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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (date of earliest event reported) January 19, 1999
EXCITE, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 0-28064 77-0378215
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
555 Broadway
Redwood City, California 94063
(Address of principal executive offices) (Zip Code)
</TABLE>
Registrant's telephone number, including area code (650) 568-6000
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Item 5: Other Events
On January 19, 1999, Excite, Inc. (the "Company"), At Home
Corporation ("At Home") and Countdown Acquisition Corp. ("Merger Sub") entered
into a definitive Agreement and Plan of Reorganization (the "Merger Agreement").
Pursuant to the Merger Agreement and subject to the terms and conditions set
forth therein, the Merger Sub will be merged with and into the Company (the
"Merger"), with the Company surviving the Merger and becoming a wholly-owned
subsidiary of At Home. At the effective time of the Merger, all outstanding
shares of the Company's capital stock will be exchanged for shares of At Home
Series A Common Stock, and options and warrants to purchase Company capital
stock will exchanged for an option or warrant, as applicable, to purchase shares
of At Home Series A Common Stock and the exercise price and number of shares of
Company capital stock subject to each such Company option or warrant will be
appropriately adjusted to reflect such exchange ratio. Any outstanding
convertible debt at the effective time of the Merger will thereafter be
convertible into the number of shares of At Home Series A Common Stock to which
a holder of Company common stock would have been entitled to receive if such
holder had converted such convertible debt into Company common stock prior to
the effective time of the Merger. Each share of Company common stock will be
exchanged for 1.041902 shares of At Home Series A Common Stock. The transaction
will qualify as a tax-free reorganization and will be accounted for as a
purchase. Following the transaction, George Bell, Chief Executive Officer of the
Company, will continue in that role as the Company becomes a subsidiary of At
Home, reporting to Tom Jermoluk, Chairman and Chief Executive Officer of At
Home. In addition, Mr. Bell will be appointed as a member of the At Home Board
of Directors.
In connection with the execution of the Merger Agreement, the
Company and At Home entered into a Stock Option Agreement (the "Stock Option
Agreement"), pursuant to which the Company granted to At Home an option to
purchase up to 19.9% of the outstanding shares of Company common stock, which
option is exercisable upon the occurrence of certain events specified in the
Stock Option Agreement.
A copy of the Merger Agreement and a copy of the Stock Option
Agreement are included in this report as Exhibit 2.1 and 2.2, respectively. The
foregoing description is qualified in its entirety by reference to the full text
of such exhibits. A joint press release announcing these transactions is
attached to this report as Exhibit 99.1. The Merger is subject to various
conditions, including clearance under the Hart-Scott-Rodino Antitrust
Improvements Act and approval of the Company's and At Home's stockholders.
Item 7: Financial Statements and Exhibits.
(c) Exhibits
2.1 Agreement and Plan of Reorganization dated as of January
19, 1999 by and among At Home Corporation, Countdown
Acquisition Corp. and Excite, Inc.
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2.2 Stock Option Agreement dated as of January 19, 1999
between Excite, Inc. and At Home Corporation.
99.1 Joint Press Release dated January 19, 1999.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Dated: January 20, 1999
EXCITE, INC.
By: /s/ Robert C. Hood
-------------------------------------
Robert C. Hood
Executive Vice President, Chief
Administrative Officer and Chief
Financial Officer
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EXHIBIT INDEX
Exhibit
2.1 Agreement and Plan of Reorganization dated as of January 19, 1999 by and
among At Home Corporation, Countdown Acquisition Corp. and Excite, Inc.
2.2 Stock Option Agreement dated as of January 19, 1999 between Excite, Inc.
and At Home Corporation.
99.1 Press release of the Company released January 19, 1999.
<PAGE> 1
EXHIBIT 2.1
AGREEMENT AND PLAN OF REORGANIZATION
This AGREEMENT AND PLAN OF REORGANIZATION is made and entered into as
of January 19, 1999, among At Home Corporation, a Delaware corporation
("PARENT"), Countdown Acquisition Corp., a Delaware corporation and a
wholly-owned subsidiary of Parent ("MERGER SUB"), and Excite, Inc. a Delaware
corporation (the "COMPANY").
RECITALS
A. Upon the terms and subject to the conditions of this Agreement and
in accordance with the Delaware General Corporation Law ("DELAWARE LAW"),
Parent, Merger Sub and the Company intend to enter into a business combination
transaction.
B. The Board of Directors of the Company (i) has determined that the
Merger (as defined in Section 1.1) is fair to, and in the best interests of, the
Company and its stockholders, (ii) has approved this Agreement, the Merger and
the other transactions contemplated by this Agreement and (iii) subject to the
terms and conditions of this Agreement, has determined to recommend that the
stockholders of the Company adopt and approve this Agreement and approve the
Merger.
C. The Board of Directors of Parent (i) has determined that the Merger
(as defined in Section 1.1) is fair to, and in the best interests of, Parent and
its stockholders, (ii) has approved this Agreement, the Merger and the other
transactions contemplated by this Agreement and (iii) has determined to
recommend that the stockholders of Parent approve the issuance of shares of
Parent Common Stock (as defined below) pursuant to the Merger and approve an
amendment to Parent's Certificate of Incorporation to increase the authorized
number of shares of Parent Common Stock so as to permit the transactions
contemplated hereby, subject to and upon consummation of the Merger.
D. Concurrently with the execution of this Agreement, and as a
condition and inducement to Parent's and Company's respective willingness to
enter into this Agreement, certain stockholders of Company are entering into
Voting Agreements in substantially the form attached hereto as Exhibit A-1 (the
"COMPANY VOTING AGREEMENTS"), and certain stockholders of Parent are entering
into Voting Agreements in substantially the form attached hereto as Exhibit A-2
(the "PARENT VOTING AGREEMENTS").
E. Concurrently with the execution of this Agreement, and as a
condition and inducement to Parent's willingness to enter into this Agreement,
the Company shall execute and deliver a Stock Option Agreement in favor of
Parent in substantially the form attached hereto as Exhibit B (the "STOCK OPTION
AGREEMENT") . The Board of Directors of the Company has approved the Stock
Option Agreement.
F. The parties intend, by executing this Agreement, to adopt a plan of
reorganization within the meaning of Section 368 of the Internal Revenue Code of
1986, as amended (the "CODE").
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NOW, THEREFORE, in consideration of the covenants, promises and
representations set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
ARTICLE I
THE MERGER
1.1 The Merger. At the Effective Time (as defined in Section 1.2) and
subject to and upon the terms and conditions of this Agreement and the
applicable provisions of Delaware Law, Merger Sub shall be merged with and into
the Company (the "MERGER"), the separate corporate existence of Merger Sub shall
cease and the Company shall continue as the surviving corporation. The Company
as the surviving corporation after the Merger is hereinafter sometimes referred
to as the "SURVIVING CORPORATION".
1.2 Effective Time; Closing. Subject to the provisions of this
Agreement, the parties hereto shall cause the Merger to be consummated by filing
a Certificate of Merger with the Secretary of State of the State of Delaware in
accordance with the relevant provisions of Delaware Law (the "CERTIFICATE OF
MERGER") (the time of such filing with the Secretary of State of the State of
Delaware (or such later time as may be agreed in writing by the Company and
Parent and specified in the Certificate of Merger) being the "EFFECTIVE TIME")
as soon as practicable on or after the Closing Date (as herein defined). Unless
the context otherwise requires, the term "AGREEMENT" as used herein refers
collectively to this Agreement and Plan of Reorganization and the Certificate of
Merger. The closing of the Merger (the "CLOSING") shall take place at the
offices of Wilson Sonsini Goodrich & Rosati, Professional Corporation, at a time
and date to be specified by the parties, which shall be no later than the second
business day after the satisfaction or waiver of the conditions set forth in
Article VI, or at such other time, date and location as the parties hereto agree
in writing (the "CLOSING DATE").
1.3 Effect of the Merger. At the Effective Time, the effect of the
Merger shall be as provided in this Agreement and the applicable provisions of
Delaware Law. Without limiting the generality of the foregoing, and subject
thereto, at the Effective Time all the property, rights, privileges, powers and
franchises of the Company and Merger Sub shall vest in the Surviving
Corporation, and all debts, liabilities and duties of the Company and Merger Sub
shall become the debts, liabilities and duties of the Surviving Corporation.
1.4 Certificate of Incorporation; Bylaws.
(a) At the Effective Time, the Certificate of Incorporation of
Merger Sub, as in effect immediately prior to the Effective Time, shall be the
Certificate of Incorporation of the Surviving Corporation until thereafter
amended as provided by law and such Certificate of Incorporation of the
Surviving Corporation; provided, however, that at the Effective Time the
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Certificate of Incorporation of the Surviving Corporation shall be amended so
that the name of the Surviving Corporation shall be "Excite, Inc.".
(b) The Bylaws of Merger Sub, as in effect immediately prior
to the Effective Time, shall be, at the Effective Time, the Bylaws of the
Surviving Corporation until thereafter amended.
1.5 Directors and Officers. The initial directors of the Surviving
Corporation shall be the directors of Merger Sub immediately prior to the
Effective Time, until their respective successors are duly elected or appointed
and qualified. The initial officers of the Surviving Corporation shall be the
officers of Merger Sub immediately prior to the Effective Time, until their
respective successors are duly appointed.
1.6 Effect on Capital Stock. Subject to the terms and conditions of
this Agreement, at the Effective Time, by virtue of the Merger and without any
action on the part of Merger Sub, the Company or the holders of any of the
following securities, the following shall occur:
(a) Conversion of Company Capital Stock.
(i) Company Common Stock. Each share of Common Stock,
par value $0.001 per share, of the Company (including the associated Rights (as
defined in that certain Rights Agreement (the "COMPANY RIGHTS PLAN") dated as of
October 15, 1998 between the Company and BankBoston, N.A., as Rights Agent)
("COMPANY COMMON STOCK") issued and outstanding immediately prior to the
Effective Time, other than any shares of the Company Common Stock to be canceled
pursuant to Section 1.6(b), will be canceled and extinguished and automatically
converted (subject to Section 1.6(e)) into the right to receive 1.041902 shares
(the "EXCHANGE RATIO") of the Series A Common Stock, par value $0.01 per share,
of Parent ("PARENT COMMON STOCK") upon surrender of the certificate representing
such share of Company Common Stock in the manner provided in Section 1.7 (or in
the case of a lost, stolen or destroyed certificate, upon delivery of an
affidavit (and bond, if required) in the manner provided in Section 1.9). If any
shares of Company Common Stock outstanding immediately prior to the Effective
Time are unvested or are subject to a repurchase option, risk of forfeiture or
other condition under any applicable restricted stock purchase agreement or
other agreement with the Company, then the shares of Parent Common Stock issued
in exchange for such shares of Company Common Stock will also be unvested and
subject to the same repurchase option, risk of forfeiture or other condition,
and the certificates representing such shares of Parent Common Stock may
accordingly be marked with appropriate legends. The Company shall take all
action that may be necessary to ensure that, from and after the Effective Time,
Parent is entitled to exercise any such repurchase option or other right set
forth in any such restricted stock purchase agreement or other agreement.
(ii) Company Preferred Stock. Each share of Series
E-3 Preferred Stock, par value $0.001 per share, of the Company (including the
associated Rights (as defined in the Company Rights Plan), if any) ("COMPANY
PREFERRED STOCK" and, together with Company Common
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Stock, "COMPANY CAPITAL STOCK") issued and outstanding immediately prior to the
Effective Time, other than any shares of the Company Preferred Stock to be
canceled pursuant to Section 1.6(b), will be canceled and extinguished and
automatically converted (subject to Section 1.6(e)) into the right to receive a
number of shares of Parent Common Stock equal to the Exchange Ratio multiplied
by the number of shares of Company Common Stock issuable upon conversion of one
share of Company Preferred Stock, upon surrender of the certificate representing
such share of Company Preferred Stock in the manner provided in Section 1.7 (or
in the case of a lost, stolen or destroyed certificate, upon delivery of an
affidavit (and bond, if required) in the manner provided in Section 1.9). If any
shares of Company Preferred Stock outstanding immediately prior to the Effective
Time are unvested or are subject to a repurchase option, risk of forfeiture or
other condition under any applicable restricted stock purchase agreement or
other agreement with the Company, then the shares of Parent Common Stock issued
in exchange for such shares of Company Preferred Stock will also be unvested and
subject to the same repurchase option, risk of forfeiture or other condition,
and the certificates representing such shares of Parent Common Stock may
accordingly be marked with appropriate legends. The Company shall take all
action that may be necessary to ensure that, from and after the Effective Time,
Parent is entitled to exercise any such repurchase option or other right set
forth in any such restricted stock purchase agreement or other agreement.
(b) Cancellation of Parent-Owned Stock. Each share of Company
Capital Stock held by the Company or owned by Merger Sub, Parent or any direct
or indirect wholly-owned subsidiary of the Company or of Parent immediately
prior to the Effective Time shall be canceled and extinguished without any
conversion thereof.
(c) Stock Options; Employee Stock Purchase Plans. At the
Effective Time, all options to purchase Company Common Stock then outstanding
under the Company's 1995 Equity Incentive Plan, the Company's 1996 Equity
Incentive Plan, as amended, the Company's 1996 Directors Stock Option Plan, the
Netbot, Inc. 1996 Stock Option Plan, the MatchLogic, Inc. 1997 Equity
Compensation Plan, the MatchLogic, Inc. 1996 Stock Option Plan, the Throw, Inc.
1996 Option Plan and the Classifieds 2000, Inc. 1996 Stock Option Plan
(collectively, the "COMPANY STOCK OPTION PLANS") shall be assumed by Parent in
accordance with Section 5.9 hereof. Rights outstanding under the Company's 1996
Employee Stock Purchase Plan (the "COMPANY PURCHASE PLAN") shall be treated as
set forth in Section 5.9 hereof.
(d) Capital Stock of Merger Sub. Each share of Common Stock of
Merger Sub (the "MERGER SUB COMMON STOCK") issued and outstanding immediately
prior to the Effective Time shall be converted into one validly issued, fully
paid and nonassessable share of Common Stock of the Surviving Corporation. Each
certificate evidencing ownership of shares of Merger Sub Common Stock shall
evidence ownership of such shares of capital stock of the Surviving Corporation.
(e) Fractional Shares. No fraction of a share of Parent Common
Stock will be issued by virtue of the Merger, but in lieu thereof each holder of
shares of Company Capital Stock who would otherwise be entitled to a fraction of
a share of Parent Common Stock (after aggregating all fractional shares of
Parent Common Stock that otherwise would be received by such holder) shall,
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upon surrender of such holder's Certificate(s) (as defined in Section 1.7(c)),
receive from Parent an amount of cash (rounded to the nearest whole cent),
without interest, equal to the product of (i) such fraction, multiplied by (ii)
the average closing price of one share of Parent Common Stock for the ten (10)
most recent days that Parent Common Stock has traded ending on the trading day
ending one day prior to the Closing Date, as reported on the Nasdaq National
Market System ("NASDAQ").
(f) Adjustments to Exchange Ratio. The Exchange Ratio shall be
adjusted to reflect fully the appropriate effect of any stock split, reverse
stock split, stock dividend (including any dividend or distribution of
securities convertible into Parent Common Stock or Company Capital Stock),
reorganization, recapitalization, reclassification or other like change with
respect to Parent Common Stock or Company Capital Stock occurring on or after
the date hereof and prior to the Effective Time.
1.7 Surrender of Certificates.
(a) Exchange Agent. Parent shall select an institution
reasonably satisfactory to the Company to act as the exchange agent (the
"EXCHANGE AGENT") in the Merger.
(b) Parent to Provide Common Stock. Promptly after the
Effective Time, Parent shall make available to the Exchange Agent for exchange
in accordance with this Article I, the shares of Parent Common Stock issuable
pursuant to Section 1.6 in exchange for outstanding shares of Company Capital
Stock, and cash in an amount sufficient for payment in lieu of fractional shares
pursuant to Section 1.6(e) and any dividends or distributions which holders of
shares of Company Capital Stock may be entitled pursuant to Section 1.7(d).
(c) Exchange Procedures. Promptly after the Effective Time,
Parent shall cause the Exchange Agent to mail to each holder of record (as of
the Effective Time) of a certificate or certificates (the "CERTIFICATES") which
immediately prior to the Effective Time represented outstanding shares of
Company Capital Stock whose shares were converted into the right to receive
shares of Parent Common Stock pursuant to Section 1.6, cash in lieu of any
fractional shares pursuant to Section 1.6(f) and any dividends or other
distributions pursuant to Section 1.7(d), (i) a letter of transmittal (which
shall specify that delivery shall be effected, and risk of loss and title to the
Certificates shall pass, only upon delivery of the Certificates to the Exchange
Agent and shall be in such form and have such other provisions as Parent may
reasonably specify) and (ii) instructions for use in effecting the surrender of
the Certificates in exchange for certificates representing shares of Parent
Common Stock, cash in lieu of any fractional shares pursuant to Section 1.6(e)
and any dividends or other distributions pursuant to Section 1.7(d). Upon
surrender of Certificates for cancellation to the Exchange Agent or to such
other agent or agents as may be appointed by Parent, together with such letter
of transmittal, duly completed and validly executed in accordance with the
instructions thereto, the holders of such Certificates shall be entitled to
receive in exchange therefor certificates representing the number of whole
shares of Parent Common Stock, payment in lieu of fractional shares which such
holders have the right to receive pursuant to Section 1.6(e) and any
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dividends or distributions payable pursuant to Section 1.7(d), and the
Certificates so surrendered shall forthwith be canceled. Until so surrendered,
outstanding Certificates will be deemed from and after the Effective Time, for
all corporate purposes, subject to Section 1.7(d) as to the payment of
dividends, to evidence the ownership of the number of full shares of Parent
Common Stock into which such shares of Company Capital Stock shall have been so
converted and the right to receive an amount in cash in lieu of the issuance of
any fractional shares in accordance with Section 1.6(e) and any dividends or
distributions payable pursuant to Section 1.7(d).
