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As filed with the Securities and Exchange Commission on February __, 1998
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EXCITE, INC.
(Exact name of registrant as specified in its charter)
CALIFORNIA 77-0378215
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
555 BROADWAY
REDWOOD CITY, CALIFORNIA 94063
(Address of principal executive offices)
OPTIONS TO PURCHASE COMMON STOCK OF MATCHLOGIC, INC. ASSUMED BY
REGISTRATION PURSUANT TO AN AGREEMENT AND PLAN OF
REORGANIZATION DATED AS OF JANUARY 15, 1998.
(Full title of the plan)
ROBERT C. HOOD
EXECUTIVE VICE PRESIDENT, CHIEF FINANCIAL OFFICER
AND CHIEF ADMINISTRATIVE OFFICER
555 BROADWAY
REDWOOD CITY, CALIFORNIA 94063
(650) 568-6000
(Name, address and telephone number, including area code, of agent for service)
COPIES TO:
Mark C. Stevens, Esq.
Jeffrey R. Vetter, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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PROPOSED
AMOUNT PROPOSED MAXIMUM MAXIMUM
TITLE OF SECURITIES TO BE TO BE OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, no par value .. 440,835(1) $1.69(2) $745,011.15(2) $219.78
======================================================================================================
</TABLE>
(1) Shares subject to assumed Matchlogic, Inc. stock options as of February 3,
1998.
(2) Estimated pursuant to Rule 457(h)(l) under the Securities Act of 1933, as
amended (the "Securities Act"), solely for the purpose of calculating the
registration fee and based upon the weighted average exercise price of the
assumed options.
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PART I
ITEM 1. PLAN INFORMATION.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.(1)
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(1) Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended (the "Securities
Act") and the Note to Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's latest annual report on Form 10-K filed pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), which contains audited financial
statements for the Registrant's latest fiscal year.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the
annual report referred to in (a) above.
(c) The description of the Registrant's Common Stock contained in the
Registrant's registration statement on Form 8-A filed with the
Commission under Section 12 of the Exchange Act, including any
amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities registered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed incorporated by reference herein and to be a part hereof from the date
of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the issuance of the shares of Common Stock
offered hereby upon the exercise of assumed stock options will be passed upon
for the Company by Fenwick & West LLP, Palo Alto, California. Certain members of
the firm of Fenwick & West LLP own an aggregate of 12,672 shares of the
Company's Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Articles of Incorporation include a provision
that eliminates the personal liability of its directors to the Registrant and
its shareholders for monetary damages for breach of the directors' fiduciary
duties to the fullest extent permitted by law. This limitation has no effect on
a director's liability (i) for acts or omissions that involve intentional
misconduct or a knowing and culpable violation of law, (ii) for acts or
omissions that a director believes to be contrary to the best interests of the
Registrant or its shareholders or that involve the absence of good faith on the
part of the director, (iii) for any transaction from which a director derived an
improper personal benefit, (iv) for acts or omissions that show a reckless
disregard for the director's duty to the Registrant or its shareholders in
circumstances in which the director was aware, or should have been aware, in the
ordinary course of performing a director's duties, of a risk of a serious injury
to the Registrant or its shareholders, (v) for acts or omissions that constitute
an unexcused pattern of inattention that amounts to an abdication of the
director's duty to the Registrant or its shareholders, (vi) under Section 310 of
the California Corporations Code (the "California Code") (concerning contracts
or transactions between the Registrant and a director) or (vii) under Section
316 of the California Code (concerning directors' liability for improper
dividends, loans and guarantees). The provision does not extend to acts or
omissions of a director in his capacity as an officer. Further, the provision
will not affect the availability of injunctions and other equitable remedies
available to the Registrant's shareholders for any violation of a director's
fiduciary duty to the Registrant or its shareholders.
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The Registrant's Articles of Incorporation also include an
authorization for the Registrant to indemnify its agents (as defined in Section
317 of the California Code), through bylaw provisions, by agreement or
otherwise, to the fullest extent permitted by law. Pursuant to this latter
provision, the Registrant's Bylaws provide for indemnification of the
Registrant's directors and officers. In addition, the Registrant, at its
discretion, may provide indemnification to persons whom the Registrant is not
obligated to indemnify. The Bylaws also allow the Registrant to enter into
indemnity agreements with individual directors, officers, employees and other
agents. These indemnity agreements have been entered into with all directors and
provide the maximum indemnification permitted by law. These agreements, together
with the Registrant's Bylaws and Articles of Incorporation, may require the
Registrant, among other things, to indemnify such directors against certain
liabilities that may arise by reason of their status or service as directors
(other than liabilities resulting from willful misconduct of a culpable nature),
to advance expenses to them as they are incurred, provided that they undertake
to repay the amount advanced if it is ultimately determined by a court that they
are not entitled to indemnification, and to obtain directors' and officers'
insurance if available on reasonable terms.
Section 317 of the California Code and the Registrant's Bylaws
make provision for the indemnification of officers, directors and other
corporate agents in terms sufficiently broad to indemnify such persons, under
certain circumstances for liabilities (including reimbursement of expenses
incurred) arising under the Securities Act.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable.
The Registrant maintains directors and officers liability
insurance with a per claim and annual aggregate coverage limit of $5,000,000.
ITEM 8. EXHIBITS
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<CAPTION>
Exhibit No. Description
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<S> <C>
4.01 Registrant's Articles of Incorporation, as amended
incorporated herein by reference to Registrant's
Registration Statement on Form S-8, File No. 333-07625,
filed with the Commission on July 3, 1996).
4.02 Registrant's Bylaws (incorporated herein by reference to
Registrant's Registration Statement on Form SB-2, File No.
333-2328-LA, initially filed with the Commission on
March 11, 1996, and as subsequently amended through
April 3, 1996 (the "Form SB-2")).
4.03 Form of Assumed Stock Option Grant Agreement, together
with Matchlogic, Inc. 1997 Equity Compensation Plan and
Related Agreements.
4.04 Form of Specimen Stock Certificate for Registrant's Common
Stock (incorporated herein by reference to the Form SB-2).
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of Ernst & Young LLP, independent auditors.
23.03 Consent of Price Waterhouse LLP, independent accountants.
24.01 Power of Attorney (see page II-4).
</TABLE>
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ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) above do not apply
if the Registration Statement is on Form S-3 or Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered that remain unsold at the termination of
the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions discussed in Item 6 hereof, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered hereby, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Redwood City, State of California, on the __ day of
February, 1998.
