End users who wish to engage in certain activities in
the Co-Branded Channels may have to register as described in Exhibit A, as such
Exhibit may be revised by Netscape from time to time. Netcenter members will be
able to register for appropriate co-branded content through the personalization
offering. Netscape will develop the end user personalization offering. Until
such time as Netscape's personalization offering is developed, which is
estimated to be 90 days after the Launch Date, Excite may use its
personalization technology to provide personalization functions within the
Co-Branded Channels. Once the Netscape personalization offering is available,
Excite agrees to transition to Netscape's personalization offering in the
Co-Branded Channels after the availability of Netscape's personalization
offering according to a mutually determined schedule and transition plan. To
facilitate this transition, Netscape will give Excite as much advance notice of
the completion and specifications of the personalization offering as reasonably
possible and the parties will cooperate in good faith on hosting,
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* Confidential Treatment has been requested with respect to certain portions of
this exhibit. Confidential portions have been omitted from the public filing
and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
transition and implementation issues. The co-branded content for which users
register on Netcenter channels maintained by Excite will be integrated with
Netscape's member directory and personalization offering. Excite will support
Netscape's personalization through the deployment of Netscape LDAP/NIB software
and use of the Netscape personalization schema. Excite will support Netscape
personalized summaries through the deployment and provision of RDF+ based
summaries of content provided through the Excite Co-Branded Channels as
Netscape's personalization technology is developed. The user registration page
will be linked to the Netcenter Front Page as well as all other appropriate
pages in the Service as Netscape shall determine. Any and all information
regarding end users that is obtained by Excite through, or in connection with,
the Service will be subject to the terms and conditions of Exhibit A.
7.2. Netcenter Customer Support Programs. Excite shall provide customer support
features in the Co-Branded Channels consistent with Netscape's then current
customer support policies or as otherwise mutually agreed. Netscape may develop
additional Netcenter features and programs to help promote sales and customer
loyalty, and Excite shall implement such services and features when they are
developed, provided such implementation be reasonable and standard for
participants in Netcenter.
8. NETSCAPE PRODUCTS AND TECHNOLOGY
8.1. Optimize for Netscape Technology. In consideration of Excite participating
as an integral service partner within a core area of Netcenter and in order to
optimize the efficiency of the Service, during the Term:
8.1.1. Within all aspects of the Service, Excite shall ensure compatibility
with Netscape-released client software used by Netcenter members, especially the
latest Netscape-released version of Netscape Communicator client software or any
successor;
8.1.2. Excite shall implement within the Service a dynamic HTML interface
or the then current client software technology within the beta testing period of
the client software. Such dynamic HTML features shall be positioned in at least
one prominent content area within the Service and be operational and publicly
accessible at the time of the release of the new Netscape client products;
8.1.3. Excite shall consider the use of at least * of Netscape *
product (currently Netscape *) to maintain Excite's Web Site;
8.1.4. Within the Service, Excite shall not promote any client and server
software or online service that directly competes with Netscape's software or
service;
8.1.5. Excite shall display the "Netscape Now" button (or any successor
button) prominently on the * of Excite's Web Site, on * Service, and on any
page on * which contains a * or * for any *. On any page on which the
Netscape Now button is displayed, the Netscape Now button shall be at least *
to the virtual button, text link or graphic for any *. Netscape hereby grants
Excite a nonexclusive and nontransferable license to perform and display the
Netscape Now button directly in connection with fulfilling the foregoing
obligation. Excite's use of the Netscape Now button shall be in accordance with
the guidelines of the Netscape Now Program currently published at the URL
http://home.netscape.com/comprod/mirror/netscape_now_guidelines.html. Excite's
course of dealing with respect to other services it may operate shall be
governed by the terms of Section 8.2.
8.2. Course of Dealing. In consideration of (i) the use of the netscape.com
domain name for the Service, and (ii) the treatment of the Co-Branded Channels
as a fundamental part of the Netcenter service, until such time as Microsoft
fully publicly documents and makes available its operating systems' programming
interfaces sufficiently to enable Netscape to make use of all of the facilities
and resources of those operating systems on a basis equal to that of Microsoft,
Excite shall:
8.2.1. Within Excite.com, not accord Microsoft's Internet Explorer product
a position of preference and prominence, overall as well as on an element by
element basis, greater than that accorded Netscape and its products and
services; and
8.2.2. Not make content available solely to users of client software or
services other than Netscape's, or disfavor or disadvantage users of Netscape
client software or services in any way relative to users of other Internet
client software or services.
9. JOINT ACTIVITIES
9.1. Quarterly Reviews of the Service. Netscape and Excite agree to establish
quarterly reviews of the Service to evaluate the success of the Service and
agree to modifications and improvements to the Service.
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* Confidential Treatment has been requested with respect to certain portions of
this exhibit. Confidential portions have been omitted from the public filing
and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
9.2. Reporting. Excite will provide on-line, password protected access to a
daily user access log report (updated weekly) in common log format describing
the total number of page impressions for each of the pages in the Service, and
such other tracking information as the parties shall mutually agree, and (ii)
Netscape shall provide Excite with on-line, password protected access to reports
describing the number of redirects of traffic to the Co-Branded Channels from
Netscape's Web Site and such other tracking information as the parties shall
mutually agree. The information contained in the reports and logs shall be
maintained online for six (6) months and archived thereafter, and will be deemed
the Confidential Information of both parties for the purpose of the Confidential
Disclosure Agreement, provided, however that Netscape shall have the right to
use the information contained in such reports in Netscape's private and public
reporting of access to the Service and Netscape's Web Site.
9.3. Audit Rights. Excite shall retain complete, clear and accurate records
regarding its activities under this Agreement and the amount of Revenues. Each
April and October during the Term, the parties shall review the financial
results for the Service and access logs. Netscape shall have the right, upon no
less than 15 days prior written notice to Excite, to cause an independent
Certified Public Accountant to inspect and audit, during Excite's normal
business hours, all relevant records of Excite upon which Excite's revenue
reports for the Service are based and the access logs. The information contained
in the revenue reports and access logs will be deemed the Confidential
Information of Excite for the purpose of the Confidential Disclosure Agreement.
The costs of such audit shall be paid by Netscape, provided, however, that if
said inspection shall reveal an underreporting in excess of 5% in monies due to
Netscape by Excite or an annual underreporting in excess of 5% in traffic to the
Service as compared to any underreporting experienced by Excite on the Excite
Brand Service, Excite shall pay for the audit plus any underpayment and make
adjustments based on the underreporting of traffic, if applicable. Netscape's
audit rights as described herein shall continue for 2 years after the expiration
or termination of the Term.
9.4. Marketing Commitments; Press Plans.
9.4.1 Netscape will provide promotions of Co-Branded Channels across the
Netcenter service in prominent locations, on the Netcenter Front Page and in
promotional inventory. On the Netcenter Front Page and across Netcenter,
Netscape will not disadvantage the promotion of the Co-Branded Channels relative
to Netscape branded channels in its overall site promotion plans.
9.4.2 The home page of Netscape's Web Site will be Netscape branded only
and neither Excite nor any Excite Named Entity will have any branding on the
home page of Netscape's Web Site, with the exception of (i) AOL branding that is
integral to Netscape's promotion of Netscape AOL Instant Messenger or (ii)
sub-brands of services offered by any Excite Named Entity, so long as the
primary brand of the competitor does not appear as a component of the sub-brand.
9.4.3 Excite will create and maintain any marketing collateral required for
supporting the sales of the Co-Branded Channels, Netscape Search Results Pages
and the Directory Services Pages in the Co-Branded Channels.
9.4.4 Excite and Netscape agree to participate in a joint press
announcement regarding the Service which will take place on a mutually agreed
upon date. The parties shall agree to the form and content of the joint press
release. Either party may issue its own press release, subject to the other
party's prior approval of the content within the release. With respect to major
advertising and marketing deal announcements regarding the Service, Netscape and
Excite shall have 48 business hours to respond, in writing, to any proposed
announcement. In any press announcement regarding the Service, both Excite's and
Netscape's names shall be included in the press release, and the names shall
appear with equal prominence.