(d) Distributions With Respect to Unexchanged Shares. No
dividends or other distributions declared or made after the date of this
Agreement with respect to Parent Common Stock with a record date after the
Effective Time will be paid to the holders of any unsurrendered Certificates
with respect to the shares of Parent Common Stock represented thereby until the
holders of record of such Certificates shall surrender such Certificates.
Subject to applicable law, following surrender of any such Certificates, the
Exchange Agent shall deliver to the record holders thereof, without interest,
certificates representing whole shares of Parent Common Stock issued in exchange
therefor along with payment in lieu of fractional shares pursuant to Section
1.6(e) hereof and the amount of any such dividends or other distributions with a
record date after the Effective Time payable with respect to such whole shares
of Parent Common Stock.
(e) Transfers of Ownership. If certificates for shares of
Parent Common Stock are to be issued in a name other than that in which the
Certificates surrendered in exchange therefor are registered, it will be a
condition of the issuance thereof that the Certificates so surrendered will be
properly endorsed and otherwise in proper form for transfer and that the persons
requesting such exchange will have paid to Parent or any agent designated by it
any transfer or other taxes required by reason of the issuance of certificates
for shares of Parent Common Stock in any name other than that of the registered
holder of the Certificates surrendered, or established to the satisfaction of
Parent or any agent designated by it that such tax has been paid or is not
payable.
(f) Required Withholding. Each of the Exchange Agent, Parent
and the Surviving Corporation shall be entitled to deduct and withhold from any
consideration payable or otherwise deliverable pursuant to this Agreement to any
holder or former holder of Company Capital Stock such amounts as may be required
to be deducted or withheld therefrom under the Code or under any provision of
state, local or foreign tax law or under any other applicable Legal Requirement
(as defined in Section 3.10). To the extent such amounts are so deducted or
withheld, such amounts shall be treated for all purposes under this Agreement as
having been paid to the person to whom such amounts would otherwise have been
paid.
(g) No Liability. Notwithstanding anything to the contrary in
this Section 1.7, neither the Exchange Agent, Parent, the Surviving Corporation
nor any party hereto shall be liable to a holder of shares of Parent Common
Stock or Company Capital Stock for any amount properly paid to a public official
pursuant to any applicable abandoned property, escheat or similar law.
1.8 No Further Ownership Rights in Company Capital Stock. All shares of
Parent
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Common Stock issued upon the surrender for exchange of shares of Company Capital
Stock in accordance with the terms hereof (including any cash paid in respect
thereof pursuant to Section 1.6(f) and 1.7(d)) shall be deemed to have been
issued in full satisfaction of all rights pertaining to such shares of Company
Capital Stock, and there shall be no further registration of transfers on the
records of the Surviving Corporation of shares of Company Capital Stock which
were outstanding immediately prior to the Effective Time. If after the Effective
Time Certificates are presented to the Surviving Corporation for any reason,
they shall be canceled and exchanged as provided in this Article I.
1.9 Lost, Stolen or Destroyed Certificates. In the event any
Certificates shall have been lost, stolen or destroyed, the Exchange Agent shall
issue in exchange for such lost, stolen or destroyed Certificates, upon the
making of an affidavit of that fact by the holder thereof, such shares of Parent
Common Stock, cash for fractional shares, if any, as may be required pursuant to
Section 1.6(e) and any dividends or distributions payable pursuant to Section
1.7(d); provided, however, that Parent may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed Certificates to deliver a bond in such sum as it may reasonably direct
as indemnity against any claim that may be made against Parent, the Company or
the Exchange Agent with respect to the Certificates alleged to have been lost,
stolen or destroyed.
1.10 Tax Consequences. It is intended by the parties hereto that the
Merger shall constitute a reorganization within the meaning of Section 368 of
the Code. The parties hereto adopt this Agreement as a "plan of reorganization"
within the meaning of Sections 1.368-2(g) and 1.368-3(a) of the United States
Income Tax Regulations.
1.11 Taking of Necessary Action; Further Action. If, at any time after
the Effective Time, any further action is necessary or desirable to carry out
the purposes of this Agreement and to vest the Surviving Corporation with full
right, title and possession to all assets, property, rights, privileges, powers
and franchises of the Company and Merger Sub, the officers and directors of the
Company and Merger Sub will take all such lawful and necessary action, so long
as such action is consistent with this Agreement. Parent shall cause Merger Sub
to perform fully all of its obligations relating to this Agreement and the
transactions contemplated hereby.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
As of the date hereof and as of the Closing Date, the Company
represents and warrants to Parent and Merger Sub, subject to the exceptions
specifically disclosed in writing in the disclosure letter supplied by the
Company to Parent dated as of the date hereof and certified by a duly authorized
officer of the Company (the "COMPANY SCHEDULES"), as follows:
2.1 Organization of the Company.
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(a) The Company has no subsidiaries, except for the
corporations identified in Part 2.1(a)(i) of the Company Schedules; and neither
the Company nor any of the other corporations identified in Part 2.1(a)(i) of
the Company Schedules owns any capital stock of, or any equity interest of any
nature in, any other entity, other than the entities identified in Part
2.1(a)(ii) of the Company Schedules, except for passive investments in equity
interests of public companies as part of the cash management program of the
Company. Neither the Company nor any subsidiary thereof has agreed or is
obligated to make, or is bound by any written, oral or other agreement,
contract, subcontract, lease, binding understanding, instrument, note, option,
warranty, purchase order, license, sublicense, insurance policy, benefit plan or
legally binding commitment or undertaking of any nature, as in effect as of the
date hereof or as may hereinafter be in effect ("CONTRACT") under which Contract
it may become obligated to make, any future investment in or capital
contribution to any other entity. Neither the Company, nor any subsidiary
thereof, has, at any time, been a general partner of any general partnership,
limited partnership or other entity.
(b) The Company and each of its subsidiaries is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and has all necessary corporate power and
authority: (i) to conduct its business in the manner in which its business is
currently being conducted; (ii) to own and use its assets in the manner in which
its assets are currently owned and used; and (iii) to perform its obligations
under all Contracts by which it is bound.
(c) The Company and each of its subsidiaries is qualified to
do business as a foreign corporation, and is in good standing, under the laws of
all jurisdictions where the nature of its business requires such qualification
and where the failure to so qualify would have a Material Adverse Effect (as
defined in Section 8.3) on the Company.
(d) The Company has delivered or made available to Parent a
true and correct copy of the Certificate of Incorporation (including any
Certificate of Designations) and Bylaws of the Company and similar governing
instruments of each of its subsidiaries, each as amended to date (collectively,
the "COMPANY CHARTER DOCUMENTS"), and each such instrument is in full force and
effect. The Company is not in violation of any of the provisions of the Company
Charter Documents. None of the Company's subsidiaries is in violation of any
provision of its Articles or Certificate of Incorporation or Bylaws or other
similar governing instruments, except for such violations as are not material to
the Company and its subsidiaries taken as a whole.
(e) The Company has delivered or made available to Parent all
proposed or considered amendments to the Company Charter Documents.
2.2 Company Capital Structure.
(a) The authorized capital stock of the Company consists of:
(i) 100,000,000 shares of Company Common Stock, of which 52,676,876 shares had
been issued and were
<PAGE> 9
outstanding as of the date hereof; and (ii) 4,000,000 shares of preferred stock,
par value $0.001 per share, of which (A) no shares are outstanding as of the
date of this Agreement and (B) 350,000 shares of which have been designated as
Series E-3 Preferred Stock and 250,000 shares of which have been designated as
Series F Junior Participating Preferred Stock. As of the date hereof, an
aggregate of $5.0 million principal amount of convertible promissory notes are
outstanding, which are convertible into shares of Company Common Stock based on
the market price of the Company Common Stock. All of the outstanding shares of
capital stock of the Company have been duly authorized and validly issued, and
are fully paid and nonassessable. As of the date of this Agreement, there are no
shares of Company Common Stock held in treasury by the Company. Upon
consummation of the Merger, (A) the shares of Parent Common Stock issued in
exchange for any shares of Company Common Stock that are subject to a Contract
pursuant to which the Company has the right to repurchase, redeem or otherwise
reacquire any shares of Company Common Stock will, without any further act of
Parent, the Company or any other person, become subject to the restrictions,
conditions and other provisions contained in such Contract, and (B) Parent will
automatically succeed to and become entitled to exercise the Company's rights
and remedies under any such Contract.
(b) As of the date of this Agreement: (i) 10,967,436 shares of
Company Common Stock are subject to issuance pursuant to outstanding options to
purchase Company Common Stock under the Company Stock Option Plans(excluding
options granted pursuant to Section 5.9(d) hereof) for an aggregate exercise
price of $224,746,618; and (ii) 680,665 shares of Company Common Stock are
reserved for future issuance under the Company Purchase Plan. (Stock options
granted by the Company pursuant to the Company Stock Option Plans are referred
to in this Agreement as "COMPANY OPTIONS"). Part 2.2(b) of the Company Schedules
sets forth the following information with respect to each Company Option
outstanding as of the date of this Agreement: (i) the name of the optionee; (ii)
the particular plan pursuant to which such Company Option was granted; (iii) the
number of shares of Company Common Stock subject to such Company Option; (iv)
the exercise price of such Company Option; (v) the date on which such Company
Option was granted or assumed; (vi) the date on which such Company Option
expires and (vii) whether the exercisability of such option will be accelerated
in any way by the transactions contemplated by this Agreement, and indicates the
extent of acceleration. The Company has made available to Parent accurate and
complete copies of all stock option plans pursuant to which the Company has
granted stock options that are currently outstanding, the form of all stock
option agreements evidencing such options and the applicable vesting schedule
for each such option. All shares of Company Common Stock subject to issuance as
aforesaid, upon issuance on the terms and conditions specified in the
instruments pursuant to which they are issuable, would be duly authorized,
validly issued, fully paid and nonassessable. Except as set forth in Part
2.2(b)(i) of the Company Schedules, there are no commitments or agreements of
any character to which the Company is bound obligating the Company to accelerate
the vesting of any Company Option as a result of the Merger.
(c) All outstanding shares of Company Common Stock, all
outstanding Company Options, and all outstanding shares of capital stock of each
subsidiary of the Company have been
<PAGE> 10
issued and granted in compliance with (i) all applicable securities laws and, to
the knowledge of the Company, all other applicable Legal Requirements (as
defined below) and (ii) all material requirements set forth in applicable
Contracts. For the purposes of this Agreement, "LEGAL REQUIREMENTS" means any
federal, state, local, municipal, foreign or other law, statute, constitution,
principle of common law, resolution, ordinance, code, edict, decree, rule,
regulation, ruling or requirement issued, enacted, adopted, promulgated,
implemented or otherwise put into effect by or under the authority of any
Governmental Entity (as defined below).
2.3 Obligations With Respect to Capital Stock. Except as set forth in
Part 2.3 of the Company Schedules, there are no equity securities, partnership
interests or similar ownership interests of any class of any Company equity
security, or any securities exchangeable or convertible into or exercisable for
such equity securities, partnership interests or similar ownership interests,
issued, reserved for issuance or outstanding. Except for securities the Company
owns free and clear of all material claims and Encumbrances, directly or
indirectly through one or more subsidiaries, and except for shares of capital
stock or other similar ownership interests of certain subsidiaries of the
Company that are owned by certain nominee equity holders as required by the
applicable law of the jurisdiction of organization of such subsidiaries (which
shares or other interests do not materially affect the Company's control of such
subsidiaries), as of the date of this Agreement, there are no equity securities,
partnership interests or similar ownership interests of any class of equity
security of any subsidiary of the Company, or any security exchangeable or
convertible into or exercisable for such equity securities, partnership
interests or similar ownership interests, issued, reserved for issuance or
outstanding. For the purposes of this Agreement "ENCUMBRANCES" means any lien,
pledge, hypothecation, charge, mortgage, security interest, encumbrance, claim,
infringement, interference, option, right of first refusal, preemptive right,
community property interest or restriction of any nature (including any
restriction on the voting of any security, any restriction on the transfer of
any security or other asset, any restriction on the receipt of any income
derived from any asset, any restriction on the use of any asset and any
restriction on the possession, exercise or transfer of any other attribute of
ownership of any asset) but does not include liens imposed by law in respect of
obligations not yet due which are owed in respect of taxes or which otherwise
are owed to carriers, warehousepersons or laborers. Except as set forth in Part
2.3 of the Company Schedules or as set forth in Section 2.2 hereof and except
for the Stock Option Agreement, there are no subscriptions, options, warrants,
equity securities, partnership interests or similar ownership interests, calls,
rights (including preemptive rights), commitments or agreements of any character
to which the Company or any of its subsidiaries is a party or by which it is
bound obligating the Company or any of its subsidiaries to issue, deliver or
sell, or cause to be issued, delivered or sold, or repurchase, redeem or
otherwise acquire, or cause the repurchase, redemption or acquisition of, any
shares of capital stock, partnership interests or similar ownership interests of
the Company or any of its subsidiaries or obligating the Company or any of its
subsidiaries to grant, extend, accelerate the vesting of or enter into any such
subscription, option, warrant, equity security, call, right, commitment or
agreement. As of the date of this Agreement, except as contemplated by this
Agreement and except for the Company Rights Plan, there are no registration
rights and there is, except for the Company Voting Agreement, no voting trust,
proxy, rights plan, antitakeover plan or other agreement or understanding to
which the Company is a party or by which it is bound with respect to any equity
security of any class of the Company or with respect to any equity security,
partnership interest or
<PAGE> 11
similar ownership interest of any class of any of its subsidiaries. Stockholders
of the Company will not be entitled to dissenters' or appraisal rights under
applicable state law in connection with the Merger.
2.4 Authority; Non-Contravention.
(a) The Company has all requisite corporate power and
authority to enter into this Agreement and the Stock Option Agreement and to
consummate the transactions contemplated hereby and thereby. The execution and
delivery of this Agreement and the Stock Option Agreement and the consummation
of the transactions contemplated hereby and thereby have been duly authorized by
all necessary corporate action on the part of the Company, subject only to the
approval and adoption of this Agreement and the approval of the Merger by the
Company's stockholders and the filing of the Certificate of Merger pursuant to
Delaware Law. A vote of the holders of a majority of the outstanding shares of
the Company Common Stock is sufficient for the Company's stockholders to approve
and adopt this Agreement and approve the Merger. This Agreement and the Stock
Option Agreement have each been duly executed and delivered by the Company and,
assuming due execution and delivery by Parent and Merger Sub, constitute valid
and binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as enforceability may be limited by
bankruptcy and other similar laws and general principles of equity. The
execution and delivery of this Agreement and the Stock Option Agreement by the
Company do not, and the performance of this Agreement and the Stock Option
Agreement by the Company will not, (i) conflict with or violate the Company
Charter Documents, (ii) subject to obtaining the approval and adoption of this
Agreement and the approval of the Merger by the Company's stockholders as
contemplated in Section 5.2 and compliance with the requirements set forth in
Section 2.4(b) below, conflict with or violate any law, rule, regulation, order,
judgment or decree applicable to the Company or any of its subsidiaries or by
which the Company or any of its subsidiaries or any of their respective
properties is bound or affected, or (iii) result in any material breach of or
constitute a material default (or an event that with notice or lapse of time or
both would become a material default) under, or impair the Company's rights or
alter the rights or obligations of any third party under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or result in
the creation of a material Encumbrance on any of the material properties or
assets of the Company or any of its subsidiaries pursuant to, any material note,
bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise, concession, or other instrument or obligation to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries or its or any of their respective assets are bound or affected. The
terms of this Agreement, including without limitation, the provisions of Article
I and Section 5.9 hereof, do not conflict with or violate the Company Charter
Documents or conflict with or violate or impair the Company's rights or alter
the rights (other than changes in the securities subject thereto from shares of
Company Capital Stock to shares of Parent Common Stock and corresponding
appropriate adjustments to per share conversion or exercise prices thereunder in
accordance with the terms of this Agreement) or obligations of any third party
under any instrument or agreement to which the Company is a party or by which it
is bound relating to the issuance of any securities of the Company,
<PAGE> 12
including without limitation, any options, warrants or Company Preferred Stock,
and, subject to obtaining the approval and adoption of this Agreement and the
approval of the Merger by the Company's stockholders as aforesaid, the
effectuation of the transactions contemplated by Article I and Section 5.9
hereof do not require the approval or consent of any holder of securities of the
Company. As of the date hereof, each share of Company Preferred Stock is
convertible into one share of Company Common Stock. Part 2.4(b) of the Company
Schedules lists all consents, waivers and approvals under any of the Company's
or any of its subsidiaries' agreements, contracts, licenses or leases required
to be obtained in connection with the consummation of the transactions
contemplated hereby, which, if individually or in the aggregate not obtained,
would result in a material loss of benefits to the Company, Parent or the
Surviving Corporation as a result of the Merger.