EXCITE, INC.
By: /s/ Robert C. Hood
_____________________________________
Robert C. Hood,
Executive Vice President,
Chief Administrative Officer
and Chief Financial Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose
signature appears below constitutes and appoints George Bell and Robert C. Hood,
and each of them, his true and lawful attorneys-in-fact and agents with full
power of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement on Form S-8, and to file the same with all
exhibits thereto and all documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or his or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
PRINCIPAL EXECUTIVE OFFICER
AND DIRECTOR:
/s/ George Bell
__________________________________ President, Chief Executive February 4, 1998
George Bell Officer and a Director
PRINCIPAL FINANCIAL AND
ACCOUNTING OFFICER
/s/ Robert C. Hood
__________________________________ Executive Vice President, February 4, 1998
Robert C. Hood Chief Administrative Officer and
Chief Executive Officer
ADDITIONAL DIRECTORS:
/s/ Joseph R. Kraus, IV
__________________________________ Director February 4, 1998
Joseph R. Kraus, IV
/s/ Vinod Khosla
__________________________________ Director February 4, 1998
Vinod Khosla
/s/ Geoffrey Y. Yang
__________________________________ Director February 4, 1998
Geoffrey Y. Yang
/s/ Donn M. Davis
__________________________________ Director February 4, 1998
Donn M. Davis
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description
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<S> <C>
4.01 Registrant's Articles of Incorporation, as amended
incorporated herein by reference to Registrant's
Registration Statement on Form S-8, File No. 333-07625,
filed with the Commission on July 3, 1996).
4.02 Registrant's Bylaws (incorporated herein by reference to
Registrant's Registration Statement on Form SB-2, File No.
333-2328-LA, initially filed with the Commission on
March 11, 1996, and as subsequently amended through
April 3, 1996 (the "Form SB-2")).
4.03 Form of Assumed Stock Option Grant Agreement, together
with Matchlogic, Inc. 1996 Stock Option Plan and Related
Agreements.
4.04 Form of Specimen Stock Certificate for Registrant's Common
Stock (incorporated herein by reference to the Form SB-2).
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of Ernst & Young LLP, independent auditors.
23.03 Consent of Price Waterhouse LLP, independent accountants.
24.01 Power of Attorney (see page II-4).
</TABLE>
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EXHIBIT 4.03
MATCHLOGIC, INC.
1997 EQUITY COMPENSATION PLAN
SECTION 1. PURPOSE; DEFINITIONS
The purpose of the MatchLogic, Inc. 1997 Equity Compensation Plan (the
"Plan") is to enable key employees, officers, directors, and Eligible
Independent Contractors (as hereinafter defined) of MatchLogic, Inc. (the
"Company") to (i) own shares of stock in the Company, (ii) participate in the
stockholder value which has been created, (iii) have a mutuality of interest
with other stockholders and (iv) enable the Company to attract, retain and
motivate key employees, officers, non-employee directors and independent
contractors of particular merit.
For the purposes of the Plan, the following terms shall be defined as
set forth below:
(a) "Board" means the Board of Directors of the Company.
(b) "Code" means the Internal Revenue Code of 1986, as amended
from time to time, and any successor thereto.
(c) "Committee" means the Committee designated by the Board to
administer the Plan.
(d) "Company" means MatchLogic, Inc., a Delaware domestic
corporation, its subsidiaries or any successor organization.
(e) "Disability" means permanent and total disability within the
meaning of Section 22(e)(3) of the Code.
(f) "Eligible Independent Contractor" means an independent
contractor hired by the Company to provide consulting services on a
regular basis for the Company.
(g) "Fair Market Value" means the fair market value of the Stock
as determined by the Committee in good faith based on the best available
facts and circumstances at the time.
(h) "Incentive Stock Option" means any Stock Option intended to
be and designated as an "Incentive Stock Option" within the meaning of
Section 422 of the Code.
(i) "Non-Qualified Stock Option" means any Stock Option that is
not an Incentive Stock Option.
(j) "Participant" means a key employee, officer, director or
Eligible Independent Contractor to whom an award is granted pursuant to
the Plan.
(k) "Plan" means the MatchLogic, Inc. 1997 Equity Compensation
Plan, as
<PAGE> 2
hereinafter amended from time to time.
(l) "Restricted Stock" means an award of shares of Stock that is
subject to restrictions pursuant to Section 7 below.
(m) "Securities Act" means the Securities Act of 1933, as
amended.
(n) "Stock" means the Common Stock of the Company, par value $.01
per share.
(o) "Stock Appreciation Right" means the right, pursuant to an
award granted under Section 6 below, to surrender to the Company all (or
a portion) of a Stock Option in exchange for an amount in cash and/or
shares of Stock equal in value to the excess of (i) the Fair Market
Value, as of the date such right is exercised and the related Stock
Option (or such portion thereof) is surrendered, of the shares of Stock
covered by such Stock Option (or such portion thereof), over (ii) the
aggregate exercise price of such Stock Option (or such portion thereof).
(p) "Stock Option" or "Option" means any option to purchase
shares of Stock (including Restricted Stock, if the Committee so
determines) granted pursuant to Section 5 below.
SECTION 2. ADMINISTRATION
The Plan shall be administered by a Committee of Directors of the
Company designated by the Board, or, if the Board declines to make such a
designation, by the Board itself, in which event references herein to the
Committee shall mean the Board.