10. CONSIDERATION
For the benefits provided to Excite under this Agreement, Excite shall (i) pay
Netscape the Payment in the amount and subject to the terms set forth in Exhibit
B and, (ii) concurrently with the execution of this Agreement, enter into with
Netscape that certain Warrant Purchase Agreement attached hereto as Exhibit I
and, in accordance with the terms thereof, issue Excite warrants to Netscape.
11. EXPOSURE GUARANTEES
11.1 Quarterly Review. The parties agree to meet every quarter to review, and
adjust annually as necessary, the Net Search and Netcenter Widget rotations to
ensure delivery of the applicable impression and click-though guarantees.
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* Confidential Treatment has been requested with respect to certain portions of
this exhibit. Confidential portions have been omitted from the public filing
and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
11.2 * Guarantee. For Excite-branded Net Search, Netscape will make a traffic
guarantee of * over * . After * of such traffic guarantee is exceeded and upon
reasonable advance notice from one party to the other, the parties may mutually
agree to * Excite's rotation of Net Search Page * to control any * , and in such
case Netscape has the right to * search engine * on the Net Search Page. In the
event Netscape delivers Excite-branded Net Search Page * in excess of the
applicable * guarantee, Excite will pay Netscape for the excess * pursuant to
Exhibit B.
11.3 * Guarantee. Netscape will guarantee * from the * for Excite search. After
* of such * guarantee is exceeded and upon reasonable advance notice from one
party to the other, the parties may mutually agree to reduce Excite's exposure
in the * to control any * , and in such case Netscape has the
right to * search engine * within the * . In the event Netscape
delivers * in excess of the applicable annual * , Excite will pay Netscape for
the * pursuant to Exhibit B. Excite's placement in the * for the * of the term
of the Agreement. After the * of the Term of the Agreement, Netscape may remove
Excite from the *, so long as (i) Netscape also * from the *
and (ii) any * for Excite's portion of the * not delivered at the time Excite is
removed from the * will be * by delivering * the Excite-branded
search offering within Net Search Program.
11.4. * Guarantee. For Netscape Branded Net Search, Netscape will make a * of *.
Excite will pay Netscape in accordance with the terms set forth in Exhibit B.
11.5. * Guarantee. For Co-Branded Channels in Netcenter, Netscape will * of *
over * . Excite will pay Netscape in accordance with the terms set forth in
Exhibit B.
11.6 * Channels. Netscape will guarantee an additional * in the Net
Search Program area in consideration for the channels Excite * as
of the Effective Date. * will be allocated to Excite-branded search, and * .
Excite will pay Netscape in accordance with the terms set forth in Exhibit B.
11.7 No Adverse Change. Netscape will not change the form or function of the Net
Search page in a manner that materially adversely affects the performance of the
program as compared to its performance at the time the Agreement is executed. In
the event that Excite experiences adverse changes to its traffic from the Net
Search page following a change by Netscape to the form or function of the Net
Search page, Excite will promptly notify Netscape of the magnitude of the
change. Netscape will have ten (10) business days from receipt of Excite's
notice to * of the Net Search page * by Excite. Excite will reasonably cooperate
with Netscape in * in performance. Netscape will credit Excite with make good
impressions on the Net Search page to compensate Excite for traffic decreases
experienced by Excite for the period of time beginning on receipt of notice to
Netscape until the restoration of performance.
11.8 Make Goods. The make goods on all guaranteed impressions or click-throughs
will be delivered by Netscape continuing each under-delivered placement beyond
the term of the Agreement until the guaranteed amount associated with that
placement has been delivered. The make goods described in this Section shall be
Excite's sole and exclusive remedy with regard to the under-delivery of
impressions and/or click-throughs.
11.9 *. For Co-Branded Channel * traffic, traffic sources will
include Channel click-through from the Netcenter Front Page, ad banners, other
promotions, bookmarks, recirculation from other parts of Netcenter and other
forms of organic traffic generation that result in a unique visit to the
Co-Branded Channels.
12. HARMFUL CONTENT
Excite is solely responsible for any liability arising out of or relating to (i)
Excite's Content and/or (ii) any material under Excite's control to which
users can link through Excite's Content. Excite represents and warrants that
it holds the necessary rights to permit the use of Excite's Content by Netscape
for the purpose of this Agreement; and that Excite's Content and any material
under Excite's control to which users can directly link through Excite's
Content will not violate any applicable laws or rights of any third parties. If
Netscape is aware that Excite's Content or Excite's Web Site contains any
material that Netscape deems likely to cause Netscape material harm, Netscape
will inform Excite and may (i) not include Excite's Content at issue in the
Service, and/or (ii) terminate this Agreement if Excite has not revised to
Netscape's
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* Confidential Treatment has been requested with respect to certain portions of
this exhibit. Confidential portions have been omitted from the public filing
and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
satisfaction Excite's Content within five (5) business days after receipt of
written notice from Netscape. Netscape reserves the right not to include in the
Service any Excite's Content that does not substantially conform to the terms
set forth herein.
13. EXCITE LICENSED TECHNOLOGY
13.1. Deliverables. Upon the earlier of (i) * or (ii) the * of the Agreement
(subject to Section 18.4), Excite shall deliver to Netscape one complete and
accurate copy of the Excite Licensed Technology as set forth in Exhibit F.
13.2. License Rights. Subject to the terms and conditions of this Agreement,
Excite hereby grants to Netscape a perpetual, worldwide, royalty-free,
irrevocable, nonexclusive right and license to utilize the Excite Licensed
Technology, the rights to do as follows:
13.2.1. use, modify, enhance, create derivative works and subsets of,
reproduce and translate the Excite Licensed Technology;
13.2.2. compile all or any portion of the source code versions of the
Excite Licensed Technology into object code versions through the use of any
Netscape or other third-party compiler or other technology;
13.2.3. use the Excite Licensed Technology to run Netscape's or a third
party's website which it branded or at least co-branded with the Netscape brand;
and
13.2.4. sublicense any of the rights or licenses granted in this Section
13.2.
13.3. Support of Excite Licensed Technology. Upon delivery of the Excite
Licensed Technology by Excite to Netscape in accordance with Section 13.1,
Excite shall, at no charge to Netscape, provide sixty (60) person days of
engineering support. Excite shall provide to Netscape all "bug" fixes and error
corrections to the Excite Licensed Technology that are developed by or for
Excite. Additional support and engineering services will be provided by Excite
to Netscape, at Netscape's request from time to time, upon terms mutually agreed
to by the parties.
13.4 Source Code Escrow. As soon as reasonably practical after the Effective
Date, the parties will enter into a source code escrow agreement with a
nationally-recognized escrow agent, specifying the terms, conditions and
procedures under which the Excite Licensed Technology could be released to
Netscape in the event of certain events that would reasonably be considered to
jeopardize Netscape's rights to the Excite Licensed Technology hereunder.
14. NETSCAPE LICENSED TECHNOLOGY
14.1. Deliverables. During the Term, as soon as commercially practicable after
Netscape uses any Netscape Licensed Technology in connection with the production
or operation of Netcenter, Netscape shall deliver to Excite the Netscape
Licensed Technology set forth in Exhibit E.
14.2. License Rights. Subject to the terms and conditions of this Agreement,
Netscape hereby grants to Excite a nonexclusive, nontransferable right and
license (with no right to sublicense) to use the Netscape Licensed Technology in
connection with the development, production, programming, operation and
maintenance of the * during the *.
14.3. Support. Upon initial delivery of the Netscape Licensed Technology by
Netscape to Excite in accordance with Section 14.1, Netscape shall, at no charge
to Excite, provide * person days of engineering support.
14.4. Netscape Application Server (NAS)/KIVA Software. On the Effective Date,
Netscape grants Excite a * , nonexclusive and non-transferable license (with no
right to sublicense) to use, for Excite's * only, in accordance with the terms
set forth in the Netscape end user license agreement provided with such
software, the executable code of the Netscape Application Server (NAS) software
for up to * on any platform commercially available as of the Effective Date.
This license does not include any * . Notwithstanding anything to the contrary
set forth in this Section 14, all rights and licenses to the Netscape
Application Server (NAS) software shall be governed by the terms and conditions
of Netscape's standard end user license agreement included by Netscape with the
delivery of such software.