(b) No consent, approval, order or authorization of, or
registration, declaration or filing with any court, administrative agency or
commission or other governmental authority or instrumentality, foreign or
domestic ("GOVERNMENTAL ENTITY"), is required to be obtained or made by the
Company in connection with the execution and delivery of this Agreement and the
Stock Option Agreement or the consummation of the Merger, except for (i) the
filing of the Certificate of Merger with the Secretary of State of the State of
Delaware and appropriate documents with the relevant authorities of other states
in which the Company is qualified to do business, (ii) the filing of the
Prospectus/Proxy Statement (as defined in Section 2.18) and a Schedule 13D with
regard to the Parent Voting Agreements with the Securities and Exchange
Commission ("SEC") in accordance with the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT") and the effectiveness of the Registration Statement
(as defined in Section 2.18), (iii) such consents, approvals, orders,
authorizations, registrations, declarations and filings as may be required under
applicable federal, foreign and state securities (or related) laws and the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
ACT"), and the securities or antitrust laws of any foreign country, and (iv)
such other consents, authorizations, filings, approvals and registrations which
if not obtained or made would not be material to the Company or Parent or have a
material adverse effect on the ability of the parties hereto to consummate the
Merger.
2.5 SEC Filings; Company Financial Statements.
(a) The Company has filed all forms, reports and documents
required to be filed by the Company with the SEC since January 1, 1997 and has
made available to Parent such forms, reports and documents in the form filed
with the SEC. All such required forms, reports and documents (including those
that the Company may file subsequent to the date hereof), as amended, are
referred to herein as the "COMPANY SEC REPORTS." As of their respective dates,
the Company SEC Reports (i) were prepared in accordance and complied in all
material respects with the requirements of the Securities Act of 1933, as
amended (the "SECURITIES ACT"), or the Exchange Act, as the case may be, and the
rules and regulations of the SEC thereunder applicable to such Company SEC
Reports and (ii) did not at the time they were filed contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
<PAGE> 13
except to the extent corrected prior to the date hereof by a subsequently filed
Company SEC Report. None of the Company's subsidiaries is required to file any
forms, reports or other documents with the SEC.
(b) Each of the consolidated financial statements (including,
in each case, any related notes thereto) contained in the Company SEC Reports
(the "COMPANY FINANCIALS"), including each Company SEC Report filed after the
date hereof until the Closing, (i) complied as to form in all material respects
with the published rules and regulations of the SEC with respect thereto, (ii)
was prepared in accordance with United States generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the periods
involved (except as may be indicated in the notes thereto or, in the case of
unaudited interim financial statements, as may be permitted by the SEC on Form
10-Q, 8-K or any successor form under the Exchange Act) and (iii) fairly
presented in all material respects the consolidated financial position of the
Company and its consolidated subsidiaries as at the respective dates thereof and
the consolidated results of the Company's operations and cash flows for the
periods indicated, except that the unaudited interim financial statements may
not contain footnotes and were or are subject to normal and recurring year-end
adjustments. The balance sheet of the Company contained in the Company SEC
Reports as of September 30, 1998 is hereinafter referred to as the "COMPANY
BALANCE SHEET." Except as disclosed in the Company Financials, since the date of
the Company Balance Sheet neither the Company nor any of its subsidiaries has
any liabilities required under GAAP to be set forth on a consolidated balance
sheet (absolute, accrued, contingent or otherwise) which are, individually or in
the aggregate, material to the business, results of operations or financial
condition of the Company and its subsidiaries taken as a whole, except for
liabilities incurred since the date of the Company Balance Sheet in the ordinary
course of business consistent with past practices and liabilities incurred
pursuant to this Agreement.
(c) the Company has heretofore furnished to Parent a complete
and correct copy of any amendments or modifications, which have not yet been
filed with the SEC but which are required to be filed, to agreements, documents
or other instruments which previously had been filed by the Company with the SEC
pursuant to the Securities Act or the Exchange Act.
2.6 Absence of Certain Changes or Events. Since the date of the
Company Balance Sheet there has not been: (i) any Material Adverse Effect on the
Company, (ii) any declaration, setting aside or payment of any dividend on, or
other distribution (whether in cash, stock or property) in respect of, any of
the Company's or any of its subsidiaries' capital stock, or any purchase,
redemption or other acquisition by the Company or any of its subsidiaries of any
of the Company's capital stock or any other securities of the Company or its
subsidiaries or any options, warrants, calls or rights to acquire any such
shares or other securities except for repurchases from employees following their
termination pursuant to the terms of their pre-existing stock option or purchase
agreements, (iii) any split, combination or reclassification of any of the
Company's or any of its subsidiaries' capital stock, (iv) any granting by the
Company or any of its subsidiaries of any increase in compensation or fringe
benefits, except for normal increases of cash compensation in the ordinary
course of business
<PAGE> 14
consistent with past practice, or any payment by the Company or any of its
subsidiaries of any bonus, except for bonuses made in the ordinary course of
business consistent with past practice, or any granting by the Company or any of
its subsidiaries of any increase in severance or termination pay or any entry by
the Company or any of its subsidiaries into any currently effective employment,
severance, termination or indemnification agreement or any agreement the
benefits of which are contingent or the terms of which are materially altered
upon the occurrence of a transaction involving the Company of the nature
contemplated hereby, (v) entry by the Company or any of its subsidiaries into
any licensing or other agreement with regard to the acquisition or disposition
of any material Intellectual Property (as defined in Section 2.9) other than
licenses, distribution agreements, advertising agreements, sponsorship
agreements or merchant program agreements entered into in the ordinary course of
business consistent with past practice (collectively, "ORDINARY COURSE
AGREEMENTS"), (vi) any amendment or consent with respect to any licensing
agreement filed or required to be filed by the Company with the SEC, (vii) any
material change by the Company in its accounting methods, principles or
practices, except as required by concurrent changes in GAAP, or (viii) any
material revaluation by the Company of any of its assets, including, without
limitation, writing down the value of capitalized inventory or writing off notes
or accounts receivable other than in the ordinary course of business.
2.7 Taxes.
(a) Definition of Taxes. For the purposes of this Agreement,
"TAX" or "TAXES" refers to any and all federal, state, local and foreign taxes,
assessments and other governmental charges, duties, impositions and liabilities
relating to taxes, including taxes based upon or measured by gross receipts,
income, profits, sales, use and occupation, and value added, ad valorem,
transfer, franchise, withholding, payroll, recapture, employment, excise and
property taxes, together with all interest, penalties and additions imposed with
respect to such amounts and any obligations under any agreements or arrangements
with any other person with respect to such amounts and including any liability
for taxes of a predecessor entity.
(b) Tax Returns and Audits.
(i) The Company and each of its subsidiaries have
timely filed all federal, state, local and foreign returns, estimates,
information statements and reports ("RETURNS") relating to Taxes required to be
filed by the Company and each of its subsidiaries with any Tax authority, except
such Returns which are not material to the Company. The Company and each of its
subsidiaries have paid all Taxes shown to be due on such Returns.
(ii) The Company and each of its subsidiaries as of
the Effective Time will have withheld with respect to its employees all federal
and state income taxes, Taxes pursuant to the Federal Insurance Contribution Act
("FICA"), Taxes pursuant to the Federal Unemployment Tax Act ("FUTA") and other
Taxes required to be withheld, except such Taxes which are not material to the
Company.
<PAGE> 15
(iii) Neither the Company nor any of its subsidiaries
has been delinquent in the payment of any material Tax nor is there any material
Tax deficiency outstanding, proposed or assessed against the Company or any of
its subsidiaries, nor has the Company or any of its subsidiaries executed any
unexpired waiver of any statute of limitations on or extending the period for
the assessment or collection of any Tax.
(iv) No audit or other examination of any Return of
the Company or any of its subsidiaries by any Tax authority is presently in
progress, nor has the Company or any of its subsidiaries been notified of any
request for such an audit or other examination.
(v) No adjustment relating to any Returns filed by
the Company or any of its subsidiaries has been proposed in writing formally or
informally by any Tax authority to the Company or any of its subsidiaries or any
representative thereof.
(vi) Neither the Company nor any of its subsidiaries
has any liability for any material unpaid Taxes which has not been accrued for
or reserved on the Company Balance Sheet in accordance with GAAP, whether
asserted or unasserted, contingent or otherwise, which is material to the
Company, other than any liability for unpaid Taxes that may have accrued since
the date of the Company Balance Sheet in connection with the operation of the
business of the Company and its subsidiaries in the ordinary course.
(vii) There is no contract, agreement, plan or
arrangement to which the Company or any of its subsidiaries is a party as of the
date of this Agreement, including but not limited to the provisions of this
Agreement, covering any employee or former employee of the Company or any of its
subsidiaries that, individually or collectively, would reasonably be expected to
give rise to the payment of any amount that would not be deductible pursuant to
Sections 280G, 404 or 162(m) of the Code. There is no contract, agreement, plan
or arrangement to which the Company is a party or by which it is bound to
compensate any individual for excise taxes paid pursuant to Section 4999 of the
Code.
(viii) Neither the Company nor any of its
subsidiaries has filed any consent agreement under Section 341(f) of the Code or
agreed to have Section 341(f)(2) of the Code apply to any disposition of a
subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by the
Company or any of its subsidiaries.
(ix) Neither the Company nor any of its subsidiaries
is party to or has any obligation under any tax-sharing, tax indemnity or tax
allocation agreement or arrangement.
(x) None of the Company's or its subsidiaries' assets
are tax exempt use property within the meaning of Section 168(h) of the Code.
<PAGE> 16
2.8 Title to Properties; Absence of Liens and Encumbrances.
(a) Part 2.8(a) of the Company Schedules lists the real
property interests owned by the Company and its subsidiaries as of the date of
this Agreement. Part 2.8(a)(i) of the Company Schedules lists all real property
leases to which the Company or any of its subsidiaries is a party as of the date
of this Agreement and each amendment thereto that is in effect as of the date of
this Agreement that provide for annual payments in excess of $250,000. All such
current leases are in full force and effect, are valid and effective in
accordance with their respective terms, and there is not, under any of such
leases, any existing default or event of default (or event which with notice or
lapse of time, or both, would constitute a default) that would give rise to a
material claim. Other than the leaseholds created under the real property leases
identified in Part 2.8(a)(i) of the Company Schedules, the Company and its
subsidiaries own no interest in real property.
(b) The Company and each of its subsidiaries has good and
valid title to, or, in the case of leased properties and assets, valid leasehold
interests in, all of its tangible properties and assets, real, personal and
mixed, used or held for use in its business, free and clear of any liens,
pledges, charges, claims, security interests or other encumbrances of any sort
except for liens imposed by law in respect of obligations not yet due which are
owed in respect of taxes or which otherwise are owed to carriers,
warehousepersons or laborers ("LIENS"), except as reflected in the Company
Financials and except for such Liens or other imperfections of title and
encumbrances, if any, which are not material in character, amount or extent, and
which do not materially detract from the value, or materially interfere with the
present use, of the property subject thereto or affected thereby.
2.9 Intellectual Property. For the purposes of this Agreement, the
following terms have the following definitions:
"INTELLECTUAL PROPERTY" shall mean any or all of the following
and all rights in, arising out of, or associated therewith:
(i) all United States, international and foreign patents and
applications therefor and all reissues, divisions, renewals,
extensions, provisionals, continuations and
continuations-in-part thereof; (ii) all inventions (whether
patentable or not), invention disclosures, improvements, trade
secrets, proprietary information, know how, technology,
technical data and customer lists, and all documentation
relating to any of the foregoing; (iii) all copyrights,
copyrights registrations and applications therefor, and all
other rights corresponding thereto throughout the world; (iv)
all industrial designs and any registrations and applications
therefor throughout the world; (v) all trade names, logos,
URLs, common law trademarks and service marks, trademark and
service mark registrations and applications therefor
throughout the world (collectively, "TRADEMARKS"); (vi) all
databases and data collections and all rights therein
throughout the world, including User Data (as defined below);
(vii) all moral and economic rights of authors and inventors,
however denominated, throughout the world, and (viii) any
similar or equivalent rights to any of the foregoing anywhere
in the world.
<PAGE> 17
"COMPANY INTELLECTUAL PROPERTY" shall mean any Intellectual
Property that is owned by, or exclusively licensed to, the
Company or any of its subsidiaries.
"REGISTERED INTELLECTUAL PROPERTY" means all United States,
international and foreign: (i) patents and patent applications
(including provisional applications); (ii) registered
trademarks, applications to register trademarks, intent-to-use
applications, or other registrations or applications related
to trademarks; (iii) registered copyrights and applications
for copyright registration; and (iv) any other Intellectual
Property that is the subject of an application, certificate,
filing, registration or other document issued, filed with, or
recorded by any state, government or other public legal
authority.
"COMPANY REGISTERED INTELLECTUAL PROPERTY" means all of the
Registered Intellectual Property owned by, or filed in the
name of, the Company or any of its subsidiaries.
"USER DATA" means known, assumed or inferred information or
attributes about a user or subscriber.
(a) No material Company Intellectual Property or product or
service of the Company is subject to any proceeding or outstanding decree,
order, judgment, agreement, or stipulation restricting in any manner the use,
transfer, or licensing thereof by the Company, or which may affect the validity,
use or enforceability of such Company Intellectual Property, except for
restrictions on User Data included in published privacy policies of Company or
any of its subsidiaries.
(b) Each material item of Company Registered Intellectual
Property is valid and subsisting, all necessary registration, maintenance and
renewal fees currently due in connection with such Registered Intellectual
Property have been made and all necessary documents, recordations and
certificates in connection with such Registered Intellectual Property have been
filed with the relevant patent, copyright, trademark or other authorities in the
United States or foreign jurisdictions, as the case may be, for the purposes of
maintaining such Registered Intellectual Property.
(c) The Company or one of its subsidiaries owns and has good
and exclusive title to, or has joint ownership or license (sufficient for the
conduct of its business as currently conducted) to, each material item of
Company Intellectual Property free and clear of any material lien or encumbrance
(excluding licenses and related restrictions); and the Company is the exclusive
owner of all material Trademarks used in connection with the operation or
conduct of the business of the Company, including the sale of any products or
the provision of any services by the Company.
(d) The Company or one of its subsidiaries owns exclusively,
and has good title to, all material copyrighted works that are Company products
or which the Company or any of its subsidiaries otherwise expressly purports to
own.
<PAGE> 18
(e) To the extent that any material Intellectual Property has
been developed or created by a third party for the Company or any of its
subsidiaries, the Company or one of its subsidiaries has a written agreement
with such third party with respect thereto and the Company or such subsidiary
thereby either (i) has obtained ownership of, and is the exclusive owner of, or
(ii) has obtained a license (sufficient for the conduct of its business as
currently conducted) to all such third party's Intellectual Property in such
work, material or invention by operation of law or by valid assignment or
license, to the fullest extent it is legally possible to do so.
(f) Neither the Company nor any of its subsidiaries has
transferred ownership of, or granted any exclusive license with respect to, any
Intellectual Property that is or was material to the Company Intellectual
Property, to any third party.
(g) The Company Schedules list all material contracts,
licenses and agreements to which the Company or any of its subsidiaries is a
party (i) with respect to Company Intellectual Property licensed or transferred
to any third party (other than Ordinary Course Agreements); or (ii) pursuant to
which a third party has licensed or transferred any material Intellectual
Property to the Company or any of its subsidiaries.
(h) To the knowledge of the Company, all material contracts,
licenses and agreements relating to the Company Intellectual Property are in
full force and effect. The consummation of the transactions contemplated by this
Agreement will neither violate nor result in the breach, modification,
cancellation, termination, or suspension of such contracts, licenses and
agreements. The Company and each of its subsidiaries is in material compliance
with, and has not materially breached any term of any such contracts, licenses
and agreements and, to the knowledge of the Company, all other parties to such
contracts, licenses and agreements are in compliance with, and have not
materially breached any term of, such contracts, licenses and agreements.
Following the Closing Date, the Surviving Corporation will be permitted to
exercise all of the Company's rights under such contracts, licenses and
agreements to the same extent the Company would have been able to had the
transactions contemplated by this Agreement not occurred and without the payment
of any additional amounts or consideration other than ongoing fees, royalties or
payments which the Company would otherwise be required to pay.