The Committee shall have the authority to grant pursuant to the terms of
the Plan: (i) Stock Options, Stock Appreciation Rights and/or Restricted Stock
to key employees and officers; and (ii) Stock Options and/or Stock Appreciation
Rights to directors and Eligible Independent Contractors. In particular, the
Committee shall, subject to the limitations and terms of the Plan, have the
authority:
(i) to select the officers and other key employees of the Company
to whom Stock Options, Stock Appreciation Rights and/or Restricted Stock
may from time to time be granted hereunder, and the directors and
Eligible Independent Contractors to whom Stock Options and Stock
Appreciation Rights may from time to time be granted hereunder;
(ii) to determine whether and to what extent Incentive Stock
Options, Stock Appreciation Rights and/or Restricted Stock, or any
combination thereof, are to be granted hereunder;
(iii) to determine the number of shares to be covered by each
such award granted hereunder;
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(iv) to determine the terms and conditions, not inconsistent with
the terms of the Plan, of any award granted hereunder, including, but
not limited to, the option or exercise price and any restriction or
limitations, based upon such factors as the Committee shall determine,
in its sole discretion;
(v) to determine whether and under what circumstances a Stock
Option may be exercised and settled in cash or Stock or without a
payment of cash;
(vi) to determine whether, to what extent and under what
circumstances Stock and other amounts payable with respect to an award
under this Plan shall be deferred either automatically or at the
election of the Participant; and
(vii) to amend the terms of any outstanding award (with the
consent of the Participant) to reflect terms not otherwise inconsistent
with the Plan, including amendments concerning vesting acceleration or
forfeiture waiver regarding any award or the extension of a
Participant's right with respect to awards granted under the Plan, as a
result of termination of employment or service or otherwise, based on
such factors as the Committee shall determine, in its sole discretion.
The Committee shall have the authority to adopt, alter and repeal such
administrative rules, guidelines and practices governing the Plan as it shall,
from time to time deem advisable; to interpret the terms and provisions of the
Plan and any award issued under the Plan (and any agreements relating thereto);
and to otherwise supervise the administration of the Plan.
No member of the Board or the Committee shall be liable for any action
or determination made in good faith with respect to the Plan or any Stock
Option, Stock Appreciation Right or Restricted Stock award granted under it.
Nothing herein shall be deemed to expand the personal liability of a member of
the Board or Committee beyond that which may arise under any applicable
standards set forth in the Company's by-laws and Delaware law, nor shall
anything herein limit any rights to indemnification or advancement of expenses
to which any member of the Board or the Committee may be entitled under any
by-law, agreement, vote of the stockholders or directors, or otherwise.
All decisions made by the Committee pursuant to the provisions of the
Plan shall be final and binding on all persons, including the Company and the
Participants.
SECTION 3. STOCK SUBJECT TO THE PLAN
(a) The aggregate number of shares of Stock that may be issued or
transferred under the Plan is 1,939,140, subject to adjustment pursuant to
Section 3(b) below. Such shares may be authorized but unissued shares or
reacquired shares. In the event the number of shares of Stock issued under the
Plan and the number of shares of Stock subject to outstanding awards equals the
maximum number of shares of Stock authorized under the Plan, no further awards
shall be made unless the Plan is amended by the Board or additional shares of
Stock become available for further awards under the Plan. If and to the extent
that Options or Stock Appreciation Rights granted under the Plan terminate,
expire or are canceled without having
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been exercised, or if any shares of Restricted Stock are forfeited, such shares
shall again be available for subsequent awards under the Plan.
(b) If any change is made to the Stock (whether by reason of merger,
consolidation, reorganization, recapitalization, stock dividend, stock split,
combination of shares, or exchange of shares or any other change in capital
structure made without receipt of consideration), then unless such event or
change results in the termination of all outstanding awards under the Plan, the
Board or the Committee shall preserve the value of the outstanding awards by
adjusting the maximum number and class of shares issuable under the Plan to
reflect the effect of such event or change in the Company's capital structure,
and by making appropriate adjustments to the number and class of shares subject
to an outstanding award and/or the option price of each outstanding Option and
Stock Appreciation Right, except that any fractional shares resulting from such
adjustments shall be eliminated by rounding any portion of a share equal to .500
or greater up, and any portion of a share equal to less than .500 down, in each
case to the nearest whole number.
SECTION 4. ELIGIBILITY; PARTICIPANT LIMITATIONS CONCERNING ISSUANCES;
STOCK SUBJECT TO AWARDS
Officers, key employees, and Eligible Independent Contractors who are
responsible for or contribute to the management, growth and/or profitability of
the business of the Company are eligible to be granted awards under the Plan.
Directors, including members of the Committee, shall be eligible for grants
under the Plan.
SECTION 5. STOCK OPTIONS
Stock Options may be granted alone, in addition to, or in tandem with
other awards granted under the Plan. Any Stock Option granted under the Plan
shall be in such form as the Committee may from time to time approve. Stock
Options granted under the Plan may be of two types: (i) Incentive Stock Options
and (ii) Non-Qualified Stock Options.
The Committee shall have the authority to grant Incentive Stock Options,
Non-Qualified Stock Options or both types of Stock Options (in each case with or
without Stock Appreciation Rights). To the extent that any Stock Option does not
qualify as an Incentive Stock Option, it shall constitute a Non-Qualified Stock
Option.
Anything in the Plan to the contrary notwithstanding, no term of this
Plan relating to Incentive Stock Options shall be interpreted, amended or
altered, nor shall any discretion or authority granted under the Plan be so
exercised, so as to disqualify the Plan under Section 422 of the Code, or,
without the consent of the optionee(s) affected, to disqualify any Incentive
Stock Option under Section 422.
Options granted under the Plan shall be subject to the following terms
and conditions and may contain such additional terms and conditions, not
inconsistent with the terms of the Plan, as the Committee shall deem
appropriate:
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(a) OPTION PRICE. The option price per share of Stock purchasable under
a Stock Option shall be determined by the Committee at the time of grant,
provided, however, that the option price per share for any Incentive Stock
Option shall be not less than 100% of the Fair Market Value of the Stock at the
time of grant.
Any Incentive Stock Option granted to any optionee who, at the time the
Option is granted, owns more than 10% of the voting power of all classes of
stock of the Company or of a Parent or Subsidiary corporation (within the
meaning of Section 424 of the Code), shall have an exercise price no less than
110% of Fair Market Value per share on date of the grant (as defined in Sections
424 (e) and (f) of the Code, respectively.
(b) OPTION TERM. The term of each Stock Option shall be fixed by the
Committee, but no Stock Option shall be exercisable more than ten years after
the date the Stock Option is granted. However, any Incentive Stock Option
granted to any optionee who, at the time the Option is granted, owns more than
10% of the voting power of all classes of stock of the Company or of a "parent"
or "subsidiary" corporation (as such terms are defined in Section 424 of the
Code) may not have a term of more than five years. No Option may be exercised by
any person after expiration of the term of the Option).