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* Confidential Treatment has been requested with respect to certain portions of
this exhibit. Confidential portions have been omitted from the public filing
and filed separately with the Securities and Exchange Commission.
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15. WARRANTIES
15.1. Performance. Excite warrants that (i) it has the right to perform the
services set forth in this Agreement, (ii) such performance does not infringe on
any third parties' proprietary or personal rights, and (iii) other than as
specifically set forth in this Agreement, Netscape shall not be obligated to pay
any fees or royalties for including the Service in Netcenter. Excite warrants
that the Service will function substantially in accordance with the terms set
forth in this Agreement. In any given * during the Service Period, the Service
shall have an uptime of at least * with industry standard downtime for
maintenance. Excite shall repair any malfunctions of the Service within a
reasonable period of time (not to exceed 2 days) after notice by any party of
such condition. Netscape warrants that (i) it has the right to perform the
services set forth in this Agreement, and (ii) Excite shall not be obligated to
pay any fees or royalties for participating in Netcenter other than as
specifically set forth in this Agreement. Netscape warrants that Netcenter will
function substantially in accordance with the terms set forth in this Agreement.
In any given * during the Service Period, Netcenter shall have an uptime of at
least * with industry standard downtime for maintenance. Netscape shall repair
any malfunctions of Netcenter within a reasonable period of time (not to exceed
2 days) after notice by any party of such condition.
15.2. Disclaimer. THE WARRANTIES PROVIDED BY THE PARTIES HEREIN ARE THE ONLY
WARRANTIES PROVIDED BY THE PARTIES WITH RESPECT TO THE SUBJECT MATTER OF THIS
AGREEMENT. SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES BY THE PARTIES,
EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT.
THE NETSCAPE LICENSED TECHNOLOGY AND EXCITE LICENSED TECHNOLOGY ARE PROVIDED "AS
IS," "WITH ALL FAULTS," WITHOUT WARRANTY OF ANY KIND AND NETSCAPE AND EXCITE,
RESPECTIVELY, DISCLAIM ALL OTHER WARRANTIES RELATED THERETO, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. NEITHER PARTY
WARRANTS THAT THE NETSCAPE LICENSED TECHNOLOGY OR EXCITE LICENSED TECHNOLOGY IS
ERROR-FREE OR THAT ITS OPERATION WILL BE SECURE OR UNINTERRUPTED.
16. INDEMNITY
16.1. Excite Indemnity. Excite shall indemnify, hold harmless and defend
Netscape from and against any and all claims, liabilities, losses, damages,
expenses and costs (including reasonable attorneys' fees and costs) arising out
of or relating to the * to which users can * through Excite's Content, or other
information supplied or managed by Excite (other than the Excite Licensed
Technology), or the negligence or intentional wrongdoing of Excite, except to
the extent that Netscape is responsible under Section 16.2. Excite will pay
resulting costs, damages and legal fees finally awarded in such action in a
court or in a settlement which are attributable to such claim provided that: (i)
Netscape promptly notifies Excite in writing of any such claim; (ii) Excite has
sole control of the defense and all related settlement negotiations, and (iii)
Netscape cooperates with Excite, at Excite's expense, in defending or settling
such claim.
16.2. Netscape Indemnity. Netscape shall indemnify, hold harmless and defend
Excite from and against any and all claims, liabilities, losses, damages,
expenses and costs (including reasonable attorneys' fees and costs) arising out
of or relating to the * portions * (and not including the Service, Excite's
Content and any * to which users can * through Excite's Content), any content
(other than the * and the *) provided by Netscape to Excite for use in the
Service in accordance with this Agreement, or the negligence or intentional
wrongdoing of Netscape, except to the extent that Excite is responsible under
Section 16.1. Netscape will pay resulting costs, damages and legal fees finally
awarded in such action in a court or in a settlement which are attributable to
such claim provided that: (i) Excite promptly notifies Netscape in writing of
any such claim; (ii) Netscape has sole control of the defense and all related
settlement negotiations, and (iii) Excite cooperates with Netscape, at
Netscape's expense, in defending or settling such claim.
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* Confidential Treatment has been requested with respect to certain portions of
this exhibit. Confidential portions have been omitted from the public filing
and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
17. LIMITATION OF LIABILITY
EXCEPT IN CONNECTION WITH EACH PARTY'S INDEMNIFICATION OBLIGATIONS SET FORTH IN
SECTION 16 OR A BREACH BY EITHER PARTY OF ITS CONFIDENTIALITY OBLIGATIONS AS
DESCRIBED IN SECTION 19.1, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER
FOR LOST PROFITS OR ANY FORM OF INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES OF ANY CHARACTER FROM ANY CAUSES OF ACTION OF ANY KIND WITH RESPECT TO
THIS AGREEMENT WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE),
OR OTHERWISE, AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE. THE LIABILITY OF EITHER PARTY FOR DAMAGES OR ALLEGED
DAMAGES HEREUNDER (EXCEPT FOR DAMAGES OR ALLEGED DAMAGES ARISING UNDER SECTION
16), WHETHER IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY IS LIMITED TO AND
SHALL NOT EXCEED THE AMOUNT * TO NETSCAPE UNDER THIS AGREEMENT.
18. TERM AND TERMINATION
18.1. Term. Unless earlier terminated pursuant to the provisions of Section 12,
Section 18 or as described in Exhibit A, this Agreement shall begin on the
Effective Date and end on the last day of the Service Period.
18.2. Termination for Cause. Either party shall have the right to terminate this
Agreement upon a material default by the other party of any of its material
obligations under this Agreement, unless within 30 calendar days after written
notice of such breach the breaching party remedies such default.
18.3. Rights Upon Termination or Expiration. Upon expiration or termination of
this Agreement, Excite and Netscape shall jointly own the information regarding
end users as described in Exhibit A. Netscape shall have the right, without any
additional payment, charge or royalty to Excite, to produce versions of the
Service which do not include Excite's proprietary technology, logo or name but
which might employ a graphic user interface which is substantially similar to
the graphic user interface of the Service. In order to continue to offer a
successor to the Service within Netcenter without interruption, Excite shall
promptly deliver Service-related information to Netscape or its designee. In
addition to the right to receive amounts payable at the time of the termination
or expiration of this Agreement, Section 6.9 ("Proprietary Rights"), Section
6.10 ("Ownership"), Section 7.1 ("User Registration"), Section 9.3 ("Audit
Rights"), Section 12 ("Harmful Content"), Section 13.2 ("License Rights"),
Section 15 ("Warranties"), Section 16 ("Indemnity"), Section 17 ("Limitation of
Liability"), Section 18.3 ("Rights Upon Termination or Expiration"), Section 19
("General"), and provisions in Exhibits attached hereto that provide for their
survival, shall survive the termination or expiration of this Agreement for any
reason. Provisions of other Sections which, by their nature, must remain in
effect beyond the termination or expiration of this Agreement, shall also
survive termination or expiration of this Agreement for any reason.
18.4 *
18.4.1 In the event of acquisition of * or any affiliate (wholly or
majority owned) of such company, Excite shall give Netscape prompt notice, and
Netscape may at its option: * rights to the * immediately, ask Excite to * the
Service for a * period of * after the close of the *, and * the Agreement
following the above. All such * will consist of a * of all day to day
operational responsibilities such that the partners can continue to pursue their
businesses *. If Netscape * the agreement, Netscape will pay Excite the * of
amortization on * , and all * by Excite related to any * as a result of this *
and * by Netscape on account of Excite's * , when such revenue is realized by
Netscape. * , Excite will have * into a new agreement that preserves Excite's
Net Search Program and Netcenter Widget rotations at the * specified herein for
the shorter of (i) twelve (12) months after the termination of this Agreement or
(ii) what * remainder of the term of the Agreement and any * applicable to
Excite's Net Search Program and Netcenter Widget rotations pursuant to Section
11.8.
- ------------
* Confidential Treatment has been requested with respect to certain portions of
this exhibit. Confidential portions have been omitted from the public filing
and filed separately with the Securities and Exchange Commission.