(i) The operation of the business of the Company as such
business currently is conducted, including the Company's design, development,
marketing and sale of the products or services of the Company (including with
respect to products currently under development) has not, does not and will not
infringe or misappropriate the Intellectual Property of any third party or
constitute unfair competition or trade practices under the laws of any
jurisdiction, except with respect to the use, licensing and sale of User Data,
which use, licensing or sale, to the knowledge of the Company, will not violate
the Intellectual Property rights or any United States privacy or similar United
States right of any third party or constitute unfair competition or trade
practices under the laws of any jurisdiction.
<PAGE> 19
(j) The Company has not received notice from any third party
that the operation of the business of the Company or any act, product or service
of the Company, infringes or misappropriates the Intellectual Property of any
third party or constitutes unfair competition or trade practices under the laws
of any jurisdiction.
(k) To the knowledge of the Company, no person has or is
infringing or misappropriating any material Company Intellectual Property.
(l) The Company has taken reasonable steps to protect the
Company's rights in the Company's confidential information and trade secrets
that it wishes to protect or any trade secrets or confidential information of
third parties provided to the Company, and, without limiting the foregoing, the
Company has and enforces a policy requiring each employee and contractor to
execute a proprietary information/confidentiality agreement substantially in the
form provided to Parent and all current and former employees and contractors of
the Company and its subsidiaries have executed such an agreement, except where
the failure to do so is not reasonably expected to be material to the Company.
2.10 Compliance; Permits; Restrictions.
(a) Neither the Company nor any of its subsidiaries is, in any
material respect, in conflict with, or in default or in violation of (i) to the
knowledge of the Company, any law, rule, regulation, order, judgment or decree
applicable to the Company or any of its subsidiaries or by which the Company or
any of its subsidiaries or any of their respective businesses or properties is,
or the Company believes is reasonably likely to be, bound or affected, or (ii)
any material note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries or its or any of their respective properties is bound or
affected, except for conflicts, violations and defaults that (individually or in
the aggregate) would not cause the Company to lose any material benefit or incur
any material liability. No investigation or review by any Governmental Entity is
pending or, to the Company's knowledge, has been threatened in a writing
delivered to the Company, against the Company or any of its subsidiaries, nor,
to the Company's knowledge, has any Governmental Entity indicated an intention
to conduct an investigation of the Company or any of its subsidiaries. There is
no material agreement, judgment, injunction, order or decree binding upon the
Company or any of its subsidiaries which has or could reasonably be expected to
have the effect of prohibiting or materially impairing any business practice of
the Company or any of its subsidiaries, any acquisition of material property by
the Company or any of its subsidiaries or the conduct of business by the Company
as currently conducted.
(b) The Company and its subsidiaries hold, to the extent
legally required, all permits, licenses, variances, exemptions, orders and
approvals from Governmental Entities that are material to and required for the
operation of the business of the Company as currently conducted (collectively,
the "COMPANY PERMITS"). The Company and its subsidiaries are in compliance in
all
<PAGE> 20
material respects with the terms of the Company Permits, except where the
failure to be in compliance with the terms of the Company Permits would not be
material to the Company.
2.11 Litigation. Except as disclosed in Part 2.11 of the Company
Schedules, there are no claims, suits, actions or proceedings pending or, to the
knowledge of the Company, threatened against the Company or any of its
subsidiaries, before any court, governmental department, commission, agency,
instrumentality or authority, or any arbitrator that seeks to restrain or enjoin
the consummation of the transactions contemplated by this Agreement or which
could reasonably be expected, either singularly or in the aggregate with all
such claims, actions or proceedings, to be material to the Company. No
Governmental Entity has at any time challenged or questioned in a writing
delivered to the Company the legal right of the Company to design, manufacture,
offer or sell any of its products or services in the present manner or style
thereof. As of the date hereof, to the knowledge of the Company, no event has
occurred, and no claim, dispute or other condition or circumstance exists, that
will, or that would reasonably be expected to, cause or provide a bona fide
basis for a director or executive officer of the Company to seek indemnification
from the Company.
Except as disclosed in Part 2.11 of the Company Schedules, the Company
has never been subject to an audit, compliance review, investigation or like
contract review by the GSA office of the Inspector General or other Governmental
Entity or agent thereof in connection with any government contract (a
"GOVERNMENT AUDIT"), to the Company's knowledge no Government Audit is
threatened or reasonably anticipated, and in the event of such Government Audit,
to the knowledge of the Company no basis exists for a finding of noncompliance
with any material provision of any government contract or a refund of any
amounts paid or owed by any Governmental Entity pursuant to such government
contract. For each item disclosed in the Company Schedule pursuant to this
Section 2.11 a true and complete copy of all correspondence and documentation
with respect thereto has been provided to Parent.
2.12 Brokers' and Finders' Fees. Except for fees payable to BancBoston
Robertson Stephens Inc. pursuant to an engagement letter dated January 8, 1999,
the material terms of which (other than certain terms relating to fees payable
upon the consummation of possible transactions between the Company and parties
other than Parent, none of which fees are due or payable) are set forth on Part
2.12 of the Company Schedules, the Company has not incurred, nor will it incur,
directly or indirectly, any liability for brokerage or finders' fees or agents'
commissions or any similar charges in connection with this Agreement or any
transaction contemplated hereby.
2.13 Transactions with Affiliates. Except as set forth in the Company
SEC Reports, since the date of the Company's last proxy statement filed with the
SEC, no event has occurred as of the date of this Agreement that would be
required to be reported by the Company pursuant to Item 404 of Regulation S-K
promulgated by the SEC. Part 2.13 of the Company Schedules identifies each
person who is an "affiliate" (as that term is used in Rule 145 promulgated under
the Securities Act) of the Company as of the date of this Agreement.
<PAGE> 21
2.14 Employee Benefit Plans.
(a) Definitions. With the exception of the definition of
"Affiliate" set forth in Section 2.14(a)(i) below (which definition shall apply
only to this Section 2.14), for purposes of this Agreement, the following terms
shall have the meanings set forth below:
(i) "AFFILIATE" shall mean any other person or entity
under common control with the Company within the meaning of Section 414(b), (c),
(m) or (o) of the Code and the regulations issued thereunder;
(ii) "COMPANY EMPLOYEE PLAN" shall mean any plan,
program, policy, practice, contract, agreement or other arrangement providing
for compensation, severance, termination pay, performance awards, stock or
stock-related awards, fringe benefits or other employee benefits or remuneration
of any kind, whether written or unwritten or otherwise, funded or unfunded,
including without limitation, each "employee benefit plan," within the meaning
of Section 3(3) of ERISA which is or has been maintained, contributed to, or
required to be contributed to, by the Company or any Affiliate for the benefit
of any Employee
(iii) "COBRA" shall mean the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended
(iv) "DOL" shall mean the Department of Labor;
(v) "EMPLOYEE" shall mean any current, former, or
retired employee, officer, or director of the Company or any Affiliate;
(vi) "EMPLOYEE AGREEMENT" shall mean each management,
employment, severance, consulting, relocation, repatriation, expatriation,
visas, work permit or similar agreement or contract currently in force between
the Company or any Affiliate and any Employee or consultant which pertains to a
service provider who has or will receive payments from the Company in excess of
$150,000 in any calendar year;
(vii) "ERISA" shall mean the Employee Retirement
Income Security Act of 1974, as amended;
(viii) "FMLA" shall mean the Family Medical Leave Act
of 1993, as amended;
(ix) "INTERNATIONAL EMPLOYEE PLAN" shall mean each
Company Employee Plan that has been adopted or maintained by the Company,
whether informally or formally, for the benefit of Employees outside the United
States;
<PAGE> 22
(x) "IRS" shall mean the Internal Revenue Service;
(xi) "MULTIEMPLOYER PLAN" shall mean any "Pension
Plan" (as defined below) which is a "multiemployer plan," as defined in Section
3(37) of ERISA;
(xii) "PBGC" shall mean the Pension Benefit Guaranty
Corporation; and
(xiii) "PENSION PLAN" shall mean each Company
Employee Plan which is an "employee pension benefit plan," within the meaning of
Section 3(2) of ERISA.
(b) Schedule. Part 2.14(b) of the Company Schedules contain an
accurate and complete list of each Company Employee Plan and each Employee
Agreement. The Company does not have any plan or commitment to establish any new
Company Employee Plan, to modify any Company Employee Plan or Employee Agreement
(except to the extent required by law or to conform any such Company Employee
Plan or Employee Agreement to the requirements of any applicable law, in each
case as previously disclosed to Parent in writing, or as required by this
Agreement), or to enter into any Company Employee Plan or Employee Agreement,
nor does it have any intention or commitment to do any of the foregoing.
(c) Documents. The Company has provided, or will provide as
soon as practicable following the execution of this Agreement, to Parent: (i)
correct and complete copies of all documents embodying to each Company Employee
Plan and each Employee Agreement including all amendments thereto; (ii) the most
recent annual actuarial valuations, if any, prepared for each Company Employee
Plan; (iii) the three (3) most recent annual reports (Form Series 5500 and all
schedules and financial statements attached thereto), if any, required under
ERISA or the Code in connection with each Company Employee Plan or related
trust; (iv) if the Company Employee Plan is funded, the most recent annual and
periodic accounting of Company Employee Plan assets; (v) the most recent summary
plan description together with the summary of material modifications thereto, if
any, required under ERISA with respect to each Company Employee Plan; (vi) all
IRS determination, opinion, notification and advisory letters, and rulings
relating to Company Employee Plans and copies of all applications and
correspondence to or from the IRS or the DOL with respect to an examination,
audit or submission under the Voluntary Compliance Resolution Program or Closing
Agreement Program of any Company Employee Plan; (vii) all material written
agreements and contracts relating to each Company Employee Plan, including, but
not limited to, administrative service agreements, group annuity contracts and
group insurance contracts; (viii) all communications material to any Employee or
Employees relating to any Company Employee Plan and any proposed Company
Employee Plans, in each case, relating to any amendments, terminations,
establishments, increases or decreases in benefits, acceleration of payments or
vesting schedules or other events any of which would result in any material
liability to the Company; and (ix) all registration statements and current
prospectuses prepared in connection with each Company Employee Plan.
(d) Employee Plan Compliance. (i) The Company has performed in
all material
<PAGE> 23
respects all obligations required to be performed by it under, is not in default
or violation of, and has no knowledge of any default or violation by any other
party to each Company Employee Plan, and each Company Employee Plan has been
established and maintained in all material respects in accordance with its terms
and in compliance with all applicable laws, statutes, orders, rules and
regulations, including but not limited to ERISA or the Code; (ii) each Company
Employee Plan intended to qualify under Section 401(a) of the Code and each
trust intended to qualify under Section 501(a) of the Code is set forth on a
standardized prototype plan or has either received a favorable determination
letter from the IRS with respect to each such Plan as to its qualified status
under the Code, including all amendments to the Code effected by the Tax Reform
Act of 1986 and subsequent legislation, or has remaining a period of time under
applicable Treasury regulations or IRS pronouncements in which to apply for such
a determination letter and make any amendments necessary to obtain a favorable
determination; (iii) no "prohibited transaction," within the meaning of Section
4975 of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt
under Section 408 of ERISA, has occurred with respect to any Company Employee
Plan; (iv) there are no actions, suits or claims pending, or, to the knowledge
of the Company, threatened or reasonably anticipated (other than routine claims
for benefits) against any Company Employee Plan or against the assets of any
Company Employee Plan; (v) each Company Employee Plan can be amended, terminated
or otherwise discontinued after the Effective Time in accordance with its terms,
without liability to Parent, the Company or any of its Affiliates (other than
ordinary administration expenses typically incurred in a termination event);
(vi) there are no audits, inquiries or proceedings pending or, to the knowledge
of the Company or any Affiliates, threatened by the IRS or DOL with respect to
any Company Employee Plan; and (vii) neither the Company nor any Affiliate is
subject to any penalty or tax with respect to any Company Employee Plan under
Section 402(i) of ERISA or Sections 4975 through 4980 of the Code.
(e) Pension Plans. The Company does not now, nor has it ever,
maintained, established, sponsored, participated in, or contributed to, any
Pension Plan which is subject to Title IV of ERISA or Section 412 of the Code.
(f) Multiemployer Plans. At no time has the Company
contributed to or been requested to contribute to any Multiemployer Plan.
(g) No Post-Employment Obligations. No Company Employee Plan
provides, or has any liability to provide, retiree life insurance, retiree
health or other retiree employee welfare benefits to any person for any reason,
except as may be required by COBRA or other applicable statute, and the Company
has never represented, promised or contracted (whether in oral or written form)
to any Employee (either individually or to Employees as a group) or any other
person that such Employee(s) or other person would be provided with retiree life
insurance, retiree health or other retiree employee welfare benefit, except to
the extent required by statute.
(h) Neither the Company nor any Affiliate has, prior to the
Effective Time, and in any material respect, violated the health care
continuation requirements of COBRA, the requirements of FMLA or any similar
provisions of state law applicable to its Employees.
<PAGE> 24
(i) Effect of Transaction The execution of this Agreement and
the consummation of the transactions contemplated hereby will not (either alone
or upon the occurrence of any additional or subsequent events) constitute an
event under any Company Employee Plan, Employee Agreement, trust or loan that
will or may result in any payment (whether of severance pay or other wise),
acceleration, forgiveness of indebtedness, vesting, distribution, increase in
benefits or obligation to fund benefits with respect to any Employee.
(j) Employment Matters. The Company and each of its
subsidiaries: (i) is in compliance in all material respects with all applicable
foreign, federal, state and local laws, rules and regulations respecting
employment, employment practices, terms and conditions of employment and wages
and hours, in each case, with respect to Employees; (ii) has withheld all
amounts required by law or by agreement to be withheld from the wages, salaries
and other payments to Employees; (iii) to the Company's knowledge, is not liable
for any arrears of wages or any taxes or any penalty for failure to comply with
any of the foregoing; and (iv) is not liable for any material payment to any
trust or other fund or to any governmental or administrative authority, with
respect to unemployment compensation benefits, social security or other benefits
or obligations for Employees (other than routine payments to be made in the
normal course of business and consistent with past practice). There are no
pending or threatened claims or actions against the Company or any of its
subsidiaries under any worker's compensation policy or long-term disability
policy. To the Company's knowledge, no employee of the Company has violated in
any material respect any employment contract, nondisclosure agreement or
noncompetition agreement by which such employee is bound due to such employee
being employed by the Company and disclosing to the Company or using trade
secrets or proprietary information of any other person or entity.
(k) Labor. No general work stoppage or labor strike against
the Company is pending or, to the knowledge of the Company, threatened. To the
knowledge of the Company, there are no activities or proceedings of any labor
union to organize any Employees. There are no material actions, suits, claims,
labor disputes or grievances pending, or, to the knowledge of the Company,
threatened or reasonably anticipated relating to any labor, safety or
discrimination matters involving any Employee, including, without limitation,
charges of unfair labor practices or discrimination complaints, which, if
adversely determined, would, individually or in the aggregate, result in any
material liability to the Company. To the knowledge of the Company, neither the
Company nor any of its subsidiaries has engaged in any unfair labor practices
within the meaning of the National Labor Relations Act. The Company and its
subsidiaries are not presently, nor have any of them been in the past, a party
to, or bound by, any collective bargaining agreement or union contract with
respect to Employees and no collective bargaining agreement is being negotiated
by the Company or any of its subsidiaries.
(l) International Employee Plan. Each International Employee
Plan has been established, maintained and administered in material compliance
with its terms and conditions and with the requirements prescribed by all
material statutory or regulatory laws that are applicable to
<PAGE> 25
such International Employee Plan. Furthermore, no International Employee Plan
has unfunded liabilities, that as of the Effective Time, will not be offset by
insurance or fully accrued. Except as required by law, no condition exists that
would prevent the Company or Parent from terminating or amending any
International Employee Plan at any time for any reason.
2.15 Environmental Matters.
(a) Hazardous Material. Except as would not result in material
liability to the Company, no underground storage tanks and no amount of any
substance that has been designated by any Governmental Entity or by applicable
federal, state or local law to be radioactive, toxic, hazardous or otherwise a
danger to health or the environment, including, without limitation, PCBs,
asbestos, petroleum, urea-formaldehyde and all substances listed as hazardous
substances pursuant to the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended, or defined as a hazardous waste pursuant
to the United States Resource Conservation and Recovery Act of 1976, as amended,
and the regulations promulgated pursuant to said laws, but excluding office and
janitorial supplies, (a "HAZARDOUS MATERIAL") are present, as a result of the
actions of the Company or any of its subsidiaries or any affiliate of the
Company, or, to the Company's knowledge, as a result of any actions of any third
party or otherwise, in, on or under any property, including the land and the
improvements, ground water and surface water thereof, that the Company or any of
its subsidiaries has at any time owned, operated, occupied or leased.
(b) Hazardous Materials Activities. Except as would not result
in a material liability to the Company (in any individual case or in the
aggregate) (i) neither the Company nor any of its subsidiaries has transported,
stored, used, manufactured, disposed of, released or exposed its employees or
others to Hazardous Materials in violation of any law in effect on or before the
Closing Date, and (ii) neither the Company nor any of its subsidiaries has
disposed of, transported, sold, used, released, exposed its employees or others
to or manufactured any product containing a Hazardous Material (collectively
"HAZARDOUS MATERIALS ACTIVITIES") in violation of any rule, regulation, treaty
or statute promulgated by any Governmental Entity in effect prior to or as of
the date hereof to prohibit, regulate or control Hazardous Materials or any
Hazardous Material Activity.