(c) EXERCISABILITY. Stock Options shall be exercisable at such time or
times and subject to such terms and conditions as shall be determined by the
Committee at or after grant. If the Committee provides, in its discretion, that
any Stock Option is exercisable only in installments, the Committee may waive
such installment exercise provisions at any time at or after grant in whole or
in part, based on such factors as the Committee shall determine, in its sole
discretion.
(d) METHOD OF EXERCISE. Subject to whatever installment exercise
provisions apply under Section 5(c), Stock Options may be exercised in whole or
in part at any time and from time to time during the Option period, by giving
written notice of exercise to the Company specifying the number of shares to be
purchased. Such notice shall be accompanied by payment in full of the purchase
price, either by cash, check, or such other instrument as the Committee may
accept. As determined by the Committee, in its sole discretion, at or after
grant, payment in full or in part may also be made in the form of unrestricted
Stock already owned by the optionee (based upon the Fair Market Value of a share
of Stock on the business date preceding tender if received prior to the close of
the stock market and at the Fair Market Value on the date of tender if received
after the stock market closes); provided, however, that, (i) in the case of an
Incentive Stock Option, the right to make a payment in the form of unrestricted
Stock already owned by the optionee may be authorized only at the time the
Option is granted and (ii) the Company may require that the Stock has been owned
by the Participant for a minimum period of time specified by the Committee. In
addition, if such unrestricted Stock was acquired through exercise of an
Incentive Stock Option, such Stock shall have been held by the optionee for a
period of not less than the holding period described in Section 422(a)(1) of the
Code on the date of exercise, or if such Stock was acquired through exercise of
a Non-Qualified Stock Option or of an option under a similar plan of the
Company, such Stock shall have been held by the optionee for a period of more
than one year on the date of exercise.
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If specified by the Committee in the agreement governing a Stock Option
at the time of grant, the Committee may, in its sole discretion, upon receipt of
such optionee's written notice to exercise, elect to cash out all or part of the
portion of the Stock Option to be exercised by paying the optionee an amount, in
cash or Stock, equal to the excess of the Fair Market Value of the Stock over
the option price on the effective date of such cash-out.
No shares of Stock shall be issued until full payment therefor has been
made. An optionee shall not have any right to dividends or other rights of a
stockholder with respect to shares subject to the Option until such time as
Stock is issued in the name of the optionee following exercise of the Option in
accordance with the Plan.
(e) STOCK OPTION AGREEMENT. Each Option granted under this Plan shall be
evidenced by an appropriate Stock Option agreement, which agreement shall
expressly specify whether such Option is an Incentive Stock Option or a
Non-Qualified Stock Option and shall be executed by the Company and the
optionee. The agreement shall contain such terms and provisions, not
inconsistent with the Plan, as shall be deterrnined by the Committee. Such terms
and provisions may vary between optionees or as to the same optionee to whom
more than one Option may be granted.
(f) REPLACEMENT OPTIONS. The Committee may, in its sole discretion and
at the time of the original option grant, authorize the Participant to
automatically receive replacement Options pursuant to this part of the Plan. Any
such replacement option shall be granted upon such terms and subject to such
conditions and limitations as the Committee may deem appropriate. Any
replacement option shall cover a number of shares determined by the Committee,
but in no event equal to more than the number of shares covered by the original
option exercised. The per share exercise price of any replacement option shall
equal the then current Fair Market Value of a share of Stock, and shall have a
term as determined by the Committee at the time of grant of the original Option.
The Committee shall have the right, and may reserve the right in any
Option grant, in its sole discretion and at any time, to discontinue the
automatic grant of replacement options if it determines the continuance of such
grants to no longer be in the best interest of the Company.
(g) NON-TRANSFERABILITY OF OPTIONS. No Stock Option shall be
transferable by the optionee other than by will, by the laws of descent and
distribution, or pursuant to a qualified domestic relations order, and all Stock
Options shall be exercisable, during the optionee's lifetime, only by the
optionee.
(h) TERMINATION OF EMPLOYMENT BY REASON OF DEATH. Unless otherwise
determined by the Committee at or after grant, if any optionee's employment by
the Company terminates by reason of death, any Stock Option held by such
optionee may thereafter be exercised, to the extent then exercisable or on such
accelerated basis as the Committee may determine at or after grant, by the legal
representative of the estate or by the legatee of the optionee under the will of
the optionee, for a period of one year (or such shorter period as the
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<PAGE> 7
Committee may specify at grant) from the date of such death or until the
expiration of the stated term of such Stock Option, whichever period is shorter.
(i) TERMINATION OF EMPLOYMENT BY REASON OF DISABILITY. Unless otherwise
determined by the Committee at or after grant, if an optionee's employment by
the Company terminates by reason of Disability, any Stock Option held by such
optionee may thereafter be exercised by the optionee, to the extent it was
exercisable at the time of termination, or on such accelerated basis as the
Committee may determine at or after grant, for a period of one year (or such
shorter period as the Committee may specify at grant) from the date of such
termination of employment or until the expiration of the stated term of such
Stock Option, whichever period is shorter; provided, however, that, if the
optionee dies within such one-year period (or such shorter period as the
Committee shall specify at grant), any unexercised Stock Option held by such
optionee shall thereafter be exercisable to the extent it was exercisable at the
time of death for a period of twelve months from the date of such death or until
the expiration of the stated term of such Stock Option, whichever period is
shorter. In the event of termination of employment by reason of Disability, if
an incentive Stock Option is exercised after the expiration of the exercise
periods that apply for purposes of Section 422 of the Code, such Stock Option
will thereafter be treated as a Non-Qualified Stock Option.
(j) OTHER TERMINATION OF EMPLOYMENT. Unless otherwise determined by the
Committee at or after grant, in the event of termination of employment
(voluntary or involuntary) for any reason other than death or Disability, any
Stock Option held by such optionee may thereafter be exercised by the optionee,
to the extent it was exercisable at the time of such termination or on such
accelerated basis as the Committee may determine at or after grant, for a period
of three months (or such shorter period as Committee may specify at grant) from
the date of such termination of employment or the expiration of the stated term
of such Stock Option, whichever period is shorter; provided, however, that, if
the optionee dies within such three-month period, any unexercised Stock Option
held by such optionee shall thereafter be exercisable, to the extent to which it
was exercisable at the time of death, for a period of twelve months from the
date of such death or until the expiration of the stated term of such Stock
Option, whichever period is shorter.