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<PAGE> 18
CONFIDENTIAL TREATMENT REQUESTED
18.4.2 In the event of * of Netscape by * , Netscape shall give Excite
prompt notice, and Excite may, at its option, * the agreement. If Excite elects
to * the agreement, Excite will continue to operate the Service for a * period
of * days after the close of * . All such * will consist of a * of all day to
day operational responsibilities such that the partners can continue to pursue
their businesses * . If Excite elects to terminate, Netscape will pay Excite the
* on Excite's * , and all * incurred by Excite related to any * as a result of
this * * booked by Netscape on account of Excite's * , when such revenue is
realized by Netscape. Except as set forth below, Netscape * license to the
Excite * pursuant to Section 13. However, if Excite * , Excite will have the *
into a new agreement that preserves Excite's Net Search Program and Netcenter
Widget rotations for what * the remainder of the term of the Agreement at the *
specified herein, provided if Excite * its technology pursuant to Section 13.
Netscape will inform Excite of which elements of * Netscape desires to * within
30 days of being notified of Excite's election.
18.4.3 In the event that Netscape * company that is an * , Netscape shall
give Excite prompt notice, and Excite may, at its option, * the agreement. If
Excite elects to * the agreement, Excite will continue to operate the Service
for a * period of * after the close of the * . Any such * will consist of a * of
all day to day operational responsibilities such that the parties can continue
to pursue their businesses * . If Excite elects to * , Netscape will pay Excite
the * on * by Excite related to any * as a result of this termination * booked
by Netscape on account of Excite's * , when such revenue is realized by
Netscape. Except as set forth below, Netscape * any license to the * pursuant to
Section 13. However, if Excite * this Agreement, Excite will have the * into a
new agreement that * Excite's Net Search Program and Netcenter * for what * the
remainder of the term of the Agreement at the CPMs specified herein provided
Excite elects to transfer the Excite Licensed Technology pursuant to Section 13.
Netscape will inform Excite of which elements of the * Netscape desires to
license within 30 days of being notified of Excite's election.
18.4.4. In the event that Excite * * , Excite shall give Netscape prompt
notice, and Netscape may, at its option, * , provided that Netscape will be
allowed to exercise its * , and that Excite will * the Service for a * period of
* days after the close of the * . Any such * will consist of a * of all day to
day operational responsibilities such that the parties can continue to pursue
their businesses * . In the event of termination, Netscape will pay Excite the *
on Excite's * or * , and all * by Excite related to any * as a result of this
termination and * of any revenue booked by Netscape on account of Excite's * ,
when such revenue is realized by Netscape. In the event Netscape * , except in
the event where Excite * , Excite will have the * into a new agreement *
Excite's Net Search Program and Netcenter * at the * specified herein for the *
of (i) * months after the termination of this Agreement or (ii) what the * of
the Agreement and any * applicable to Excite's Net Search Program and Netcenter
Widget rotations pursuant to Section 11.8.
18.4.5. * in this Section 18.4, * , subcontract or sublicense this
Agreement in its entirety to an entity acquiring the party, * does not * and is
not reasonably anticipated to change the scope of this Agreement or the quality
of the services to be provided hereunder. The * shall notify the other party
prior to any such assignment. Any attempt by either party to assign (by
operation of law or otherwise), subcontract or sublicense this Agreement except
as expressly permitted herein, shall be null and void. The entity managing the
Service subsequent to an assignment hereunder shall affirmatively agree in
writing to honor all commitments concerning the Service.
19. GENERAL
19.1. Confidentiality. The exchange of Confidential Information (as defined in
the Confidential Disclosure Agreement attached as Exhibit C) under this
Agreement shall be governed by the terms of the Confidential Disclosure
Agreement. In addition to information meeting the definition of Confidential
- ------------
* Confidential Treatment has been requested with respect to certain portions of
this exhibit. Confidential portions have been omitted from the public filing
and filed separately with the Securities and Exchange Commission.
18
<PAGE> 19
CONFIDENTIAL TREATMENT REQUESTED
Information in the Confidential Disclosure Agreement, the contents of this
Agreement and, subject to the terms of Exhibit A, End User Information, shall be
deemed Confidential Information thereunder.
19.2. Insurance. Excite, at its sole cost and expense, shall secure and maintain
adequate insurance coverage as is necessary, as a reasonable prudent
businessperson, for Excite to bear all of its obligations under this Agreement.
Excite's insurance shall be primary to any other insurance Netscape may have.
All insurance shall be written by companies with a current A.M. Best rating of
A-, VI or better.
19.3. Dispute Resolution. Any dispute hereunder will be negotiated between the
parties commencing upon written notice from one party to the other. Settlement
discussions and materials will be confidential and inadmissible in any
subsequent proceeding without both parties' consent. If the dispute is not
resolved by negotiation within 45 days following such notice, the parties will
refer the dispute to non-binding mediation conducted by JAMS/EndDispute in Santa
Clara County, California (the "Venue"). The parties will share the costs of
mediation. If the dispute is not resolved after 45 days of mediation, the
parties will refer the dispute to binding arbitration by JAMS/EndDispute in the
Venue. The results of any arbitration will be final and non-appeallable, except
that either party may petition any court of competent jurisdiction in the Venue
to review any decision relating to intellectual property matters (including the
scope of license rights), vacating or modifying erroneous conclusions of law or
findings of fact not supported by substantial evidence. The arbitrator may
fashion any legal or equitable remedy except punitive or exemplary damages,
which both parties waive. The arbitrator will render a written decision, which
may be entered in and enforced by any court of competent jurisdiction, but which
will have no preclusive effect in other matters involving third parties. The
losing party will pay the costs of the arbitration and the reasonable legal fees
and expenses of the prevailing party, as determined by the arbitrator. The
parties will jointly pay arbitration costs pending a final allocation by the
arbitrator. At any point in the dispute resolution process, either party may
seek injunctive relief preserving the status quo pending the outcome of that
process. Except as noted, the parties waive any right to judicial process.
California law, without regard to its conflict-of-law provisions, will govern
this Agreement. The U.S. Arbitration Act and JAMS/EndDispute rules will govern
the arbitration process. Absent fraudulent concealment, neither party may raise
a claim more than 3 years after it arises or any shorter period provided by
applicable statutes of limitations.
19.4. Notices. All notices required or permitted hereunder shall be given in
writing in the English language and shall be addressed to the respective parties
as set forth on the Cover Sheet and shall either be (i) personally delivered, or
(ii) transmitted by internationally-recognized private express courier, and
shall be deemed to have been given on the date of receipt if delivered
personally, or two (2) days after deposit with express courier. Either party may
change its address for purposes hereof by written notice to the other in
accordance with the provisions of this Subsection.
19.5. Determination of Equivalence. Subject to Netscape's selection of Internet
search and Directory features or functionality pursuant to Section 3.1, the
parties agree that any obligation of Excite herein that is required to be
performed in a manner that is equivalent to, or otherwise commensurate with, the
same level of performance of the Excite Brand Service shall be deemed a material
obligation of Excite. Excite shall be deemed to be in material breach of any
such obligation in the event that the features and functionality of the Excite
Brand Service comparable to Netscape's selected Internet search and Directory
features or functionality pursuant to Section 3.1 shall at any time be rated
higher than Netcenter on * or more of the * , nationally recognized, *
services.
19.6. Miscellaneous. (a) Neither party's waiver of a breach or delay or omission
to exercise any right or remedy shall be construed as a waiver of any subsequent
breach or as a waiver of such right or remedy. (b) This Agreement may be amended
only by a writing signed by both parties. (c) This Agreement creates no agency,
partnership, joint venture, or employment relationship and neither party nor its
agents have any authority to bind the other in any respect whatsoever. (d) All
rights not expressly granted by Netscape to Excite hereunder shall be reserved
by Netscape and all rights not expressly granted by Excite to Netscape hereunder
shall be reserved by Excite. (e) The section headings herein are used for
convenience only and shall have no substantive meaning. (f) In the event any
provision of this Agreement is held by a court or other tribunal of competent
jurisdiction to be unenforceable, such provision shall be reformed only to the
extent necessary to make it enforceable, and the other provisions of this
Agreement will remain in full force and effect. (g) Either party shall be
excused from any delay or failure in performance hereunder, except the payment
of monies by Excite to Netscape, caused by reason of any occurrence or
contingency beyond its
- ------------
* Confidential Treatment has been requested with respect to certain portions of
this exhibit. Confidential portions have been omitted from the public filing
and filed separately with the Securities and Exchange Commission.