(c) Permits. The Company and its subsidiaries currently hold
all environmental approvals, permits, licenses, clearances and consents (the
"COMPANY ENVIRONMENTAL PERMITS") necessary for the conduct of the Company's and
its subsidiaries' Hazardous Material Activities and other businesses of the
Company and its subsidiaries as such activities and businesses are currently
being conducted.
(d) Environmental Liabilities. No action, proceeding,
revocation proceeding, amendment procedure, writ or injunction is pending, and
to the Company's knowledge, no action, proceeding, revocation proceeding,
amendment procedure, writ or injunction has been threatened by any Governmental
Entity against the Company or any of its subsidiaries in a writing delivered to
the Company concerning any Company Environmental Permit, Hazardous Material or
any Hazardous
<PAGE> 26
Materials Activity of the Company or any of its subsidiaries.
2.16 Agreements, Contracts and Commitments. Except as otherwise set
forth in Part 2.16 of the Company Schedules, as of the date hereof neither the
Company nor any of its subsidiaries is a party to or is bound by:
(a) any employment or consulting agreement, contract or
commitment with any officer or director or higher level employee or member of
the Company's Board of Directors, other than those that are terminable by the
Company or any of its subsidiaries on no more than thirty days notice without
liability or financial obligation, except to the extent general principles of
wrongful termination law may limit the Company's or any of its subsidiaries'
ability to terminate employees at will;
(b) any agreement, contract or commitment containing any
covenant materially limiting the right of the Company or any of its subsidiaries
to engage in any line of business or to compete with any person or granting any
exclusive distribution rights;
(c) any agreement, contract or commitment currently in force
relating to the disposition or acquisition by the Company or any of its
subsidiaries after the date of this Agreement of a material amount of assets not
in the ordinary course of business or pursuant to which the Company or any of
its subsidiaries has any material ownership interest in any corporation,
partnership, joint venture or other business enterprise other than the Company's
subsidiaries that is material to the Company's business as currently conducted;
(d) any agreement, contract or commitment currently in force
to provide source code to any third party for any product or technology that is
material to the Company and its subsidiaries taken as a whole; or
Neither the Company nor any of its subsidiaries, nor to the Company's
knowledge any other party to a Company Contract (as defined below), is in
breach, violation or default under, and neither the Company nor any of its
subsidiaries has received written notice that it has breached, violated or
defaulted under, any of the material terms or conditions of any of the
agreements, contracts or commitments to which the Company or any of its
subsidiaries is a party or by which it is bound that are required to be
disclosed in the Company Schedules pursuant to clauses (a) through (d) above or
pursuant to Section 2.9 hereof or are required to be filed with any Company SEC
Report (any such agreement, contract or commitment, a "COMPANY CONTRACT") in
such a manner as would permit any other party to cancel or terminate any such
Company Contract, or would permit any other party to seek material damages or
other remedies (for any or all of such breaches, violations or defaults, in the
aggregate).
2.17 Change of Control Payments. Part 2.17 of the Company Schedules
sets forth each plan or agreement pursuant to which any amounts may become
payable (whether currently or in the future) to current or former employees and
directors of the Company or any of its subsidiaries as a
<PAGE> 27
result of or in connection with the Merger.
2.18 Disclosure. None of the information supplied or to be supplied by
or on behalf of the Company for inclusion or incorporation by reference in the
registration statement on Form S-4 (or similar successor form) to be filed with
the SEC by Parent in connection with the issuance of Parent Common Stock in the
Merger (including amendments or supplements thereto) (the "REGISTRATION
STATEMENT") will, at the time the Registration Statement becomes effective under
the Securities Act, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
are made, not misleading, except that no representation or warranty is made by
the Company with respect to statements made or incorporated by reference therein
about Parent or Merger Sub supplied by Parent for inclusion or incorporation by
reference in the Registration Statement.. None of the information supplied or to
be supplied by or on behalf of the Company for inclusion or incorporation by
reference in the Prospectus/Proxy Statement to be filed with the SEC as part of
the Registration Statement (the "PROSPECTUS/PROXY STATEMENT"), will, at the time
the Prospectus/Proxy Statement is mailed to the stockholders of the Company or
Parent, at the time of the Company Stockholders' Meeting or Parent Stockholders'
Meeting or as of the Effective Time, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading. The Prospectus/Proxy
Statement will comply as to form in all material respects with the provisions of
the Exchange Act and the rules and regulations promulgated by the SEC
thereunder, except that no representation or warranty is made by the Company
with respect to statements made or incorporated by reference therein about
Parent or Merger Sub supplied by Parent for inclusion or incorporation by
reference in the Prospectus/Proxy Statement.
2.19 Board Approval. The Board of Directors of the Company (including
any required committee or subgroup of the Board of Directors of the Company)
has, as of the date of this Agreement, determined (i) that the Merger is fair
to, and in the best interests of the Company and its stockholders, and (ii) to
recommend that the stockholders of the Company approve and adopt this Agreement
and approve the Merger.
2.20 Fairness Opinion. The Company's Board of Directors has received a
written opinion from BankBoston Robertson Stephens Inc., dated as of the date
hereof, to the effect that as of the date hereof, the Exchange Ratio is fair to
the Company's stockholders from a financial point of view and has delivered to
Parent a copy of such opinion.
2.21 Section 203 of the Delaware General Corporation Law and Company
Rights Plan Not Applicable. The Board of Directors of Company has taken all
actions so that (a) the restrictions contained in Section 203 of the Delaware
General Corporation Law applicable to a "business combination" (as defined in
such Section 203) will not apply to the execution, delivery or performance of
this Agreement or the Stock Option Agreement or to the consummation of the
Merger or the other transactions contemplated by this Agreement and the Stock
Option Agreement
<PAGE> 28
and (b) the execution, delivery and performance of this Agreement and the Option
Agreement and the consummation of the Merger will not cause any change, effect
or result under the Company Rights Plan which is adverse to the interests of
Parent. Without limiting the generality of the foregoing, if necessary to
accomplish the foregoing, the Company Rights Plan has been amended to (i) render
the Company Rights Plan inapplicable to the Merger and the other transactions
contemplated by this Agreement, (ii) ensure that (x) none of Parent or its
subsidiaries is an Acquiring Person (as defined in the Company Rights Plan)
pursuant to the Company Rights Plan by virtue of the execution of this Agreement
or the Stock Option Agreement or the consummation of the Merger or the other
transactions contemplated hereby and thereby and (y) a Distribution Date or
Shares Acquisition Date (as such terms are defined in the Company Rights Plan)
does not occur by reason of the execution of this Agreement or the Stock Option
Agreement, the consummation of the Merger, or the consummation of the
transactions contemplated hereby or thereby, and such amendment may not be
further amended by Company without the prior consent of Parent in its sole
discretion.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
As of the date hereof and as of the Closing Date, Parent and Merger Sub
represent and warrant to the Company, subject to the exceptions specifically
disclosed in writing in the disclosure letter supplied by Parent and Merger Sub
to the Company dated as of the date hereof and certified by a duly authorized
officer of Parent (the "PARENT SCHEDULES"), as follows:
3.1 Organization of Parent.
(a) Except as set forth on Part 3.1(a) of the Parent
Schedules, Parent does not own any capital stock of, or any equity interest of
any nature in, any other entity, except for passive investments in equity
interests of public companies as part of the cash management program of Parent.
Neither Parent nor any of its subsidiaries has agreed or is obligated to make,
or is bound by any contract under which contract it may become obligated to
make, any future investment in or capital contribution to any other entity.
Neither Parent nor any of its subsidiaries has, at any time, been a general
partner of any general partnership, limited partnership or other entity.
(b) Parent and each of its subsidiaries (including Merger Sub)
is a corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation and has all necessary corporate
power and authority: (i) to conduct its business in the manner in which its
business is currently being conducted; (ii) to own and use its assets in the
manner in which its assets are currently owned and used; and (iii) to perform
its obligations under all Contracts by which it is bound.
(c) Parent and each of its subsidiaries (including Merger Sub)
is qualified to do business as a foreign corporation, and is in good standing,
under the laws of all jurisdictions where
<PAGE> 29
the nature of its business requires such qualification and where the failure to
so qualify would have a Material Adverse Effect on Parent.
(d) Parent has delivered or made available to the Company a
true and correct copy of the Certificate of Incorporation (including any
Certificate of Designations) and Bylaws of Parent and similar governing
instruments of each of its subsidiaries (including Merger Sub), each as amended
to date (collectively, the "PARENT CHARTER DOCUMENTS"), and each such instrument
is in full force and effect. Parent is not in violation of any of the provisions
of the Parent Charter Documents. None of Parent's subsidiaries (including Merger
Sub) is in violation of any of the provisions of its Articles or Certificate of
Incorporation or Bylaws or other similar governing instruments, except for such
violations as are not material to Parent and its subsidiaries taken as a whole.
(e) Parent has delivered or made available to the Company all
proposed or considered amendments to the Parent Charter Documents.
3.2 Parent Capital Structure.
(a) The authorized capital stock of Parent consists of: (i)
230,277,660 shares of Common Stock, $0.01 par value, of which 200,000,000 shares
have been designated Series A Common Stock, 15,400,000 shares have been
designated Series B Common Stock and 14,877,660 shares have been designated
Series K Common Stock, of which 105,329,712 shares of Series A Common Stock,
15,400,000 shares of Series B Common Stock and 2,609,707 shares of Series K
Common Stock had been issued and were outstanding as of January 15, 1999; and
(ii) 9,650,000 shares of Preferred Stock, $0.01 par value per share, of which no
shares have been issued and are outstanding as of the date of this Agreement.
All of the outstanding shares of Parent's Common Stock and Preferred Stock have
been duly authorized and validly issued, and are fully paid and nonassessable.
(b) As of January 15, 1999: (i) 9,035,138 shares of Parent
Common Stock were subject to issuance pursuant to outstanding options to
purchase Common Stock under Parent's stock option plans; and (ii) 768,055 shares
of Parent Common Stock were reserved for future issuance under Parent's 1997
Employee Stock Purchase Plan (the "PARENT PURCHASE PLAN"). (Stock options
granted by Parent pursuant to Parent's stock option plans are referred to in
this Agreement as "PARENT OPTIONS"). Parent has made available to the Company
accurate and complete copies of all stock option plans pursuant to which Parent
has granted stock options that are currently outstanding and the form of all
stock option agreements evidencing such options. All shares of Parent Common
Stock subject to issuance as aforesaid, upon issuance on the terms and
conditions specified in the instruments pursuant to which they are issuable,
would be duly authorized, validly issued, fully paid and nonassessable.
(c) All outstanding shares of Parent Common Stock, all
outstanding Parent
<PAGE> 30
Options, and all outstanding shares of capital stock of each subsidiary of
Parent have been issued and granted in compliance with (i) all applicable
securities laws and, to Parent's knowledge, all other applicable Legal
Requirements and (ii) all material requirements set forth in applicable
Contracts.
(d) The authorized capital stock of Merger Sub consists of
1000 shares of Common Stock, $0.001 par value, of which 1000 shares have been
issued and are outstanding and held by Parent as of the date of this Agreement.
All of the outstanding shares of Merger Sub's Common Stock have been duly
authorized and validly issued, and are fully paid and nonassessable. There are
no equity securities, partnership interests or similar ownership interests of
any class of Merger Sub equity security, or any securities exchangeable or
convertible into or exercisable for such equity securities, partnership
interests or similar ownership interests, issued, reserved for issuance or
outstanding.
3.3 Obligations With Respect to Capital Stock. Except as set forth in
Part 3.3 of the Parent Schedules, there are no equity securities, partnership
interests or similar ownership interests of any class of Parent equity security,
or any securities exchangeable or convertible into or exercisable for such
equity securities, partnership interests or similar ownership interests, issued,
reserved for issuance or outstanding. Except for securities Parent owns free and
clear of all material claims and Encumbrances, directly or indirectly through
one or more subsidiaries, and except for shares of capital stock or other
similar ownership interests of certain subsidiaries of Parent that are owned by
certain nominee equity holders as required by the applicable law of the
jurisdiction of organization of such subsidiaries (which shares or other
interests do not materially affect Parent's control of such subsidiaries), as of
the date of this Agreement, there are no equity securities, partnership
interests or similar ownership interests of any class of equity security of any
subsidiary of Parent, or any security exchangeable or convertible into or
exercisable for such equity securities, partnership interests or similar
ownership interests, issued, reserved for issuance or outstanding. Except as set
forth in Part 3.3 of the Parent Schedules or Section 3.2 above, there are no
subscriptions, options, warrants, equity securities, partnership interests or
similar ownership interests, calls, rights (including preemptive rights),
commitments or agreements of any character to which Parent or any of its
subsidiaries is a party or by which it is bound obligating Parent or any of its
subsidiaries to issue, deliver or sell, or cause to be issued, delivered or
sold, or repurchase, redeem or otherwise acquire, or cause the repurchase,
redemption or acquisition of, any shares of capital stock, partnership interests
or similar ownership interests of Parent or any of its subsidiaries or
obligating Parent or any of its subsidiaries to grant, extend, accelerate the
vesting of or enter into any such subscription, option, warrant, equity
security, call, right, commitment or agreement. As of the date of this
Agreement, except as contemplated by this Agreement, there are no registration
rights and, except for the Parent Voting Agreement, there is no voting trust,
proxy, rights plan, antitakeover plan or other agreement or understanding to
which Parent is a party or by which it is bound with respect to any equity
security of any class of Parent or with respect to any equity security,
partnership interest or similar ownership interest of any class of any of its
subsidiaries. Stockholders of Parent will not be entitled to dissenters' or
appraisal rights under applicable state law in connection with the Merger.
<PAGE> 31
3.4 Authority; Non-Contravention.
(a) Parent has all requisite corporate power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Parent and Merger Sub (including, in the case of
Merger Sub, all shareholder action by Parent as its sole stockholder), subject
only to the approval of the issuance of the shares of Parent Common Stock
pursuant to the Merger and approval of an amendment to Parent's Certificate of
Incorporation to increase the authorized number of shares of Parent Common Stock
so as to permit the transactions contemplated hereby, subject to and upon
consummation of the Merger, and the filing of the Certificate of Merger pursuant
to Delaware Law. The vote in favor of such issuance and an amendment to Parent's
Certificate of Incorporation by TCI Internet Holdings, Inc. ("TCI") is currently
sufficient, and, to the extent TCI shall not have breached the Parent Voting
Agreement to which it is a party and to the extent such Parent Voting Agreement
shall not have terminated by its terms, will be sufficient at the time of the
Parent Stockholders Meeting, for Parent's stockholders to approve such issuance
and amendment. This Agreement has been duly executed and delivered by Parent and
Merger Sub, and assuming due execution and delivery by the Company, constitute a
valid and binding obligation of Parent and Merger Sub, enforceable against
Parent and Merger Sub in accordance with their respective terms, except as
enforceability may be limited by bankruptcy and other similar laws and general
principles of equity. The execution and delivery of this Agreement by Parent and
Merger Sub do not, and the performance of this Agreement by Parent and Merger
Sub will not, (i) subject to the approval of an amendment to Parent's
Certificate of Incorporation to appropriately increase the authorized number of
shares of Parent Common Stock, conflict with the Parent Charter Documents, (ii)
subject to obtaining the approval by Parent's stockholders of the issuance of
the shares of Parent Common Stock pursuant to the Merger and an amendment to
Parent's Certificate of Incorporation to appropriately increase the authorized
number of shares of Parent Common Stock as contemplated in Section 5.3 and
compliance with the requirements set forth in Section 3.4(b) below, conflict
with or violate any law, rule, regulation, order, judgment or decree applicable
to Parent or any of its subsidiaries or by which Parent or any of its
subsidiaries or any of their respective properties are bound or affected, or
(iii) result in any material breach of or constitute a material default (or an
event that with notice or lapse of time or both would become a material default)
under, or impair Parent's rights or alter the rights or obligations of any third
party under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of a material
Encumbrance on any of the material properties or assets of Parent or any of its
subsidiaries pursuant to, any material note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise, concession, or other
instrument or obligation to which Parent or any of its subsidiaries is a party
or by which Parent or any of its subsidiaries or its or any of their respective
assets are bound or affected. Merger Sub was formed for the purpose of
consummating the Merger and has no material assets or liabilities. Part 2.4(a)
of the Parent Schedules lists all consents, waivers and approvals under any of
the Company's or any of its subsidiaries' agreements, contracts, licenses or
leases required to be obtained in connection with the consummation of the
transactions contemplated
<PAGE> 32
hereby, which, if individually or in the aggregate not obtained, would result in
a material loss of benefits to Parent as a result of the Merger.