(k) BREACH OF NON-COMPETITION, NON-SOLICITATION OR NON DISCLOSURE
AGREEMENT. In the event that the Board determines that the optionee has breached
any non-compete, non-solicitation or non-disclosure agreement or obligation,
whether written or oral or imposed by law or by contract, with the Company, all
Stock Options held by such optionee shall terminate effective as of the date on
which optionee entered into such activity, unless terminated sooner by operation
of another term or condition of the option agreement or the Plan. The Board
shall have the authority to release an optionee from his obligations pursuant to
this paragraph if it determines such action to be in the best interests of the
Company.
(l) INCENTIVE STOCK; OPTION LIMITATION. The aggregate Fair Market Value
(determined as of the time of grant) of the Stock with respect to which
Incentive Stock Options are exercisable for the first time by the optionee
during any calendar year under the Plan and/or any other stock option plan of
the Company shall not exceed $100,000.
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<PAGE> 8
(m) WITHHOLDING AND USE OF SHARES TO SATISFY TAX OBLIGATIONS. The
obligation of the Company to deliver Stock upon the exercise of any Option shall
be subject to applicable federal, state and local tax withholding requirements.
If the exercise of any Option is subject to the withholding requirements
of applicable federal tax laws, the Committee, in its discretion (and subject to
such withholding rules ("Withholding Rules") as shall be adopted by the
Committee), may permit the optionee to satisfy the federal withholding tax, in
whole or in part, by electing to have the Company withhold (or by delivering to
the Company) shares of Stock, which Stock shall be valued, for this purpose, at
their Fair Market Value on the date the amount of tax required to be withheld is
determined (the "Determination Date"). Such election must be made in compliance
with and subject to the Withholding Rules, and the Committee may not withhold
shares of Stock in excess of the number necessary to satisfy the minimum federal
income tax withholding requirements. In the event Stock acquired under the
exercise of an Incentive Stock Option is used to satisfy such withholding
requirement, such Stock must have been held by the optionee for a period of not
less than the holding period described in Section 422(a)(1) of the Code on the
Determination Date. In the event Stock acquired through the exercise of a
Non-Qualified Stock Option or of an option under a similar plan is delivered by
the optionee to the Company to satisfy such withholding requirement, such Stock
must have been held by the optionee for a period of more than one year on the
Determination Date.
(n) ISSUANCE OF SHARES AND COMPLIANCE WITH SECURITIES ACTS. Within a
reasonable time after exercise of an Option, the Company shall cause to be
delivered to the optionee a certificate for the Stock purchased pursuant to the
exercise of the Option. At the time of any exercise of any Option, the Company
may, if it shall deem it necessary and desirable for any reason connected with
any law or regulation of any governmental authority relative to the regulation
of securities, require the optionee to represent in writing to the Company that
it is his or her then intention to acquire the Stock for investment and not with
a view to distribution thereof and that such optionee will not dispose of such
Stock in any manner that would involve a violation of applicable securities
laws. In such event, no Stock shall be issued to such holder unless and until
the Company is satisfied with such representation. Certificates for shares of
Stock issued pursuant to the exercise of Options may bear an appropriate
securities law legend.
SECTION 6. STOCK APPRECIATION RIGHTS
(a) GRANT AND EXERCISE. Stock Appreciation Rights may be granted in
conjunction with all or part of any Stock Option granted under the Plan. In the
case of a Non-Qualified Stock Option, such rights may be granted either at or
after the time of the grant of such Stock Option. In the case of an Incentive
Stock Option, such rights may be granted only at the time of the grant of such
Stock Option. The exercise price of each Stock Appreciation Right shall be equal
to (i) the exercise price or option price or the related Stock Option or (ii)
the Fair Market Value of a share of Stock as of the date of grant of such Stock
Appreciation Right, but only in such circumstances where the Stock Appreciation
Right is granted subsequent to the date of grant of the related Stock Option and
an exercise price established in accordance with clause (i)
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<PAGE> 9
above would result in the disallowance of the Company's expense deduction
pursuant to Section 162(m) of the Code.
A Stock Appreciation Right or applicable portion thereof granted with
respect to a given Stock Option shall terminate and no longer be exercisable
upon the termination or exercise of the related Stock Option, except that,
unless otherwise determined by the Committee, in its sole discretion, at the
time of grant, a Stock Appreciation Right granted with respect to less than the
full number of shares covered by a related Stock Option shall not be reduced
until the number of shares covered by an exercise or termination of the related
Stock Option exceeds the number of shares not covered by the Stock Appreciation
Right.
A Stock Appreciation Right may be exercised by a Participant, in
accordance with Section 6(b), by surrendering the applicable portion of the
related Stock Option. Upon such exercise and surrender, the Participant shall be
entitled to receive an amount determined in the manner prescribed in Section
6(b). Stock Options which have been so surrendered, in whole or in part, shall
no longer be exercisable to the extent the related Stock Appreciation Rights
have been exercised.
(b) TERMS AND CONDITIONS. Stock Appreciation Rights shall be subject to
such terms and conditions, not inconsistent with the provisions of the Plan, as
shall be determined from time to time by the Committee, including the following:
(i) Stock Appreciation Rights shall be exercisable only at such
time or times and to the extent that the Stock Options to which they
relate, if any, shall be exercisable in accordance with the provisions
of Section 5 and this Section 6 of the Plan;
(ii) upon the exercise of a Stock Appreciation Right, a
Participant shall be entitled to receive up to, but not more than, an
amount in cash and/or shares of stock equal in value to the excess of
the Fair Market Value of one share of Stock (as of the date the Stock
Appreciation Right is exercised and the related Stock Option is
surrendered) over the exercise price of the Stock Appreciation Right,
multiplied by the number of shares of Stock in respect of which the
Stock Appreciation Right shall have been exercised, with the Committee
having the right to determine the form of payment;
(iii) Stock Appreciation Rights shall be transferable only when
and to the extent that the underlying Stock Option would be transferable
under Section 5(g) of the Plan; and
(iv) a Stock Appreciation Right granted in connection with an
Incentive Stock Option may be exercised only if and when the market
price of the Stock subject to the Incentive Stock Option exceeds the
exercise price of such Stock Option.