19
<PAGE> 20
CONFIDENTIAL TREATMENT REQUESTED
reasonable control, including but not limited to, acts of nature. The
obligations and rights of the party so excused shall be extended on a day-to-day
basis for the period of time equal to that of the underlying cause of the delay.
(h) This Agreement, including the Cover Sheet hereto, constitutes the entire
agreement between the parties concerning the subject matter hereof and
supersedes all prior and contemporaneous agreements, and communications, whether
oral or written, between the parties relating to the subject matter of this
Agreement and all past courses of dealing or industry custom. (i) This Agreement
is written in the English language only, which language shall be controlling in
all respects. (j) This Agreement may be executed in counterparts or by
facsimile, each of which shall be deemed an original and all of which together
shall constitute one and the same agreement.
20
<PAGE> 21
EXHIBIT A
END USER REGISTRATION
I. DEFINITIONS
CO-BRANDED CHANNELS REGISTRATION means the portion of registration that is
specific to the Co-Branded Channels and which collects information pertaining to
the Co-Branded Channels. The functionality and design of the Co-Branded Channels
Registration will be specified by Netscape.
NETCENTER REGISTRATION means the portion of the registration that is maintained,
hosted, and controlled by Netscape and applies to multiple services across
Netcenter. Netcenter Registration includes the assignment of a username,
password, and the collection of core Netcenter user profile data including but
not limited to: First name, Last name, Address, City, State, Country, Zip Code,
Email Address, Age and Gender.
NETSCAPE REGISTRATION means any registration that is maintained, hosted, and
controlled by Netscape and applies to Netscape's Web Site. Netscape Registration
includes the assignment of a username, password, and the collection of core user
profile data including but not limited to: First name, Last name, Address, City,
State, Country, Zip Code, Email Address, Age and Gender.
EXCITE REGISTRATION means any registration that is (i) maintained, hosted, and
controlled by Excite and applies to Excite's Web Site or (ii) maintained, hosted
or controlled by a third party acting at Excite's direction if such registration
is directly linked to the Co-Branded Channels. Excite Registration includes the
assignment of a username, password, and the collection of core user profile data
including but not limited to: First name, Last name, Address, City, State,
Country, Zip Code, Email Address, Age and Gender.
CO-BRANDED CHANNELS LOGOUT - means the process by which a user ends his/her
session within a Co-Branded Channel. The functionality of the Co-Branded
Channels Logout will be specified by Netscape. The Co-Branded Channels Logout
Page is the page a user is served when he/she ends his/her session within a
Co-Branded Channel. Ending a Co-Branded Channel session does not automatically
log a user out of Netcenter. Netcenter will maintain control of the Netcenter
Logout process and Netcenter Logout page.
NETCENTER LOGOUT means the process by which a user completely logs out of
Netcenter. The Netcenter Logout page is the page served when a users chooses to
log out of Netcenter; the content and functionality of such page will be
determined by Netscape.
II. REGISTRATION PROCESS
End users who wish to participate in certain activities in Netcenter will have
to subscribe through Netscape's Netcenter Registration and Co-Branded Channels
Registration. Excite shall be responsible for the implementation of the
Co-Branded Channels Registration and the integration of the Co-Branded Channels
Registration with Netcenter Registration. The functionality, design, and,
integration of the Co-Branded Channels Registration and Netcenter Registration
will be specified by Netscape and subject to Netscape's terms and conditions as
defined in this Agreement. Such specifications and terms and conditions may be
revised by Netscape from time to time upon notice to Excite. Excite will
implement the changes within a 30 day period unless mutually agreed to
otherwise. The point of entry to the registration area front page shall be
hosted and controlled by Netscape unless otherwise determined by Netscape.
III. REGISTRATION FEATURES
The Co-Branded Channels Registration area shall be co-branded and have a look
and feel which is consistent with the implementation of the registration process
in other sections of Netcenter. Excite shall not launch the Co-Branded Channels
Registration until Netscape has notified Excite in writing that Netscape has
accepted Excite's implementation. Excite shall manage site access using
Netcenter site access models, as such site access models shall be determined by
Netscape from time to time upon notice to Excite. Netscape shall transfer to
Excite * to provide site access to * . Excite will make commercially reasonable
efforts to implement such changes within a 30 day period. End users shall be
informed that they are registering for all of Netcenter and not just for the
Co-Branded Channels. During the Co-Branded Channels Registration process, Excite
shall notify end users about the scope of use by Excite and Netscape of personal
data submitted through the registration process.
IV. DATA COLLECTION AND TRANSFER
Netscape will determine the data to be collected in the Co-Branded Channels
Registration process considering Excite's recommendations and technical
restrictions. Netscape reserves the right to change such data requirements from
time to time. Excite will make reasonable commercial efforts to implement
21
<PAGE> 22
these changes within 5 working days unless mutually agreed to otherwise. If
Netscape implements a Netcenter loyalty program, Excite shall also offer end
user loyalty selections as part of the Co-Branded Channels Registration process
at Netscape's request. Excite shall deliver to Netscape data collected pursuant
to such loyalty programs in a format and timeframe as Netscape shall determine.
As soon as practicable after the Effective Date, * will provide * with * ,
provided that such * not violate Excite's privacy policy or applicable
contractual obligations in existence as of the Effective Date, and * , provided
that such * not violate Netscape's privacy policy or applicable contractual
obligations in existence as of the Effective Date.
As soon as practicable after the Effective Date, the parties shall establish a
mutually agreeable format and schedule for the * , on the one hand, and * , on
the other, provided that such * occur as promptly as possible and not violate
either party's privacy policy or applicable contractual obligations in existence
as of the Effective Date. If Excite collects * accessing the Co-Branded Channels
in addition to information supplied by the users during the registration
process, * shall be made * in a format and timeframe as the parties shall
mutually agree.
V. NETCENTER CONSIDERATIONS
Third party programs participating in certain areas of Netcenter shall register
users with Netcenter when the user completes an order, if such user is not
already a registered Netcenter member. If a user is a registered Netcenter
member and accesses an order form for such third party program, Excite shall
prepopulate relevant customer data fields in the customer order form based on
information in the Netcenter database.
VI. UNSUBSCRIBE
All outbound communications from Excite to end users registered for the
Co-Branded Channels relating to the Co-Branded Channels must offer the end user
the option of unsubscribing from the outbound communication either through the
Co-Branded Channels or through Netcenter. In addition, Excite must offer the end
user a central and consistent interface to unsubscribe, cancel, renew, or sign
up for mutually selected advanced features which may be offered in the
Co-Branded Channels. This central account management interface will be mutually
designed by the parties. Excite must also offer end users a streamlined option
for unsubscribing completely from the Co-Branded Channels.
VII.*
On a going forward basis, Netscape and Excite will * , all subject to the
following restrictions and subject to Excite's and Netscape's privacy policies
and both parties' applicable contractual obligations in existence as of the
Effective Date. Excite and Netscape will make good faith efforts to implement
and maintain consistent*.
During the Term, Excite may not * collected about the * during Co-Branded
Channels Registration, Netcenter Registration or Netscape Registration for any
purpose other than marketing Netcenter programs to the users, * the parties*.
During the Term, Netscape may not * collected about the * during Excite
Registration for any purpose other than marketing Netcenter programs to the
users, * the parties*.
After the Term, both companies may market to * (other than * imposed by the
acquiring party's * at the time the *), provided that such marketing activity
does not violate either party's privacy policy or applicable contractual
obligations in *.
Compliance with one party's privacy policy with regard to * hereunder shall be
deemed a material obligation of the party receiving the * . A party shall be
deemed to be in material breach of the Agreement in the event that it fails to
comply with the originating party's privacy policy with regard to * hereunder.