(b) No consent, approval, order or authorization of, or
registration, declaration or filing with any Governmental Entity, is required to
be obtained or made by Parent or Merger Sub in connection with the execution and
delivery of this Agreement or the consummation of the Merger, except for (i) the
filing of the Certificate of Merger with the Secretary of State of the State of
Delaware, (ii) the filing of an amendment to Parent's Certificate of
Incorporation to increase the authorized number of shares of Parent Common Stock
so as to permit the transactions contemplated hereby, (iii) the filing of the
Registration Statement and the Prospectus/Proxy Statement and a Schedule 13D
with regard to the Company Voting Agreements and the Stock Option Agreement in
accordance with the Securities Act and the Exchange Act, as the case may be, and
the effectiveness of the Registration Statement, (iv) such consents, approvals,
orders, authorizations, registrations, declarations and filings as may be
required under applicable federal, foreign and state securities (or related)
laws and the HSR Act, and the securities or antitrust laws of any foreign
country, and (v) such other consents, authorizations, filings, approvals and
registrations which if not obtained or made would not be material to Parent or
have a material adverse effect on the ability of the parties hereto to
consummate the Merger.
3.5 SEC Filings; Parent Financial Statements.
(a) Parent has filed all forms, reports and documents required
to be filed by Parent with the SEC since January 1, 1997 and has made available
to the Company such forms, reports and documents in the form filed with the SEC.
All such required forms, reports and documents (including those that Parent may
file subsequent to the date hereof), as amended, together with the offering
memorandum dated December 21, 1998 prepared by Parent in connection with
Parent's private placement of convertible subordinated debentures due 2018, are
referred to herein as the "PARENT SEC REPORTS"). As of their respective dates,
Parent SEC Reports (i) were prepared in accordance and complied in all material
respects with the requirements of the Securities Act, or the Exchange Act, as
the case may be, and the rules and regulations of the SEC thereunder applicable
to such Parent SEC Reports and (ii) did not at the time they were filed contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except to the extent corrected prior to the date hereof by a
subsequently filed Parent SEC Report. None of Parent's subsidiaries is required
to file any forms, reports or other documents with the SEC.
(b) Each of the consolidated financial statements (including,
in each case, any related notes thereto) contained in the Parent SEC Reports
(the "PARENT FINANCIALS"), including each Parent SEC Report filed after the date
hereof until the Closing, (i) complied as to form in all material respects with
the published rules and regulations of the SEC with respect thereto, (ii) was
prepared in accordance with GAAP applied on a consistent basis throughout the
periods involved (except as may be indicated in the notes thereto or, in the
case of unaudited interim financial statements, as may be
<PAGE> 33
permitted by the SEC on Form 10-Q, 8-K or any successor form under the Exchange
Act) and (iii) fairly presented in all material respects the consolidated
financial position of Parent and its consolidated subsidiaries as at the
respective dates thereof and the consolidated results of Parent's operations and
cash flows for the periods indicated, except that the unaudited interim
financial statements may not contain footnotes and were or are subject to normal
and recurring year-end adjustments. The balance sheet of Parent contained in
Parent SEC Report as of September 30, 1998 is hereinafter referred to as (the
"PARENT BALANCE SHEET"). Except as disclosed in the Parent Financials, since the
date of the Parent Balance Sheet neither Parent nor any of its subsidiaries has
any liabilities required under GAAP to be set forth on a consolidated balance
sheet (absolute, accrued, contingent or otherwise) which are, individually or in
the aggregate, material to the business, results of operations or financial
condition of Parent and its subsidiaries taken as a whole, except for
liabilities incurred since the date of the Parent Balance Sheet in the ordinary
course of business consistent with past practices and liabilities incurred
pursuant to this Agreement.
(c) Parent has heretofore furnished to Parent a complete and
correct copy of any amendments or modifications, which have not yet been filed
with the SEC but which are required to be filed, to agreements, documents or
other instruments which previously had been filed by Parent with the SEC
pursuant to the Securities Act or the Exchange Act.
3.6 Absence of Certain Changes or Events. Since the date of Parent
Balance Sheet there has not been: (i) any Material Adverse Effect on Parent,
(ii) any declaration, setting aside or payment of any dividend on, or other
distribution (whether in cash, stock or property) in respect of, any of Parent's
or any of its subsidiaries' capital stock, or any purchase, redemption or other
acquisition by Parent or any of its subsidiaries of any of Parent's capital
stock or any other securities of Parent or its subsidiaries or any options,
warrants, calls or rights to acquire any such shares or other securities except
for repurchases from employees following their termination pursuant to the terms
of their pre-existing stock option or purchase agreements, (iii) any split,
combination or reclassification of any of Parent's or any of its subsidiaries'
capital stock, (iv) any granting by Parent or any of its subsidiaries of any
increase in compensation or fringe benefits, except for normal increases of cash
compensation in the ordinary course of business consistent with past practice,
or any payment by Parent or any of its subsidiaries of any bonus, except for
bonuses made in the ordinary course of business consistent with past practice,
or any granting by Parent or any of its subsidiaries of any increase in
severance or termination pay or any entry by Parent or any of its subsidiaries
into any currently effective employment, severance, termination or
indemnification agreement or any agreement the benefits of which are contingent
or the terms of which are materially altered upon the occurrence of a
transaction involving Parent of the nature contemplated hereby, (v) entry by
Parent or any of its subsidiaries into any licensing or other agreement with
regard to the acquisition or disposition of any material Intellectual Property
(as defined in Section 3.9) other than Ordinary Course Agreements, (vi) any
amendment or consent with respect to any licensing agreement filed or required
to be filed by Parent with the SEC, (vii) any material change by Parent in its
accounting methods, principles or practices, except as required by concurrent
changes in GAAP, or (viii) any material revaluation by Parent of any of its
assets, including, without limitation, writing down the
<PAGE> 34
value of capitalized inventory or writing off notes or accounts receivable other
than in the ordinary course of business.
3.7 Taxes.
(a) Tax Returns and Audits.
(i) Parent and each of its subsidiaries have timely
filed all Returns relating to Taxes required to be filed by Parent and each of
its subsidiaries with any Tax authority, except such Returns which are not
material to Parent, and have paid all Taxes shown to be due on such Returns.
(ii) Parent and each of its subsidiaries as of the
Effective Time will have withheld with respect to its employees all federal and
state income taxes, Taxes pursuant to FICA, Taxes pursuant to the FUTA and other
Taxes required to be withheld, except such Taxes which are not material to
Parent.
(iii) Neither Parent nor any of its subsidiaries has
been delinquent in the payment of any material Tax nor is there any material Tax
deficiency outstanding, proposed or assessed against Parent or any of its
subsidiaries, nor has Parent or any of its subsidiaries executed any unexpired
waiver of any statute of limitations on or extending the period for the
assessment or collection of any Tax.
(iv) No audit or other examination of any Return of
Parent or any of its subsidiaries by any Tax authority is presently in progress,
nor has Parent or any of its subsidiaries been notified of any request for such
an audit or other examination.
(v) No adjustment relating to any Returns filed by
Parent or any of its subsidiaries has been proposed in writing formally or
informally by any Tax authority to Parent or any of its subsidiaries or any
representative thereof.
(vi) Neither Parent nor any of its subsidiaries has
any liability for any material unpaid Taxes which has not been accrued for or
reserved on Parent Balance Sheet in accordance with GAAP, whether asserted or
unasserted, contingent or otherwise, which is material to Parent, other than any
liability for unpaid Taxes that may have accrued since the date of Parent
Balance Sheet in connection with the operation of the business of Parent and its
subsidiaries in the ordinary course.
(vii) There is no contract, agreement, plan or
arrangement to which Parent or any of its subsidiaries is a party as of the date
of this Agreement, including but not limited to the provisions of this
Agreement, covering any employee or former employee of Parent or any of its
subsidiaries that, individually or collectively, would reasonably be expected to
give rise to the payment of any amount that would not be deductible pursuant to
Sections 280G, 404 or 162(m) of
<PAGE> 35
the Code.
(viii) Neither Parent nor any of its subsidiaries has
filed any consent agreement under Section 341(f) of the Code or agreed to have
Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset
(as defined in Section 341(f)(4) of the Code) owned by Parent or any of its
subsidiaries.
(ix) Neither Parent nor any of its subsidiaries is
party to or has any obligation under any tax-sharing, tax indemnity or tax
allocation agreement or arrangement.
(x) None of Parent's or its subsidiaries' assets are
tax exempt use property within the meaning of Section 168(h) of the Code.
3.8 Title to Properties; Absence of Liens and Encumbrances.
(a) All of Parent's and its subsidiaries' current leases with
respect to real property are in full force and effect, are valid and effective
in accordance with their respective terms, and there is not, under any of such
leases, any existing default or event of default (or event which with notice or
lapse of time, or both, would constitute a default) that would give rise to a
material claim. Other than the leaseholds created under real property leases,
Parent and its subsidiaries own no interest in real property.
(b) Parent or its subsidiaries have good and valid title to,
or, in the case of leased properties and assets, valid leasehold interests in,
all of its tangible properties and assets, real, personal and mixed, used or
held for use in its business, free and clear of any Liens, except as reflected
in Parent Financials and except for such Liens or other imperfections of title
and encumbrances, if any, which are not material in character, amount or extent,
and which do not materially detract from the value, or materially interfere with
the present use, of the property subject thereto or affected thereby.
3.9 Intellectual Property. For the purposes of this Agreement, the
following terms have the following definitions:
"PARENT INTELLECTUAL PROPERTY" means any Intellectual Property
that is owned by, or exclusively licensed to, Parent or any of
its subsidiaries.
"PARENT REGISTERED INTELLECTUAL PROPERTY" means all of the
Registered Intellectual Property owned by, or filed in the
name of, Parent or any of its subsidiaries.
(a) No material Parent Intellectual Property or product or
service of Parent is subject to any proceeding or outstanding decree, order,
judgment, agreement, or stipulation restricting in any manner the use, transfer,
or licensing thereof by Parent, or which may affect the
<PAGE> 36
validity, use or enforceability of such Parent Intellectual Property, except for
restrictions on User Data included in published privacy policies of Parent or
any of its subsidiaries.
(b) Each material item of Parent Registered Intellectual
Property is valid and subsisting, all necessary registration, maintenance and
renewal fees currently due in connection with such Registered Intellectual
Property have been made and all necessary documents, recordations and
certificates in connection with such Registered Intellectual Property have been
filed with the relevant patent, copyright, trademark or other authorities in the
United States or foreign jurisdictions, as the case may be, for the purposes of
maintaining such Registered Intellectual Property.
(c) Parent or one of its subsidiaries owns and has good and
exclusive title to, or has joint ownership or license (sufficient for the
conduct of its business as currently conducted) to, each material item of Parent
Intellectual Property free and clear of any material lien or encumbrance
(excluding licenses and related restrictions); and Parent is the exclusive owner
of all material Trademarks of Parent used in connection with the operation or
conduct of the business of Parent, including the sale of any products or the
provision of any services by Parent.
(d) Part 3.9(d) of the Parent Schedules contains a complete
and accurate list as of the date hereof of all material Contracts with respect
to distribution arrangements between Parent and cable companies in North
America.
(e) Part 3.9(e) of the Parent Schedules contains a complete
and accurate list as of the date hereof of all material Contracts with respect
to Parent's network.
(f) Part 3.9(f) of the Parent Schedules contains a complete
and accurate list as of the date hereof of all Contracts currently in force
relating to the disposition or acquisition by Parent or any of its subsidiaries
after the date of this Agreement of a material amount of assets not in the
ordinary course of business.
(g) To the extent that any material Intellectual Property has
been developed or created by a third party for Parent or any of its
subsidiaries, Parent or such subsidiary has a written agreement with such third
party with respect thereto and Parent or such subsidiary thereby either (i) has
obtained ownership of, and is the exclusive owner of, or (ii) has obtained a
license (sufficient for the conduct of its business as currently conducted) to
all such third party's Intellectual Property in such work, material or invention
by operation of law or by valid assignment or license, to the fullest extent it
is legally possible to do so.
(h) The operation of the business of Parent as such business
currently is conducted, including Parent's design, development, marketing and
sale of the products or services of Parent (including with respect to products
currently under development) has not, does not and will not infringe or
misappropriate the Intellectual Property of any third party or constitute unfair
competition or trade practices under the laws of any jurisdiction, except with
respect to the use, licensing and sale of User Data, which use licensing or
sale, to the knowledge of Parent, will not
<PAGE> 37
violate the Intellectual Property Rights or any United States privacy or similar
United States right of any third party or constitute unfair competition or trade
practices under the laws of any jurisdiction.
(i) Parent has not received notice from any third party that
the operation of the business of Parent or any act, product or service of
Parent, infringes or misappropriates the Intellectual Property of any third
party or constitutes unfair competition or trade practices under the laws of any
jurisdiction.
(j) To the knowledge of Parent, no person has or is infringing
or misappropriating any material Parent Intellectual Property.
(k) Parent has taken reasonable steps to protect Parent's
rights in Parent's confidential information and trade secrets that it wishes to
protect or any trade secrets or confidential information of third parties
provided to Parent, and, without limiting the foregoing, Parent has and enforces
a policy requiring each employee and contractor to execute a proprietary
information/confidentiality agreement substantially in the form provided to the
Company and all current and former employees and contractors of Parent and each
of its subsidiaries have executed such an agreement, except where the failure to
do so is not reasonably expected to be material to Parent.
3.10 Compliance; Permits; Restrictions.
(a) Neither Parent nor any of its subsidiaries is, in any
material respect, in conflict with, or in default or in violation of (i) to the
knowledge of Parent, any law, rule, regulation, order, judgment or decree
applicable to Parent or any of its subsidiaries or by which Parent or any of its
subsidiaries or any of their respective businesses or properties is, or Parent
believes is reasonably likely to be bound or affected, or (ii) any material
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which Parent or any of its
subsidiaries is a party or by which Parent or any of its subsidiaries or its or
any of their respective properties is bound or affected, except for conflicts,
violations and defaults that (individually or in the aggregate) would not cause
Parent to lose any material benefit or incur any material liability. No
investigation or review by any Governmental Entity is pending or, to Parent's
knowledge, has been threatened in a writing delivered to Parent against Parent
or any of its subsidiaries, nor, to Parent's knowledge, has any Governmental
Entity indicated an intention to conduct an investigation of Parent or any of
its subsidiaries. There is no material agreement, judgment, injunction, order or
decree binding upon Parent or any of its subsidiaries which has or could
reasonably be expected to have the effect of prohibiting or materially impairing
any business practice of Parent or any of its subsidiaries, any acquisition of
material property by Parent or any of its subsidiaries or the conduct of
business by Parent as currently conducted.
(b) Parent and its subsidiaries hold, to the extent legally
required, all permits, licenses, variances, exemptions, orders and approvals
from Governmental Entities that are material
<PAGE> 38
to and required for the operation of the business of Parent as currently
conducted (collectively, the "PARENT PERMITS"). Parent and its subsidiaries are
in compliance in all material respects with the terms of Parent Permits, except
where the failure to be in compliance with the terms of Parent Permits would not
be material to Parent.
3.11 Litigation. Except as disclosed in Part 3.11 of the Parent
Schedules, there are no claims, suits, actions or proceedings pending or, to the
knowledge of Parent, threatened against Parent or any of its subsidiaries,
before any court, governmental department, commission, agency, instrumentality
or authority, or any arbitrator that seeks to restrain or enjoin the
consummation of the transactions contemplated by this Agreement or which could
reasonably be expected, either singularly or in the aggregate with all such
claims, actions or proceedings, to be material to Parent. No Governmental Entity
has at any time challenged or questioned in a writing delivered to Parent the
legal right of Parent to design, manufacture, offer or sell any of its products
or services in the present manner or style thereof. As of the date hereof, to
the knowledge of Parent, no event has occurred, and no claim, dispute or other
condition or circumstance exists, that will, or that would reasonably be
expected to, cause or provide a bona fide basis for a director or executive
officer of Parent to seek indemnification from Parent.
3.12 Brokers' and Finders' Fees. Except for fees payable to Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Parent has not incurred, nor will it
incur, directly or indirectly, any liability for brokerage or finders' fees or
agents' commissions or any similar charges in connection with this Agreement or
any transaction contemplated hereby.
3.13 Environmental Matters.
(a) Hazardous Material. Except as would not result in material
liability to Parent, no Hazardous Materials are present, as a result of the
actions of Parent or any of its subsidiaries or any affiliate of Parent, or, to
Parent's knowledge, as a result of any actions of any third party or otherwise,
in, on or under any property, including the land and the improvements, ground
water and surface water thereof, that Parent or any of its subsidiaries has at
any time owned, operated, occupied or leased.
(b) Hazardous Materials Activities. Except as would not result
in a material liability to Parent (in any individual case or in the aggregate)
(i) neither Parent nor any of its subsidiaries has transported, stored, used,
manufactured, disposed of, released or exposed its employees or others to
Hazardous Materials in violation of any law in effect on or before the Closing
Date, and (ii) neither Parent nor any of its subsidiaries has disposed of,
transported, sold, used, released, exposed its employees or others to or
manufactured any product containing a Hazardous Material in violation of any
rule, regulation, treaty or statute promulgated by any Governmental Entity in
effect prior to or as of the date hereof to prohibit, regulate or control
Hazardous Materials or any Hazardous Material Activity.