SECTION 7. RESTRICTED STOCK
(a) ADMINISTRATION. Shares of Restricted Stock may be issued either
alone or in addition to other awards granted under the Plan. The Committee shall
determine the officers and
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<PAGE> 10
key employees of the Company to whom, and the time or times at which, grants of
Restricted Stock will be made, the number of shares to be awarded, the price (if
any) to be paid by the recipient of Restricted Stock (subject to Section 70b)),
the time or times within which such awards may be subject to forfeiture, and all
other conditions of the awards. The Committee may condition the grant of
Restricted Stock upon the attainment of specified performance goals or such
other factors as the Committee may determine, in its sole discretion. The
provisions of Restricted Stock awards need not be the same with respect to each
recipient.
(b) AWARDS AND CERTIFICATES. The prospective recipient of a Restricted
Stock award shall not have any rights with respect to such award unless and
until such recipient has executed an agreement evidencing the award and has
delivered a fully executed copy thereof to the Company, and has otherwise
complied with the applicable terms and conditions of such award.
(i) The purchase price for shares of Restricted Stock shall be
established by the Committee and may be zero.
(ii) Awards of Restricted Stock may be accepted within a period
of 60 days (or such shorter period as the Committee may specify at
grant) after the grant date, by executing a Restricted Stock award
agreement and paying whatever price (if any) is required under Section
7(b)(i).
(iii) Each Participant receiving a Restricted Stock award shall
be issued a certificate in respect of such shares of Restricted Stock.
Such certificate shall be registered in the name of such Participant,
and shall bear an appropriate legend referring to the terms, conditions,
and restrictions applicable to such award, substantially in the
following form:
"The transferability of this certificate and the shares of stock
represented hereby are subject to the terms and conditions
(including forfeiture) of the MatchLogic, Inc. 1997 Equity
Compensation Plan and an Agreement entered into between the
registered owner and MatchLogic, Inc. Copies of such Plan and
Agreement are on file at the offices of the Company."
(iv) The Committee shall require that the certificates evidencing
such Restricted Stock be held in custody by the Company until the
restrictions thereon shall have lapsed, and that, as a condition of any
Restricted Stock award, the Participant shall have delivered a stock
power, endorsed in blank, relating to the Stock covered by such award.
(c) RESTRICTIONS AND CONDITIONS. The shares of Restricted Stock awarded
pursuant to this Section 7 shall be subject to the following restrictions and
conditions:
(i) Subject to the provisions of this Plan and the Restricted
Stock award agreement, during a period set by the Committee commencing
with the date of such award (the "Restriction Period"), the Participant
shall not be permitted to sell, transfer, pledge, assign or otherwise
encumber shares of Restricted Stock awarded under the
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Plan. The Committee, at its sole discretion, may provide for the lapse
of such restrictions in installments and may accelerate or waive such
restrictions in whole or in part, based on service, performance and/or
such other factors or criteria as the Committee may determine, in its
sole discretion.
(ii) Except as provided in this paragraph (ii) and Section
7(c)(i), the Participant shall have, with respect to the shares of
Restricted Stock, all of the rights of a stockholder of the Company,
including the right to vote the shares and the right to receive any cash
dividends. The Committee, in its sole discretion, as determined at the
time of award, may permit or require the payment of cash dividends to be
deferred and, if the Committee so determines, reinvested in additional
Restricted Stock to the extent shares are available under Section 3.
(iii) Subject to the applicable provisions of the Restricted
Stock award agreement and this Section 7, upon termination of a
Participant's employment with the Company for any reason during the
Restriction Period, all shares still subject to restriction shall be
forfeited by the Participant, subject to any payments for such shares as
may be provided in the Restricted Stock award agreement.
(iv) The Committee may, in its sole discretion, waive in whole or
in part any or all remaining restrictions with respect to such
Participant's shares of Restricted Stock, based on such factors as the
Committee may deem appropriate.
(v) If and when the Restriction Period expires without a prior
forfeiture of the Restricted Stock subject to such Restriction Period,
the certificates for such shares shall be delivered promptly to the
Participant.
SECTION 8. RESTRICTIONS ON TRANSFER
(a) Unless otherwise determined by the Committee at or after grant, the
Company shall have the right of first refusal to repurchase any shares offered
for sale by the Grantee, his executor, administrator, or beneficiaries, which
shares were issued to the Grantee pursuant to one or more Options or Restricted
Stock grants awarded to the Grantee under the Plan. Such offer shall be
communicated to the Company by written notice, stipulating the terms and
conditions of such offer therein, forwarded by registered or certified mail. The
Company shall exercise its right to repurchase (or to designate a third party to
repurchase) by giving written notice thereof by registered or certified mail to
the Grantee, his executor, administrator or beneficiaries no later than 30 days
after the date of the receipt of the offer. Within 30 days after receipt of such
notice, the Grantee, his executor, administrator or beneficiaries shall deliver
a certificate or certificates for the shares being sold, together with
appropriate duly signed stock powers transferring such shares to the Company,
and the Company shall deliver to the Grantee, his executor, administrator or
beneficiaries the Company's check in the amount of the purchase price for the
shares being sold.
In the event that such offer shall not be accepted by written notice
forwarded by registered or certified mail no later than 30 days after the date
of the receipt of the offer, the
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Grantee, his executor, administrator or beneficiaries may dispose of the shares
offered to any person, firm or corporation, without restriction, except that the
subsequent transfer of such shares shall not be on terms more favorable to the
transferee than the terms upon which the shares were originally offered to the
Company. If, within 60 days after the expiration of the 30 day period of any
offer made hereunder, the Grantee, his executor, administrator, or beneficiaries
offering to sell any shares issued hereunder, shall fail to consummate a sale
thereof to any other purchaser, then no sale of such shares may be made
thereafter without again reoffering the same to the Company in accordance with
the provisions of this subparagraph.
(b) Unless otherwise determined by the Committee at or after grant, in
the event of the Grantee's termination of employment, service on the Board of
Directors of the Company, or service as a consultant for any reason, whether
voluntary or involuntary, the Company shall have the right to repurchase all
shares issued or to be issued to the Grantee under this Plan at fair market
value, as may be determined by the Board of Directors from time to time, but not
less than Grantee's cost.