- ------------
* Confidential Treatment has been requested with respect to certain portions of
this exhibit. Confidential portions have been omitted from the public filing
and filed separately with the Securities and Exchange Commission.
22
<PAGE> 23
EXHIBIT B
PAYMENT TERMS
The following terms shall have the meaning set forth below:
"EARNED AMOUNTS" means an amount equal to the sum of the aggregate Netscape
Revenue and the aggregate Traffic Payments.
"NETSCAPE REVENUE" means that portion of the Revenues payable by Excite to
Netscape as described below.
"PREPAYMENT" means the sum of * , as described below.
"TRAFFIC PAYMENTS" means the sum of the Net Search Payments and the Netcenter
Widget Payments.
"NET SEARCH PAYMENT" means the product of (a) the number of * of the Excite Net
Search Program premier sampler and (b) * is achieved pursuant to Section 11.2,
and * .
"NETCENTER WIDGET PAYMENTS" means the product of (a) the number of each * from
the Netcenter Widget to Excite's search engine accessible through the Netcenter
Widget and (b) * is achieved, pursuant to Section 11.3, and * .
PAYMENT:
1. Prepayment. Excite agrees to pay Netscape * dollars as the prepayment
("Prepayment") as follows: * upon execution of the Agreement, and * within 60
days thereafter, subject to Section 18.4. As described in the Warrant Purchase
Agreement, attached hereto as Exhibit I, Excite will also provide warrants
valued at $35 million upon signature of the agreement: $25 million of which
warrants will be made available on April 30, 1998, and $10 million of which will
be made available on April 30, 1999.
2. Search Pricing. Net Search page impressions will be priced at * until the
initial Net Search and traffic goals of * impressions are achieved, as described
in Section 11.2. Thereafter, such page impression will be priced at * . The
search * resulting from the Netcenter Widget will be priced at * until the
initial Netcenter Widget goals of * are achieved, as described in Section 11.3.
Thereafter, such * will be priced at * .
3. Payment. Excite agrees to pay to Netscape as the Netscape Revenue * during
the first year commencing on the Launch Date, and * thereafter. Excite agrees to
pay to Netscape all * .
4. Credit Against Payment. After the minimum guarantee for impressions of the
Excite sampler in the Net Search Program set forth in Section 11.2 has been
achieved, Excite shall provide Netscape with an advertising credit equal to * of
the product obtained by multiplying * of the Excite sampler in the Net Search
Program. After the minimum guarantee for * on Excite's search engine in the
Netcenter Widget has been achieved as set forth in Section 11.3, Excite shall
provide Netscape with an advertising credit equal to * of the product obtained
by multiplying * to Excite's search engine through the * . Excite shall, at
Netscape direction, apply the advertising credit outstanding from time to time
against the cost of Netscape's participation in advertising programs on Excite's
Web Site at the rates for such advertising services as set forth on Excite's
advertising rate card. Excite and Netscape shall discuss in good faith, and
mutually agree as to, Netscape's participation in advertising programs on
Excite's Web Site, including, without limitation, the schedule and placement of
Netscape's advertisements on Excite's Web Site.
5. Timing of Payment. No amounts shall be payable by Excite to Netscape pursuant
to paragraph 3, above, until the Earned Amounts shall exceed the Prepayment.
Within 15 days after the end of each calendar quarter during the Service Period,
Excite shall deliver to Netscape a report describing in detail the calculation
of amounts payable by Excite to Netscape pursuant to paragraph 3 above and the
amount of advertising credits pursuant to paragraph 4 above for such calendar
quarter, and shall pay to Netscape such amounts as described above.
6. Currency, Interest and Taxes. All amounts payable hereunder are denominated
in U.S. Dollars, and all amounts payable to Netscape hereunder shall be remitted
in U.S. Dollars. Any portion of the Payment which has not been paid to Netscape
within the applicable time set forth herein shall bear interest
- ------------
* Confidential Treatment has been requested with respect to certain portions of
this exhibit. Confidential portions have been omitted from the public filing
and filed separately with the Securities and Exchange Commission.
23
<PAGE> 24
at the lesser of (i) 1% per month, or (ii) the maximum amount allowed by law.
All payments due hereunder are exclusive of any applicable taxes. Excite shall
be responsible for all applicable national, state and local taxes, value added
or sales taxes, exchange, interest, banking, collection and other charges and
levies and assessments pertaining to payments other than U.S. taxes based on
Netscape's net income. If Excite is required by law to make any deduction or to
withhold from any sum payable to Netscape by Excite hereunder, (i) Excite shall
effect such deduction or withholding, remit such amounts to the appropriate
taxing authorities and promptly furnish Netscape with tax receipts evidencing
the payments of such amounts, and (ii) the sum payable by Excite upon which the
deduction or withholding is based shall be increased to the extent necessary to
ensure that, after such deduction or withholding, Netscape receives and retains,
free from liability for such deduction or withholding, a net amount equal to the
amount Netscape would have received and retained in the absence of such required
deduction or withholding. This Exhibit shall survive termination or expiration
of this Agreement.
24
<PAGE> 25
EXHIBIT C
COPY OF MUTUAL NON-DISCLOSURE AGREEMENT
25
<PAGE> 26
MUTUAL CONFIDENTIAL DISCLOSURE AGREEMENT
WHEREAS, Netscape Communications Corporation ("Netscape") has developed
unique and proprietary computer programs; and
WHEREAS, Excite, Inc. ("Company") and Netscape wish to discuss a proposed
business relationship between Netscape and Company.
NOW THEREFORE:
Each party (the "Receiving Party") understands that the other party (the
"Disclosure Party") has disclosed or may disclose information (including,
without limitation, computer programs, code, algorithms, names and expertise of
employees and consultants, know-how, formulas, processes, ideas, inventions
(whether patentable or not), schematics and other technical, business, financial
and product development plans, forecasts, strategies and information) which, to
the extent previously, presently, or subsequently disclosed to the Receiving
Party is hereinafter referred to as "Proprietary Information" of the Disclosing
Party. All Proprietary Information disclosed in intangible form by the
Disclosing Party shall be marked "confidential" or "proprietary" and all
Proprietary Information disclosed orally or otherwise in intangible form by the
Disclosing Party shall be designated as confidential or proprietary at the time
of disclosure and shall be reduced to a writing marked "confidential" or
"proprietary" and delivered to the Receiving Party within thirty (30) days
following the date of disclosure.
In consideration of the parties' discussions and any access the Receiving
Party may have to Proprietary Information of the Disclosing Party, the Receiving
Party hereby agrees as follows:
1. The Receiving Party agrees (i) to hold the Disclosing Party's
Proprietary Information in confidence and to take all necessary precautions to
protect such Proprietary Information, (ii) not to divulge any such Proprietary
Information or any information derived therefrom to any third person, (iii) not
to make any use whatsoever at any time of such Proprietary Information except to
evaluate internally whether to enter into the currently contemplated business
relationship with the Disclosing Party, (iv) not to remove or export any such
Proprietary Information from the country of the Disclosing Party, and (v) not to
copy or reverse engineer, reverse compile or attempt to derive the composition
or underlying information of any such Proprietary Information. The Receiving
Party shall limit the use of and access to the Disclosing Party's Proprietary
Information to the Receiving Party's employees who need to know such Proprietary
Information for the purpose of such internal evaluation and shall cause such
employees to comply with the obligations set forth herein. The Receiving Party
shall treat the Proprietary Information with at least the same degree of care
and protection as it would use with respect to its own proprietary information.
The foregoing obligations shall survive for a period of three (3) years from the
date of disclosure of the Proprietary Information. Without granting any right or
license, the Disclosing Party agrees that the foregoing shall not apply with
respect to information that (i) is in the public domain and is available at the
time of disclosure or which thereafter enters the public domain and is
available, through no improper action or inaction by the Receiving Party or any
affiliate, agent or employee of the Receiving Party, or (ii)
<PAGE> 27
was in the Receiving Party's possession or known by it prior to receipt from the
Disclosing Party, or (iii) was rightfully disclosed to the Receiving Party by
another person without restriction, or (iv) is independently developed by the
Receiving Party without access to such Proprietary Information, or (v) is
required to be disclosed pursuant to any statutory or regulatory authority,
provided the Disclosing Party is given prompt notice of such requirement and the
scope of such disclosure is limited to the extent possible, or (vi) is required
to be disclosed by a court order, provided the Disclosing Party is given prompt
notice of such order and provided the opportunity to contest it.