<PAGE> 39
(c) Permits. Parent and its subsidiaries currently hold all
environmental approvals, permits, licenses, clearances and consents (the "PARENT
ENVIRONMENTAL PERMITS") necessary for the conduct of Parent's and its
subsidiaries' Hazardous Material Activities and other businesses of Parent and
its subsidiaries as such activities and businesses are currently being
conducted.
(d) Environmental Liabilities. No action, proceeding,
revocation proceeding, amendment procedure, writ or injunction is pending, and
to Parent's knowledge, no action, proceeding, revocation proceeding, amendment
procedure, writ or injunction has been threatened by any Governmental Entity
against Parent or any of its subsidiaries in a writing delivered to Parent
concerning any Parent Environmental Permit, Hazardous Material or any Hazardous
Materials Activity of Parent or any of its subsidiaries.
3.14 Agreements, Contracts and Commitments. Neither Parent nor any of
its subsidiaries, nor to Parent's knowledge any other party to a Parent Contract
(as defined below), is in breach, violation or default under, and neither Parent
nor any of its subsidiaries has received written notice that it has breached,
violated or defaulted under, any of the material terms or conditions of any of
the Contracts to which Parent or any of its subsidiaries is a party or by which
it is bound that are required to be disclosed in the Parent Schedules pursuant
to clauses (d) through (f) of Section 3.9 hereof or are required to be filed
with any Parent SEC Report or are material to Parent (each, a "PARENT CONTRACT")
in such a manner as would permit any other party to cancel or terminate any such
material Contract of Parent, or would permit any other party to seek material
damages or other remedies (for any or all of such breaches, violations or
defaults, in the aggregate). Parent has made available to the Company for its
inspection all material Contracts of Parent.
3.15 Disclosure. None of the information to be supplied by or on behalf
of Parent for inclusion in the Registration Statement will, at the Registration
Statement becomes effective under the Securities Act, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading, except
that no representation or warranty is made by Parent with respect to statements
made or incorporated by reference therein about the Company supplied by the
Company for inclusion or incorporation by reference in the Registration
Statement. None of the information to be supplied by or on behalf of Parent for
inclusion or incorporation by reference in the Prospectus/Proxy Statement will,
at the time the Prospectus/Proxy Statement is mailed to the stockholders of the
Company or Parent, at the time of the Company or Parent Stockholders' Meeting or
as of the Effective Time, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they are made, not misleading. The Registration Statement will comply as
to form in all material respects with the provisions of the Securities Act and
the rules and regulations promulgated by the SEC thereunder, except that no
representation or warranty is made by Parent with respect to statements made or
incorporated by reference therein based on information supplied by the Company
for inclusion or incorporation by reference in the Prospectus/Proxy Statement,
except that no representation or warranty is made by
<PAGE> 40
Parent with respect to statements made or incorporated by reference therein
about the Company supplied by the Company for inclusion or incorporation by
reference in the Prospectus/Proxy Statement.
3.16 Board Approval. The Board of Directors of Parent (including the
Series B Common Stock directors thereon and 75% (rounded up to the nearest whole
number of directors) of the total number of Series B Common Stock and, if
required, Series K Common Stock directors on Parent's Board of Directors, voting
separately from the other Directors of Parent) has, as of the date of this
Agreement approved the issuance of shares of Parent Common Stock in connection
with the Merger and approved an amendment to Parent's Certificate of
Incorporation to increase the authorized number of shares of Parent Common Stock
so as to permit the transactions contemplated hereby, subject to and upon
consummation of the Merger.
3.17 Fairness Opinion. Parent's Board of Directors has received a
written opinion from Merrill Lynch, Pierce, Fenner & Smith Incorporated dated as
of the date hereof, to the effect that as of the date hereof, the Exchange Ratio
is fair to the stockholders of Parent from a financial point of view and has
delivered to the Company a copy of such opinion.
ARTICLE IV
CONDUCT PRIOR TO THE EFFECTIVE TIME
4.1 Conduct of Business by the Company. During the period from the date
of this Agreement and continuing until the earlier of the termination of this
Agreement pursuant to its terms or the Effective Time, the Company and each of
its subsidiaries shall, except to the extent that Parent shall otherwise consent
in writing, carry on its business, in all material respects, in the usual,
regular and ordinary course, in substantially the same manner as heretofore
conducted and contemplated to be conducted and in compliance with all applicable
laws and regulations, pay its debts and taxes when due subject to good faith
disputes over such debts or taxes, pay or perform other material obligations
when due subject to good faith disputes over such obligations, and use its
commercially reasonable efforts consistent with past practices and policies to
(i) preserve intact its present business organization, (ii) keep available the
services of its present executive officers and key employees and (iii) preserve
its relationships with customers, suppliers, licensors, licensees, and others
with which it has business dealings.
In addition, except as permitted by the terms of this Agreement, and
except as provided in Article 4 of the Company Schedules, without the prior
written consent of Parent, during the period from the date of this Agreement and
continuing until the earlier of the termination of this Agreement pursuant to
its terms or the Effective Time, the Company shall not do any of the following
and shall not permit its subsidiaries to do any of the following:
(a) Waive any stock repurchase rights, accelerate, amend or
change the period of exercisability of options or restricted stock, or reprice
options granted under any employee,
<PAGE> 41
consultant, director or other stock plans or authorize cash payments in exchange
for any options granted under any of such plans;
(b) Grant any severance or termination pay to any officer or
employee except pursuant to written agreements outstanding, or policies
existing, on the date hereof and as previously disclosed in writing or made
available to Parent, or adopt any new severance plan;
(c) Transfer or license to any person or entity or otherwise
extend, amend or modify in any material respect any rights to material Company
Intellectual Property, or enter into grants to future patent rights, other than
Ordinary Course Agreements and other than published privacy policies in the
ordinary course of business consistent with standard industry practice or
consistent with applicable law affecting privacy rights;
(d) Declare, set aside or pay any dividends on or make any
other distributions (whether in cash, stock, equity securities or property) in
respect of any capital stock or split, combine or reclassify any capital stock
or issue or authorize the issuance of any other securities in respect of, in
lieu of or in substitution for any capital stock;
(e) Purchase, redeem or otherwise acquire, directly or
indirectly, any shares of capital stock of the Company or its subsidiaries,
except repurchases of unvested shares at cost in connection with the termination
of the employment relationship with any employee pursuant to stock option or
purchase agreements in effect on the date hereof;
(f) Issue, deliver, sell, authorize, pledge or otherwise
encumber, any shares of capital stock or any securities convertible into shares
of capital stock, or subscriptions, rights, warrants or options to acquire any
shares of capital stock or any securities convertible into shares of capital
stock, or enter into other agreements or commitments of any character obligating
it to issue any such shares or convertible securities, other than (i) stock
options granted pursuant to Section 5.9(d) hereof, (ii) grants of stock options
under the Company's 1996 Equity Incentive Plan to newly hired employees,
consistent with prior practice and Parent's option grant practices, (iii)
issuance of shares of the Company Common Stock pursuant to the exercise of stock
options therefor outstanding as of the date of this Agreement or granted
pursuant to the preceding clauses (i) and (ii) or pursuant to warrants
outstanding on the date hereof and disclosed on the Company Schedules or upon
the conversion of convertible debt outstanding on the date hereof and disclosed
on the Company Schedules, and (iv) issuance of shares of the Company Common
Stock to participants in the Company Purchase Plan pursuant to the terms
thereof;
(g) Cause, permit or propose any amendments to its Certificate
of Incorporation, Bylaws or other charter documents (or similar governing
instruments of any of its subsidiaries);
(h) Acquire or agree to acquire by merging or consolidating
with, or by purchasing any equity interest in or a portion of the assets of, or
by any other manner, any business
<PAGE> 42
or any corporation, partnership, association or other business organization or
division thereof, or otherwise acquire or agree to acquire any assets which are
material, individually or in the aggregate, to the business of the Company or
enter into any material joint ventures, strategic partnerships or alliances (it
being understood that the Company acquires immaterial businesses without issuing
any equity securities (other than the grant of stock options to new hires in the
ordinary course of business consistent with past practice) and that the Company
may continue to engage in such acquisitions following prior consultation with
Parent's Chief Executive Officer, Chief Financial Officer or General Counsel,
provided that the amount of such acquisitions shall not exceed $7,500,000 in any
individual case or $50 million in the aggregate (it being further understood
that no inference shall be drawn herefrom that any acquisition is immaterial by
virtue of its amount being less than $7,500,000));
(i) Sell, lease, license, encumber or otherwise dispose of any
properties or assets which are material, individually or in the aggregate, to
the business of the Company, except in the ordinary course of business
consistent with past practice;
(j) Incur any indebtedness for borrowed money or guarantee any
such indebtedness of another person, issue or sell any debt securities or
options, warrants, calls or other rights to acquire any debt securities of the
Company, enter into any "keep well" or other agreement to maintain any financial
statement condition or enter into any arrangement having the economic effect of
any of the foregoing other than (i) in connection with the financing of ordinary
course trade payables consistent with past practice, (ii) pursuant to existing
credit facilities or equipment leasing arrangements in the ordinary course of
business or (iii) increases of available borrowings under credit facilities on
customary and commercially reasonable terms, provided that available borrowings
under all credit facilities of the Company shall not be increased to an amount
greater than $20 million in the aggregate prior to the date six months from the
date hereof, or $30 million in the aggregate thereafter, without the prior
written consent of Parent;
(k) Adopt or amend any employee benefit plan or employee stock
purchase or employee stock option plan, or enter into any employment contract or
collective bargaining agreement (other than offer letters and letter agreements
entered into in the ordinary course of business consistent with past practice
with employees who are terminable "at will"), pay any special bonus or special
remuneration to any director or employee, or increase the salaries or wage rates
or fringe benefits (including rights to severance or indemnification) of its
directors, officers, employees or consultants other than in the ordinary course
of business, consistent with past practice, or change in any material respect
any management policies or procedures;
(l) Modify, amend or terminate any Company Contract or other
material contract or agreement to which the Company or any subsidiary thereof is
a party or waive, release or assign any material rights or claims thereunder,
other than (i) the modification, amendment or termination of Ordinary Course
Agreements in the ordinary course of business, consistent with past practice or
(ii) immaterial oral modifications or amendments in the ordinary course of
business, consistent with past practice;
<PAGE> 43
(m) Enter into any licensing, distribution, sponsorship,
advertising, merchant program or similar contracts, agreements, or obligations
other than Ordinary Course Agreements;
(n) Materially revalue any of its material assets or, except
as required by GAAP or the SEC, make any material change in accounting methods,
principles or practices;
(o) take any action (including any action by its Board of
Directors) to amend the terms of the Company Rights Plan or otherwise to (i)
cause any change, effect or result thereunder which would, in the absence of
such action, otherwise occur as a result of any Acquisition Proposal or
Acquisition Transaction (as defined below) or (ii) cause the Company's
representation set forth in Section 2.21 hereof to be untrue in any respect; or
(p) Agree in writing or otherwise to take any of the actions
described in (a) through (o) above.
4.2 Conduct of Business by Parent. During the period from the date of
this Agreement and continuing until the earlier of the termination of this
Agreement pursuant to its terms or the Effective Time, Parent shall, except to
the extent that the Company shall otherwise consent in writing, carry on its
business, in all material respects, in the usual, regular and ordinary course,
in substantially the same manner as heretofore conducted and contemplated to be
conducted and in compliance with all applicable laws and regulations, pay its
debts and taxes when due, subject to good faith disputes over such debts or
taxes, pay or perform other material obligations when due subject to good faith
disputes over such obligations, and use its commercially reasonable efforts
consistent with past practices and policies to (i) preserve intact its present
business organization, (ii) keep available the services of its present executive
officers and key employees and (iii) preserve its relationships with customers,
suppliers, licensors, licensees, multiple system operators and others with which
it has business dealings.
In addition, except as permitted by the terms of this Agreement and
except as provided in Article 4 of the Parent Schedules, without the prior
written consent of the Company (which consent shall not be unreasonably
withheld), during the period from the date of this Agreement and continuing
until the earlier of the termination of this Agreement pursuant to its terms or
the Effective Time, Parent shall not do any of the following:
(a) Declare, set aside or pay any dividends on or make any
other distributions (whether in cash, stock, equity securities or property) in
respect of any capital stock or split, combine or reclassify any capital stock
or issue or authorize the issuance of any other securities in respect of, in
lieu of or in substitution for any capital stock;
(b) Purchase, redeem or otherwise acquire, directly or
indirectly, any shares of capital stock of Parent or its subsidiaries, except
repurchases of unvested shares at cost in connection with the termination of the
employment relationship with any employee pursuant to stock option or
<PAGE> 44
repurchase agreements in effect on the date hereof;
(c) Issue, deliver, sell, authorize, pledge or otherwise
encumber any shares of capital stock or any securities convertible into shares
of capital stock, or subscriptions, rights, warrants or options to acquire any
shares of capital stock or any securities convertible into shares of capital
stock, or enter into other agreements or commitments of any character obligating
it to issue any such shares or convertible securities, other than (i) the grant
of stock options in the ordinary course of business and consistent with past
practice; (ii) the issuance of performance warrants to cable operators; (iii)
the issuance of shares of Parent Common Stock pursuant to the exercise of stock
options or warrants therefor outstanding as of the date of this Agreement or
granted pursuant to the preceding clauses (i) and (ii); (iii) issuance of shares
of Parent Common Stock to participants in the Parent Purchase Plan pursuant to
the terms thereof or (iv) issuances of securities in connection with any
acquisition;
(d) Sell, lease, license, encumber or otherwise dispose of any
properties or assets which are material, individually or in the aggregate, to
the business of Parent, except in the ordinary course of business consistent
with past practice;
(e) Materially revalue any of its material assets or, except
as required by GAAP or the SEC, make any material change in accounting methods,
principles or practices; and
(f) Agree in writing or otherwise to take any of the actions
described in Section 4.2 (a) through (e) above.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 Prospectus/Proxy Statement; Registration Statement; Other Filings.
As promptly as practicable after the execution of this Agreement, the Company
and Parent will prepare and file with the SEC, the Prospectus/Proxy Statement
and Parent will prepare and file with the SEC the Registration Statement in
which the Prospectus/Proxy Statement will be included as a prospectus. Each of
the Company and Parent will respond to any comments of the SEC, will use its
respective commercially reasonable efforts to have the Registration Statement
declared effective under the Securities Act as promptly as practicable after
such filing and each of the Company and Parent will cause the Prospectus/Proxy
Statement to be mailed to its respective stockholders at the earliest
practicable time after the Registration Statement is declared effective by the
SEC. As promptly as practicable after the date of this Agreement, each of the
Company and Parent will prepare and file (i) with the United States Federal
Trade Commission (the "FTC") and the Antitrust Division of the United States
Department of Justice ("DOJ") Notification and Report Forms relating to the
transactions contemplated herein as required by the HSR Act, as well as
comparable pre-merger notification forms required by the merger notification or
control laws and regulations of any
<PAGE> 45
applicable jurisdiction, as agreed to by the parties (the "ANTITRUST FILINGS")
and (ii) any other filings required to be filed by it under the Exchange Act,
the Securities Act or any other Federal, state or foreign laws relating to the
Merger and the transactions contemplated by this Agreement (the "OTHER
FILINGS"). The Company and Parent each shall promptly supply the other with any
information which may be required in order to effectuate any filings pursuant to
this Section 5.1. Each of the Company and Parent will notify the other promptly
upon the receipt of any comments from the SEC or its staff or any other
government officials in connection with any filing made pursuant hereto and of
any request by the SEC or its staff or any other government officials for
amendments or supplements to the Registration Statement, the Prospectus/Proxy
Statement or any Antitrust Filings or Other Filing or for additional information
and will supply the other with copies of all correspondence between such party
or any of its representatives, on the one hand, and the SEC, or its staff or any
other government officials, on the other hand, with respect to the Registration
Statement, the Prospectus/Proxy Statement, the Merger or any Antitrust Filing or
Other Filing. Each of the Company and Parent will cause all documents that it is
responsible for filing with the SEC or other regulatory authorities under this
Section 5.1 to comply in all material respects with all applicable requirements
of law and the rules and regulations promulgated thereunder. Whenever any event
occurs which is required to be set forth in an amendment or supplement to the
Prospectus/Proxy Statement, the Registration Statement or any Antitrust Filing
or Other Filing, the Company or Parent, as the case may be, will promptly inform
the other of such occurrence and cooperate in filing with the SEC or its staff
or any other government officials, and/or mailing to stockholders of the Company
and/or Parent, such amendment or supplement.
5.2 Meeting of Company Stockholders.
(a) Promptly after the date hereof, the Company will take all
action necessary in accordance with Delaware Law and its Certificate of
Incorporation and Bylaws to convene a meeting of the Company's stockholders to
consider adoption and approval of this Agreement and approval of the Merger (the
"COMPANY STOCKHOLDERS' MEETING") to be held as promptly as practicable, and in
any event (to the extent permissible under applicable law) within 45 days after
the declaration of effectiveness of the Registration Statement. Subject to
Section 5.2(c) hereof, the Company will use its commercially reasonable efforts
to solicit from its stockholders proxies in favor of the adoption and approval
of this Agreement and the approval of the Merger and will take all other action
necessary or advisable to secure the vote or consent of its stockholders
required by the rules of Nasdaq or Delaware Law to obtain such approvals.