The Company's right to repurchase shall be exercisable at any time
within one year after the date of Grantee's termination of employment, service
on the Board of Directors of the Company, or service as a consultant by the
delivery of written notice by the Company to such effect to the Grantee, his
executor, administrator or beneficiaries. Within 30 days after receipt of such
notice, the Grantee, his executor, administrator or beneficiaries shall deliver
a certificate or certificates for the shares being sold, together with
appropriate duly signed stock powers transferring such shares to the Company,
and the Company shall deliver to the Grantee, his executor, administrator or
beneficiaries the Company's check in the amount of the purchase price for the
shares being sold.
(c) In the event that the Board determines in good faith that the
Grantee has materially breached any non-competition, non-solicitation or
non-disclosure agreement or obligation, whether oral or written or imposed by
law or by contract, with the Company, the Company shall have the right to
repurchase all or any portion of the shares issued or to be issued to the
Grantee under this Plan at a price equal to the exercise price or other purchase
price actually paid by the Grantee for such shares, and any gain realized by
Grantee from the disposition of any shares issued to the Grantee under this Plan
within the two-year period prior to the event shall be paid by Grantee to the
Company. The Board shall have the authority to release a Grantee from his
obligations pursuant to this paragraph if it determines such action to be in the
best interests of the Company
The Company's right to repurchase shall be exercisable at any time after
the date of such determination by the delivery of written notice by the Company
to such effect to the Grantee, his executor, administrator or beneficiaries.
Within 30 days after receipt of such notice, the Grantee, his executor,
administrator or beneficiaries shall deliver a certificate or certificates for
the shares being sold, together with appropriate duly signed stock powers
transferring such shares to the Company and a check for the amount of any gains
realized as provided above. Promptly upon receipt thereof, the Company shall
deliver to the Grantee, his executor,
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administrator or beneficiaries the Company's check in the amount of the purchase
price for the shares being purchased.
(d) The right of first refusal and buy-back rights granted to the
Company pursuant to subparagraphs (a) and (b) of this Section 8 shall terminate
when the Company has consummated a public offering of its Common Stock pursuant
to the Securities Act. The buy-back rights granted to the Company pursuant to
subparagraph (c) of this Section 8 shall survive indefinitely.
(e) The right of first refusal and buy-back rights granted to the
Company pursuant to subparagraphs (a), (b) and (c) of this Section 8 are
separate and independent obligations of the Grantee and shall survive any
termination of employment, Board service or service as a consultant.
Furthermore, such rights shall not be construed as an absolute obligation on the
part of the Company to repurchase any shares tendered.
(f) Each certificate for shares issued by the Company to the Grantee
shall bear an appropriate legend that the transfer of such shares is restricted
by the provisions of this Plan and, if applicable, the Securities Act or any
state securities law.
SECTION 9. AMENDMENTS AND TERMINATION
The Board may amend, alter or discontinue the Plan at any time and from
time to time, but no amendment, alteration or discontinuation shall be made
which would impair the rights of an optionee or Participant under a Stock
Option, Stock Appreciation Right and/or Restricted Stock award theretofore
granted, without the optionee's or Participant's consent.
The Committee may amend the terms of any Stock Option or other award
theretofore granted, prospectively or retroactively, but no such amendment shall
impair the rights of any holder without the holder's consent. The Committee may
also substitute new Stock Options for previously granted Stock Options,
including previously granted Stock Options having higher option prices. Subject
to the above provisions, the Board shall have broad authority to amend the Plan
to take into account changes in applicable tax laws, securities laws and
accounting rules, as well as other developments.
SECTION 10. UNFUNDED STATUS OF PLAN
The Plan is intended to constitute an "unfunded" plan of incentive and
deferred compensation. With respect to any payments not yet made to a
Participant or optionee by the Company, nothing contained herein shall give any
such Participant or optionee any rights that are greater than those of a general
creditor of the Company. In its sole discretion, the Committee may authorize the
creation of trusts or other arrangements to meet the obligations created under
the Plan to deliver Stock or payments in lieu of or with respect to awards
hereunder; provided, however, that, address the Committee otherwise determines
with the consent of the affected Participant, the existence of such trusts or
other arrangements is consistent with the "unfunded" status of the Plan.
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SECTION 11. GENERAL PROVISIONS
(a) The Committee may require each person purchasing shares pursuant to
a Stock Option or receiving Stock upon the expiration of any Restriction Period
under the Plan to represent to and agree with the Company in writing that the
Participant is acquiring the shares without a view to distribution thereof. The
certificates for such shares may include any legend which the Committee deems
appropriate to reflect any restrictions on transfer under the Securities Act or
any state securities law.
All certificates for shares of Stock or other securities delivered under
the Plan shall be subject to such stop-transfer orders and other restrictions as
the Committee may deem advisable under the rules, regulations and other
requirements of the Securities Act, the Securities Exchange Act of 1934, as
amended, any stock exchange or over-the counter market upon which the Stock is
then listed, and any applicable federal or state securities law, and the
Committee may cause a legend or legends to be put on any such certificates to
make appropriate reference to such restrictions.
(b) Nothing contained in this Plan shall prevent the Board from adopting
other or additional compensation arrangements, subject to stockholder approval
if such approval is required, and such arrangements may be either generally
applicable or applicable only in specific cases.
(c) The adoption of the Plan shall not confer upon any Participant any
right to continued employment with the Company nor shall it interfere in any way
with the right of the Company to terminate its relationship with any of its
employees, directors or independent contractors at any time.
(d) No later than the date as of which an amount first becomes
includible in the gross income of the Participant for federal income tax
purposes with respect to any award under the Plan, the Participant who is an
officer or key employee of the Company shall pay to the Company, or make
arrangements satisfactory to the Committee regarding the payment of, any
federal, state, or local taxes of any kind required by law to be withheld with
respect to such amount. Unless otherwise determined by the Committee, the
minimum required withholding obligations may be settled with Stock, including
Stock that is part of the award that gives rise to the withholding requirement.
The obligations of the Company under the Plan shall be conditional on such
payment or arrangements and the Company shall, to the extent permitted by law,
have the right to deduct any such taxes from any payment of any kind otherwise
due to the Participant.
(e) The reinvestment of dividends in additional Restricted Stock at the
time of any dividend payment shall only be permissible if sufficient shares of
Stock are available under Section 3 for such reinvestment.
(f) The Committee shall establish such procedures as it deems
appropriate for a Participant to designate a beneficiary to whom any amounts
payable in the event of the Participant's death are to be paid.