2. Immediately upon (i) the decision by either party not to enter into a
business relationship, or (ii) a request by the Disclosing Party at any time,
the Receiving Party will turn over to the Disclosing Party all Proprietary
Information of the Disclosing Party and all documents or media containing any
such Proprietary Information and any and all copies or extracts thereof. The
parties understand that nothing herein (i) requires the disclosure of any
Proprietary Information, which shall be disclosed, if at all, solely at the
option of the Disclosing Party, or (iii) requires either party to proceed with
any proposed transaction or relationship in connection with which Proprietary
Information may be disclosed.
3. Except to the extent required by law, neither party shall disclose the
existence or subject matter of the negotiations or business relationship
contemplated by this Agreement.
4. The Receiving Party acknowledges and agrees that due to the unique
nature of the Disclosing Party's Proprietary Information, there may be no
adequate remedy at law for any breach of its obligations. The Receiving Party
further acknowledges that any such breach may allow the Receiving Party or third
parties to unfairly compete with the Disclosing Party resulting in irreparable
harm to the Disclosing Party and, therefore, that upon any such breach or any
threat thereof, the Disclosing Party shall be entitled to seek appropriate
equitable relief in addition to whatever remedies it may have at law. The
Receiving Party will notify the Disclosing Party in writing immediately upon the
occurrence of any such unauthorized release or other breach.
5. Neither party acquires any intellectual property rights under this
Agreement or through any disclosure hereunder, except the limited right to use
such Proprietary Information in accordance with this Agreement. No warranties of
any kind are given with respect to the Proprietary Information disclosed under
this Agreement or any use thereof, except as may be otherwise agreed to in
writing.
6. This Agreement supersedes all prior discussions and writings with
respect to the subject matter hereof, and constitutes the entire agreement
between the parties with respect to the subject matter hereof. No waiver or
modification of this Agreement will be binding upon either party unless made in
writing and signed by a duly authorized representative of each party and no
failure or delay in enforcing any right will be deemed a waiver. In the event
that any of the provisions of this Agreement shall be held by a court or other
tribunal of competent jurisdiction to be unenforceable, the remaining portions
hereof shall remain in full force and effect. This Agreement shall be governed
by the laws of the State of California without regard to conflicts of
<PAGE> 28
laws provisions thereof and each party submits to the jurisdiction and venue of
any California State or federal courts generally serving the Santa Clara county
area with respect to the subject matter of this Agreement.
NETSCAPE COMMUNICATIONS EXCITE, INC.
CORPORATION
By: /s/ Mike Homer By: /s/ George Bell
------------------------------ ------------------------------
Address: Address:
501 East Middlefield Road 555 Broadway
Mountain View, CA 94043 Redwood City, CA 94063
Date: April 3, 1997 Date: April 3, 1997
<PAGE> 29
EXHIBIT D
PRIORITY RESPONSE TIMES
Excite shall provide to Netscape support services for the Netscape Branded
Search Service, Classifieds, Directory Service and Co-Branded Channels, and [*]
shall provide support services for [*] consistent with the following support
obligations:
1. DEFINITIONS
1.1 "ERROR" means any instance where the Excite-controlled portions of
the Service or Netcenter does not substantially conform to agreed-upon features
and specifications.
1.2 "WORKAROUND" means a method by which a user of a product can, by
making a limited number of procedural or programming changes in a product,
prevent the occurrence or re-occurrence of an Error. Programming changes include
adjustments to set-up and configurations files or other settings that do not
require recompilation.
1.3 "RESPOND" means and includes: taking and logging the Error call;
in the case of Priority 1 Errors, providing to the reporting party an
action/resolution plan within four (4) hours of initial call receipt and
acknowledgment; and, in cases of Priority 1 and 2 Errors, making best efforts on
a continuing basis to cure the Error until the Error is cured.
2. OBLIGATIONS
2.1 ERROR REPORTING. Errors may be reported on a 24 hours per day, 365
day per year basis. During normal business hours, each party's technical staff
shall be available to receive Error reports directly from the other party by
telephone. Outside of normal business hours, Errors may be reported by pager,
electronic mail, voice mail, fax or telephonic recording capability. Each party
shall provide the other with a pager number for both a primary and secondary
pager which will be carried by appropriate support personnel at all times and to
which Errors may be reported at any time.
2.2 SUPPORT REQUESTS. Each party will Respond and use best efforts to
correct or provide a Workaround to Priority 1 and Priority 2 Errors that the
other party identifies, classifies and reports; and will use reasonable
commercial efforts to Respond to other Errors within the time frames set forth
below.
<TABLE>
<CAPTION>
- ----------- --------------------------------------------------- -------------------------------- ----------------- ---------------
PRIORITY NOTIFICATION MECHANISM STATUS TARGET
ERROR TITLE AND EXPLANATION & REQUIRED TIME REPORTS (IN REPAIR TIME
TO RESPOND RESPONSE TO
ERRORS)
- ----------- --------------------------------------------------- -------------------------------- ----------------- ---------------
<S> <C> <C> <C> <C>
1 Fatal Error--No useful work can be done. Voice or Pager: 15/30 minutes Twice Daily 2 days
7X24 coverage (7X24) (7X24)
- ----------- --------------------------------------------------- -------------------------------- ----------------- ---------------
2 Severe Impact--Functionality disabled. Voice or Pager: 1 hour Twice Daily 5 days
Errors which result in a lack of application 7X24 coverage
functionality or cause intermittent system failure.
- ----------- --------------------------------------------------- -------------------------------- ----------------- ---------------
3 Degraded Operations--Errors causing Voice or Pager: 1 hour Daily 10 business
malfunction of non-critical functions. Email: 8 hours (business days) days
business day coverage
- ----------- --------------------------------------------------- -------------------------------- ----------------- ---------------
4 Minimal Impact--Attributes and/or options to Voice or Pager: 2 hours Weekly Next Release
ancillary features do not operate as stated. Email: 8 hours (business days)
business day coverage
- ----------- --------------------------------------------------- -------------------------------- ----------------- ---------------
5 Enhancement Request. Voice: 8 hours Weekly No
business day coverage (business days) Requirement
- ----------- --------------------------------------------------- -------------------------------- ----------------- ---------------
</TABLE>
26
<PAGE> 30
EXHIBIT E
NETSCAPE LICENSED TECHNOLOGY
* and related documentation for:
- -----
o *
-----
o * cross firewall *
----- -----
o Netscape * (for use with * )
----- -----
o *
-----
o Netscape * applications
-----
- ------------
* Confidential Treatment has been requested with respect to certain portions of
this exhibit. Confidential portions have been omitted from the public filing
and filed separately with the Securities and Exchange Commission.
27
<PAGE> 31
EXHIBIT F
EXCITE LICENSED TECHNOLOGY
Excite Licensed Technology includes the General Production and Page Generation
Technology, as defined below, and all other technology used, upon expiration or
termination of the Term, in connection with the operation, production,
development, management and support of the Service, including, without
limitation, all web search and directory indexes, all technology used to
generate such indexes, detailed information in respect of the major routines
used by Excite to process file system requests and file format, and all related
source code, schematics, flow charts, source files for, and other documentation,
so as to enable a software developer having average skill and ability in
computer application programming to understand, use, maintain and modify the
Excite Licensed Technology based solely on such programmer's familiarity with
the Excite Licensed Technology. "General Production and Page Generation
Technology" means all tools, templates, engines and other technologies used by
Excite upon expiration or termination of the Term for general production of the
Service and page generation. Without limiting the generality of the foregoing,
"General Production and Page Generation Technology" includes all source code,
schematics, flow charts and source files for, and all other documentation
related to, the "General Production and Page Generation Technology."