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(g) The Plan shall be governed by and subject to all applicable laws and
to the approvals by any governmental or regulatory agency as may be required.
SECTION 12. EFFECTIVE DATE AND TERM OF PLAN
The Plan shall be effective as of May 8, 1997, and was approved by the
Company's stockholders on May 8, 1997. No Stock Option, Stock Appreciation Right
or Restricted Stock award shall be granted pursuant to the Plan on or after May
8, 2007, but awards granted prior to such tenth anniversary may extend beyond
that date; provided, however, that if the Plan is not approved by a majority of
the votes cast at a duly held meeting at which a quorum representing a majority
of all outstanding voting stock of the Company is, either in person or by proxy,
present and voting on the Plan, within 12 months after said date, the Plan and
all Options, Stock Appreciation Rights or Restricted Stock awards granted
hereunder shall be null and void and no additional Options, Stock Appreciation
Rights or Restricted Stock awards shall be granted hereunder.
SECTION 13. INTERPRETATION
A determination of the Committee as to any question which may arise with
respect to the interpretation of the provisions of this Plan or any Options,
Stock Appreciation Rights or Restricted Stock awards shall be final and
conclusive, and nothing in this Plan, or in any regulation hereunder, shall be
deemed to give any Participant, his legal representatives, assigns or any other
person any right to participate herein except to such extent, if any, as the
committee may have determined or approved pursuant to this Plan. The Committee
may consult with legal counsel who may be counsel to the Company and shall not
incur any liability for any action taken in good faith in reliance upon the
advice of such counsel.
SECTION 14. GOVERNING LAW
With respect to any Incentive Stock Options granted pursuant to the Plan
and the agreements thereunder, the Plan, such agreements and any Incentive Stock
Options granted pursuant thereto shall be governed by the applicable Code
provisions to the maximum extent possible. Otherwise, the laws of the State of
Delaware shall govern the operation of, and the rights of Participants under,
the Plan, the agreements and any Options, Stock Appreciation Rights or
Restricted Stock awards granted thereunder.
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EXHIBIT 5.01
February 17, 1998
Excite, Inc.
555 Broadway
Redwood City, California 94063
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form S-8
(the "Registration Statement") to be filed by you with the Securities and
Exchange Commission on or about February 17, 1998 in connection with the
registration under the Securities Act of 1933, as amended, of an aggregate of
440,835 shares of your Common Stock (the "Stock") subject to issuance by you
pursuant to the exercise of options originally granted by Matchlogic, Inc.
("Matchlogic") which options were assumed and converted into options to purchase
Stock (the "Assumed Options") pursuant to the terms of the Agreement and Plan of
Reorganization (the "Plan") dated as of January 15, 1998 by and among, Excite,
Inc. ("Excite"), XCite Acquisition Corporation ("Sub") and Matchlogic, Inc.
("Matchlogic").
In rendering this opinion, we have examined the following:
(1) the Registration Statement, together with the exhibits filed as a
part thereof;
(2) minutes of the Excite Board of Directors dated January 23, 1998
relating to acquisition of Matchlogic by Excite and the
assumption of the options to purchase shares of Common Stock of
Matchlogic;
(3) the Articles of Incorporation of Excite, Inc. ("Excite") as
certified by the California Secretary of State on January 29,
1998;
(4) the Bylaws of Excite as certified by Excite on February 3, 1998.
(5) the Plan;
(6) the Certificate of Merger filed with the Secretary of State of
the State of Delaware on February 3, 1998;
(7) a list of outstanding shares of Excite Common Stock, Preferred
Stock, warrants and options, dated as of February 1, 1998 that
you have provided us;
(8) the Matchlogic, Inc. 1996 Stock Option Plan, the form of
Matchlogic, Inc. 1996 Stock Option Plan Incentive Stock Option
Agreement and the form of Matchlogic, Inc. 1996 Stock Option Plan
Non-Qualified Stock Option Agreement together with forms of the
redated grant and exercise agreements (collectively, the "Option
Plans"); and
(9) a Management Certificate of even date herewith in which you have
given us certain factual representations.
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the legal capacity of all natural
persons, the genuineness of all signatures on original documents, the
authenticity of all documents submitted to us as originals, the conformity to
originals of all documents submitted to us as copies, the lack of any
undisclosed terminations, modifications, waivers or amendments to any documents
reviewed by us and the due execution and delivery of all documents where due
execution and delivery are prerequisites to the effectiveness thereof.
As to matters of fact relevant to this opinion, we have relied solely
upon our examination of the documents referred to above and have assumed the
current accuracy and completeness of the information included in the documents
referred to above. We have made no independent investigation or other attempt to
verify the accuracy of
<PAGE> 2
Gentlemen/Ladies
February 3, 1998
Page 2
any of such information or to determine the existence or non-existence of any
other factual matters; however, we are not aware of any facts that would lead us
to believe that the opinion expressed herein is not accurate.
Based upon the foregoing, it is our opinion that the 440,835 shares of
Stock that may be issued and sold by you upon exercise of the Assumed Options,
when issued and sold in the manner referred to in the Prospectus associated with
the Registration Statement and in accordance with the Stock Option Plans
pursuant to which the Assumed Options were granted, will be validly issued,
fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement, the Prospectus constituting a part thereof and any
amendments thereto.
This opinion speaks only as of its date and is intended solely for your
use as an exhibit to the Registration Statement for the purpose of the above
sale of the Stock and is not to be relied upon for any other purpose.
Very truly yours,
FENWICK & WEST LLP
BY: /s/ Fred Greguras
____________________________________
<PAGE> 1
EXHIBIT 23.02
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Options to purchase Common Stock of Matchlogic Inc.
assumed by registration pursuant to an Agreement and Plan of Reorganization
dated as of January 15, 1998 of our report dated January 29, 1998 with respect
to the consolidated financial statements of Excite, Inc. included in its Annual
Report (Form 10-K as amended by Form 10-K/A) for the year ended December 31,
1997, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Palo Alto, California
February 18, 1998
<PAGE> 1
EXHIBIT 23.03
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated August 6, 1996, which appears on page
45 of the 1996 Annual Report on Form 10-K/A relating to the financial statements
of The McKinley Group, Inc., which do not appear in the Annual Report on Form
10-K/A.
PRICE WATERHOUSE LLP
San Jose, California
February 17, 1998