This license will cover Excite's then current technology used on Netcenter at
the end of the period for building and managing the Netscape Web search and
Netcenter directory indexes ("Indexes") as well as dynamic page generation tools
which are used over the term of the agreement to construct/create the pages
making up the Netscape programmed portion of the site. This license will not
cover Excite's technologies comparable in function to Netscape's Core Service
functions, Excite's Jango technology, indices and/or databases derived from
Excite's Jango technology, Excite's Newstracker technology, any technology
related to non-Web data feeds or streams, user databases (other than as
described in Exhibit A), Excite's advertising serving or targeting technology,
Excite's content targeting technology. any of MatchLogic's technology or any of
Classifieds2000's technology. Netscape will pay license fees at a $.50 CPM up to
a maximum of $125,000 per year for a maximum of 4 years. On-going consulting and
maintenance fees (including Directory maintenance and/or technology
maintenance), if desired by Netscape, will be mutually agreed upon. Excite's
technology includes source code and documentation for the following:
o Spiders/Crawlers:
o All spiders used to collect Web pages for purposes of populating all
Indexes.
o All source code/logic that regulates spidering heuristics to determine
which Web pages are spidered and the frequency with which they are
spidered. This includes, but is not limited to, anti-Spam and anti-porn
heuristics.
o Indexes of all Web pages spidered and indexed including, but not limited
to:
o List and taxonomy of all Web pages in Indexes.
o Indexing technology/tools used to increase relevancy rankings and matching
of Web pages to search queries.
o All technology/tools used to search Indexes including proprietary
technology for optimizing relevancy algorithms.
o All technology/tools to optimize performance on return of results pages
from Indexes, or any other channel query, including, but not limited to:
o Caching technologies applicable to Web search.
o Fail over mechanisms that ensure high availability of Indexes.
o Security mechanisms that prevent unauthorized access/work on Indexes.
o All production processes, database technology (used to store, index, and
search Web pages), tools, and APIs to facilitate interoperability of
spiders, Indexes, and page building capabilities necessary to Netscape to
continue providing search and directory functionality substantially similar
to those provided by Excite to Netscape during the term of the agreement.
o All technology/tools used for integrating or selecting between Indexes.
o All technology/tools to prioritize and determine returned results.
o All tools, templates and engines used for general production and page
generation during the term of the agreement and necessary for Netscape's
ongoing provision of the service.
o All tools for generating and maintaining taxonomies on Indexes.
o All other proprietary tools and technologies used for developing, building
and maintaining Indexes not specifically covered by this document.
o Excite will provide Netscape with twelve person weeks of engineering
support when the above technology is provided.
o To the extent that Excite acquires or develops new technologies relevant to
Web search and directories during the term of the Agreement that are not
incorporated into Excite's own branded search/directory offering, Excite
will offer to make such technologies available to Netscape for
incorporation into Netcenter and the technology transfer license if the
parties can agree after good faith negotiations on terms for the
incorporation of such new technologies.
Upon the first anniversary of the Effective Date, Excite shall provide
engineering resources to Netscape for purposes of educating Netscape on the
Excite Licensed Technology in order to coordinate Netscape's implementation of
the Excite Licensed Technology on termination.
28
<PAGE> 32
EXHIBIT G
CHANNEL ALLOCATION
The Channels will be allocated in the following manner during the Agreement:
<TABLE>
<CAPTION>
- ------------ --------------------- -------------------- -------------------------------------
Netscape Channels * Excite Co-Branded Channels
- ------------ --------------------- -------------------- -------------------------------------
<S> <C> <C> <C>
Year 1 & 2 Computing * Education (inc. College)
Small Business Games
Business News Lifestyle ("good-life")
Travel Autos
Finance Health
Careers Arts & Leisure
Kids & Family Real Estate
Entertainment Auctions
Sports Shopping
Local Classified (excluding careers/jobs)
Communications
News
- ------------ --------------------- -------------------- -------------------------------------
</TABLE>
Both parties agree to use their best efforts to have the following Netscape
Channels and Excite Co-Branded Channels up within 30 days after the Effective
Date. The Launch Date shall occur on the first to occur of: (i) June 1, 1998,
or, (ii) the date when the following Channels are up:
Netscape Channels: *.
Excite Co-Branded Channels: * as such additional Co-Branded Channel shall be
mutually agreed.
The remaining Co-Branded Channels will be implemented within 6 weeks of the
initial Launch Date. Excite shall use reasonable commercial efforts to launch
the Interim Channels within 6 weeks of the Launch Date. Excite shall commit to
providing at least * to help achieve a timely launch and maintenance of the
Service.
The Netscape Branded Search Service shall also be launched on June 1, 1998.
In those cases where Channels to be provided by Netscape * from Netscape as of
the initial Launch Date, * to provide such channels as Interim Channels for
Netscape for such interim period, provided Excite has such Channels * Such
Interim Channels shall be treated as Co-Branded Channels during the period of
time they are Interim Channels. Before Excite launches any Interim Channel, the
parties shall mutually agree on a minimum life for such Interim Channel which
shall be hosted and managed by Excite. * Excite may enter into * for * within
the * provided such contracts * for such Interim Channel ("*") as agreed upon by
the parties. If Excite wishes to enter into a contract for an E-Commerce Listing
with a duration longer than the *, Excite shall notify Netscape in writing.
Netscape shall have three business days to respond to Excite's proposed
E-Commerce Listing. If Netscape does not notify Excite within three business
days that Netscape does not want Excite to sell such E-Commerce Listing, Excite
may sell such E-Commerce Listing. Excite may sell banner advertisement programs
for up to three months longer than the Minimum Life without Netscape's prior
written approval. If Excite would like to sell banner advertisement programs
beyond such period, Excite shall receive Netscape's prior written approval. *
notify Excite * that Netscape does not want Excite to sell such banner
advertising program, Excite may sell
29
<PAGE> 33
such banner ads. Excite shall provide account management throughout the duration
of any such contracts and the parties will coordinate the transitioning of the
account back to Netscape.
After Netscape has taken back any Interim Channels for which Excite has entered
into agreements for E-Commerce Listings, the parties will continue to * on the
same basis as if those Channels were Co-Branded Channels for the duration of the
term of the * entered into by Excite.
Netscape reserves the right to * Netscape Channels.
30
<PAGE> 34
EXHIBIT H
PRO FORMA LAYOUT OF A CO-BRANDED CHANNEL, A SEARCH RESULTS PAGE,
A DIRECTORY SERVICE PAGE, AND THE NETSCAPE BRANDED SEARCH SERVICE "SAMPLER"
[NOT COMPLETED]
31
<PAGE> 35
EXHIBIT I
WARRANT PURCHASE AGREEMENT
32
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM
EXCITE, INC.'S QUARTERLY REPORT ON FORM 10-Q FOR THE QUARTER ENDED
JUNE 30, 1998 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS. IN JUNE 1998, THE BOARD OF DIRECTORS DECLARED A
TWO-FOR-ONE STOCK SPLIT WHICH WAS IN THE FORM OF A 100% STOCK DIVIDEND.
IN ACCORDANCE WITH REGULATION S-K ITEM 601, PRIOR PERIOD FINANCIAL
DATA SCHEDULES HAVE NOT BEEN RESTATED FOR THE STOCK SPLIT.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> JUN-30-1998
<CASH> 20,168
<SECURITIES> 16,091
<RECEIVABLES> 28,570
<ALLOWANCES> (1,480)
<INVENTORY> 0
<CURRENT-ASSETS> 82,938
<PP&E> 33,927
<DEPRECIATION> (13,722)
<TOTAL-ASSETS> 125,574
<CURRENT-LIABILITIES> 41,895
<BONDS> 0
0
813
<COMMON> 256,595
<OTHER-SE> (186,843)
<TOTAL-LIABILITY-AND-EQUITY> 125,574
<SALES> 0
<TOTAL-REVENUES> 33,005
<CGS> 0
<TOTAL-COSTS> 6,459
<OTHER-EXPENSES> 105,515
<LOSS-PROVISION> 439
<INTEREST-EXPENSE> 1,033
<INCOME-PRETAX> (80,169)
<INCOME-TAX> 0
<INCOME-CONTINUING> (80,169)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (80,169)
<EPS-PRIMARY> (1.72)
<EPS-DILUTED> (1.72)
</TABLE>