Notwithstanding anything to the contrary contained in this Agreement, the
Company may adjourn or postpone the Company Stockholders' Meeting to the extent
necessary to ensure that any necessary supplement or amendment to the
Prospectus/Proxy Statement is provided to the Company's stockholders in advance
of a vote on the Merger and this Agreement or, if as of the time for which the
Company Stockholders' Meeting is originally scheduled (as set forth in the
Prospectus/Proxy Statement) there are insufficient shares of Company Common
Stock represented (either in person or by proxy) to constitute a quorum
necessary to conduct the business of the Company's Stockholders' Meeting. The
Company shall ensure that the Company Stockholders' Meeting is called, noticed,
convened, held and conducted,
<PAGE> 46
and that all proxies solicited by the Company in connection with the Company
Stockholders' Meeting are solicited, in compliance with the Delaware Law, the
Company's Certificate of Incorporation and Bylaws, the rules of Nasdaq and all
other applicable legal requirements. The Company's obligation to call, give
notice of, convene and hold the Company Stockholders' Meeting in accordance with
this Section 5.2(a) shall not be limited to or otherwise affected by the
commencement, disclosure, announcement or submission to the Company of any
Acquisition Proposal, or by any withdrawal, amendment or modification of the
recommendation of the Board of Directors of the Company with respect to the
Merger and/or this Agreement.
(b) Subject to Section 5.2(c): (i) the Board of Directors of
the Company shall unanimously recommend that the Company's stockholders vote in
favor of and adopt and approve this Agreement and approve the Merger at the
Company Stockholders' Meeting; (ii) the Prospectus/Proxy Statement shall include
a statement to the effect that the Board of Directors of the Company has
unanimously recommended that the Company's stockholders vote in favor of and
adopt and approve this Agreement and the Merger at the Company Stockholders'
Meeting; and (iii) neither the Board of Directors of the Company nor any
committee thereof shall withdraw, amend or modify, or propose or resolve to
withdraw, amend or modify in a manner adverse to Parent, the unanimous
recommendation of the Board of Directors of the Company that the Company's
stockholders vote in favor of and adopt and approve this Agreement and the
Merger. For purposes of this Agreement, said recommendation of the Board of
Directors shall be deemed to have been modified in a manner adverse to Parent if
said recommendation shall no longer be unanimous, provided that, for all
purposes of this Agreement, an action by any Board of Directors or committee
thereof shall be unanimous if each member of such Board of Directors or
committee has approved such action other than (i) any such member who has
appropriately abstained from voting on such matter because of an actual or
potential conflict of interest and (ii) any such member who is unable to vote in
connection with such action as a result of death or disability.
(c) Nothing in this Agreement shall prevent the Board of
Directors of the Company from withholding, withdrawing, amending or modifying
its unanimous recommendation in favor of the Merger if (i) a Superior Offer (as
defined below) is made to the Company and is not withdrawn, (ii) the Company
shall have provided written notice to Parent (a "NOTICE OF SUPERIOR OFFER")
advising Parent that the Company has received a Superior Offer, specifying the
material terms and conditions of such Superior Offer and identifying the person
or entity making such Superior Offer, (iii) Parent shall not have, within five
(5) business days of Parent's receipt of the Notice of Superior Proposal, made
an offer that the Company Board by a majority vote determines in its good faith
judgment (based on the written advice of its financial adviser) to be at least
as favorable to the Company's stockholders as such Superior Proposal (it being
agreed that the Company Board shall convene a meeting to consider any such offer
by Parent promptly following the receipt thereof), (iv) the Board of Directors
of the Company concludes in good faith, after consultation with its outside
counsel, that, in light of such Superior Offer, the withholding, withdrawal,
amendment or modification of such recommendation is required in order for the
Board of Directors of the Company to comply with its fiduciary obligations to
the Company's stockholders under applicable law and (v) the Company shall not
have violated any of the restrictions set forth in
<PAGE> 47
Section 5.5 or this Section 5.2. The Company shall provide Parent with at least
three business days prior notice (or such lesser prior notice as provided to the
members of the Company's Board of Directors but in no event less than
twenty-four hours) of any meeting of the Company's Board of Directors at which
the Company's Board of Directors is reasonably expected to consider any
Acquisition Transaction (as defined below). Subject to applicable laws, nothing
contained in this Section 5.2 shall limit the Company's obligation to hold and
convene the Company Stockholders' Meeting (regardless of whether the unanimous
recommendation of the Board of Directors of the Company shall have been
withdrawn, amended or modified). For purposes of this Agreement "SUPERIOR OFFER"
shall mean an unsolicited, bona fide written offer made by a third party to
consummate any of the following transactions: (i) a merger or consolidation
involving the Company pursuant to which the stockholders of the Company
immediately preceding such transaction hold less than 40% of the equity interest
in the surviving or resulting entity of such transaction or (ii) the acquisition
by any person or group (including by way of a tender offer or an exchange offer
or a two step transaction involving a tender offer followed with reasonable
promptness by a cash-out merger involving the Company), directly or indirectly,
of ownership of 100% of the then outstanding shares of capital stock of the
Company, on terms that the Board of Directors of the Company determines, in its
reasonable judgment (based on the written advice of its financial adviser) to be
more favorable to the Company stockholders than the terms of the Merger;
provided, however, that any such offer shall not be deemed to be a "Superior
Offer" if any financing required to consummate the transaction contemplated by
such offer is not committed and is not likely in the reasonable judgment of the
Company's Board of Directors (based on the advice of its financial adviser) to
be obtained by such third party on a timely basis.
(d) Nothing contained in this Agreement shall prohibit the
Company or its Board of Directors from taking and disclosing to its stockholders
a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the
Exchange Act.
5.3 Meeting of Parent Stockholders.
(a) Promptly after the date hereof, Parent will take all
action necessary in accordance with the Delaware Law and its Certificate of
Incorporation and Bylaws to convene a meeting of Parent's stockholders to
consider the issuance of the shares of Parent Common Stock pursuant to the
Merger and an amendment to Parent's Certificate of Incorporation to increase the
authorized number of shares of Parent Common Stock so as to permit the
transactions contemplated hereby, subject to and upon consummation of the
Merger, (the "PARENT STOCKHOLDERS MEETING") to be held as promptly as
practicable, and in any event (to the extent permissible under applicable law)
within 45 days after the declaration of effectiveness of the Registration
Statement. Parent will use its commercially reasonable efforts to solicit from
its stockholders proxies in favor of the issuance of the shares of Parent Common
Stock pursuant to the Merger and an amendment to Parent's Certificate of
Incorporation to increase the authorized number of shares of Parent Common Stock
so as to permit the transactions contemplated hereby, subject to and upon
consummation of the Merger, and will take all other action necessary or
advisable to secure the vote or consent of its
<PAGE> 48
stockholders required by the rules of Nasdaq or Delaware Law to obtain such
approvals. Notwithstanding anything to the contrary contained in this Agreement,
Parent may adjourn or postpone the Parent Stockholders' Meeting to the extent
necessary to ensure that any necessary supplement or amendment to the
Prospectus/Proxy Statement is provided to Parent's stockholders in advance of a
vote on the issuance of the shares of Parent Common Stock pursuant to the Merger
or a vote on the approval of an amendment to Parent's Certificate of
Incorporation to increase the authorized number of shares of Parent Common Stock
so as to permit the transactions contemplated hereby, subject to and upon
consummation of the Merger, or, if as of the time for which Parent Stockholders'
Meeting is originally scheduled (as set forth in the Prospectus/Proxy Statement)
there are insufficient shares of Parent Common Stock represented (either in
person or by proxy) to constitute a quorum necessary to conduct the business of
the Parent's Stockholders' Meeting. Parent shall ensure that the Parent
Stockholders' Meeting is called, noticed, convened, held and conducted, that all
proxies solicited by the Company in connection with the Parent Stockholders'
Meeting are solicited in compliance with the Delaware Law, its Certificate of
Incorporation and Bylaws, the rules of Nasdaq and all other applicable legal
requirements.
(b) The Board of Directors of Parent shall unanimously
recommend that Parent's stockholders vote in favor of the issuance of the shares
of Parent Common Stock pursuant to the Merger and an amendment to Parent's
Certificate of Incorporation to increase the authorized number of shares of
Parent Common Stock so as to permit the transactions contemplated hereby,
subject to and upon consummation of the Merger. The Prospectus/Proxy Statement
shall include a statement to the effect that the Board of Directors of Parent
has unanimously recommended that Parent's stockholders vote in favor of such
matters at the Parent Stockholders' Meeting. Neither the Board of Directors of
Parent nor any committee thereof shall withdraw, amend or modify, or propose or
resolve to withdraw, amend or modify in a manner adverse to the Company, the
unanimous recommendation of the Board of Directors of Parent that Parent's
stockholders vote in favor of such matters. For purposes of this Agreement, said
recommendation of the Board of Directors shall be deemed to have been modified
in a manner adverse to the Company if said recommendation shall no longer be
unanimous.
(c) Nothing contained in this Agreement shall prohibit Parent
or its Board of Directors from taking and disclosing to its stockholders a
position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange
Act.
5.4 Confidentiality; Access to Information.
(a) The parties acknowledge that the Company and Parent have
previously executed a Confidentiality Agreement dated January 12, 1999 (the
"CONFIDENTIALITY AGREEMENT"), which Confidentiality Agreement will continue in
full force and effect in accordance with its terms.
(b) Access to Information. Each of the Company and Parent will
afford the other and the other's accountants, counsel and other representatives
reasonable access during normal
<PAGE> 49
business hours to its properties, books, records and personnel during the period
prior to the Effective Time to obtain all information concerning its business,
including the status of product development efforts, properties, results of
operations and personnel, as such other party may reasonably request. No
information or knowledge obtained in any investigation pursuant to this Section
5.4 will affect or be deemed to modify any representation or warranty contained
herein or the conditions to the obligations of the parties to consummate the
Merger.
5.5 No Solicitation.
(a) From and after the date of this Agreement until the
Effective Time or termination of this Agreement pursuant to Article VII, the
Company and its subsidiaries will not, nor will they authorize or permit any of
their respective officers, directors, affiliates or employees or any investment
banker, attorney or other advisor or representative retained by any of them to,
directly or indirectly, (i) solicit, initiate, encourage or induce the making,
submission or announcement of any Acquisition Proposal (as hereinafter defined),
(ii) participate in any discussions or negotiations regarding, or furnish to any
person any non-public information with respect to, or take any other action to
facilitate any inquiries or the making of any proposal that constitutes or may
reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in
discussions with any person with respect to any Acquisition Proposal, except as
to the existence of these provisions, (iv) approve, endorse or recommend any
Acquisition Proposal or (v) enter into any letter of intent or similar document
or any contract agreement or commitment contemplating or otherwise relating to
any Acquisition Transaction; provided, however, that after receipt of an
unsolicited, written, bona fide Acquisition Proposal that the Board of Directors
of the Company reasonably concludes may constitute a Superior Offer, the Company
may on one occasion submit to the party making such Acquisition Proposal a
written list of questions, the sole purpose of which is to elicit clarifications
as to the material terms of the Acquisition Proposal so as to enable the Board
of Directors of the Company to make a determination whether such Acquisition
Proposal is in fact a Superior Offer (it being agreed that any correspondence
with such party shall be limited to questions and such questions shall be
limited to the purpose of clarifying the material terms of such Acquisition
Proposal and shall not solicit or encourage any new Acquisition Proposal or any
change to the Acquisition Proposal, and it being further agreed that the Company
shall provide Parent with a copy of any correspondence to be delivered pursuant
to this Section 5.5(a) at least 48 hours prior to sending such correspondence to
any third party). The Company and its subsidiaries will immediately cease any
and all existing activities, discussions or negotiations with any parties
conducted heretofore with respect to any Acquisition Proposal. Without limiting
the foregoing, it is understood that any violation of the restrictions set forth
in the preceding two sentences by any officer, director or employee of the
Company or any of its subsidiaries or any investment banker, attorney or other
advisor or representative of the Company or any of its subsidiaries shall be
deemed to be a breach of this Section 5.5 by the Company.
For purposes of this Agreement, "ACQUISITION PROPOSAL" shall mean any
offer or proposal (other than an offer or proposal by Parent) relating to any
Acquisition Transaction. For purposes of
<PAGE> 50
this Agreement, "ACQUISITION TRANSACTION" shall mean any transaction or series
of related transactions involving: (A) any purchase from the Company or
acquisition by any person or "group" (as defined under Section 13(d) of the
Exchange Act and the rules and regulations thereunder) of more than a 5%
interest in the total outstanding voting securities of the Company or any of its
subsidiaries or any tender offer or exchange offer that if consummated would
result in any person or "group" (as defined under Section 13(d) of the Exchange
Act and the rules and regulations thereunder) beneficially owning 5% or more of
the total outstanding voting securities of the Company or any of its
subsidiaries or any merger, consolidation, business combination or similar
transaction involving the Company; (B) any sale, lease (other than in the
ordinary course of business), exchange, transfer, license (other than in the
ordinary course of business), acquisition or disposition of more than 5% of the
assets of the Company; or (C) any liquidation or dissolution of the Company.
(b) In addition to the obligations of the Company set forth in
paragraph (a) of this Section 5.5, the Company as promptly as practicable shall
advise Parent orally and in writing of any Acquisition Proposal or any request
for non-public information or inquiry which the Company reasonably believes
would lead to an Acquisition Proposal or to any Acquisition Transaction, the
material terms and conditions of such Acquisition Proposal, request or inquiry,
and the identity of the person or group making any such Acquisition Proposal,
request or inquiry. The Company will keep Parent informed as promptly as
practicable in all material respects of the status and details (including
material amendments or proposed material amendments) of any such Acquisition
Proposal, request or inquiry.
5.6 Public Disclosure. Without limiting Sections 5.2 or 5.5 hereof or
anything else herein, Parent and the Company will attempt to consult with each
other, and to the extent practicable, agree, before issuing any press release or
otherwise making any public statement with respect to the Merger, this Agreement
or any Acquisition Proposal and will not issue any such press release or make
any such public statement prior to such consultation, except as may be required
by law or any listing agreement with a national securities exchange or Nasdaq.
The parties have agreed to the text of the joint press release announcing the
signing of this Agreement.
5.7 Reasonable Efforts; Notification.
(a) Upon the terms and subject to the conditions set forth in
this Agreement, each of the parties agrees to use all reasonable efforts to
take, or cause to be taken, all actions, and to do, or cause to be done, and to
assist and cooperate with the other parties in doing, all things necessary,
proper or advisable to consummate and make effective, in the most expeditious
manner practicable, the Merger and the other transactions contemplated by this
Agreement, including using reasonable efforts to accomplish the following: (i)
the taking of all reasonable acts necessary to cause the conditions precedent
set forth in Article VI to be satisfied, (ii) the obtaining of all necessary
actions or nonactions, waivers, consents, approvals, orders and authorizations
from Governmental Entities and the making of all necessary registrations,
declarations and filings (including registrations, declarations and filings with
Governmental Entities, if any) and the taking of all reasonable steps as
<PAGE> 51
may be necessary to avoid any suit, claim, action, investigation or proceeding
by any Governmental Entity, (iii) the obtaining of all necessary consents,
approvals or waivers from third parties, (iv) the defending of any suits,
claims, actions, investigations or proceedings, whether judicial or
administrative, challenging this Agreement or the consummation of the
transactions contemplated hereby, including seeking to have any stay or
temporary restraining order entered by any court or other Governmental Entity
vacated or reversed and (v) the execution or delivery of any additional
instruments necessary to consummate the transactions contemplated by, and to
fully carry out the purposes of, this Agreement. In connection with and without
limiting the foregoing, Parent shall not enter into any acquisition which would
be reasonably likely to have the effect of delaying the filing or effectiveness
of the Registration Statement or the filing or mailing of the Prospectus/Proxy
Statement, the holding of either the Company Stockholders' Meeting or Parent
Stockholders' Meeting, or causing the regulatory approvals, consents or
expirations in connection with the Antitrust Filings or Other Filings to be
materially delayed or not obtained. In connection with and without limiting the
foregoing, the Company and its Board of Directors shall, if any state takeover
statute or similar statute or regulation is or becomes applicable to the Merger,
this Agreement or any of the transactions contemplated by this Agreement, use
all reasonable efforts to ensure that the Merger and the other transactions
contemplated by this Agreement may be consummated as promptly as practicable on
the terms contemplated by this Agreement and otherwise to minimize the effect of
such statute or regulation on the Merger, this Agreement and the transactions
contemplated hereby. Notwithstanding anything herein to the contrary, nothing in
this Agreement shall be deemed to require Parent or the Company or any
subsidiary or affiliate thereof to agree to any divestiture by itself or any of
its affiliates of shares of capital stock or of any business, assets or
property, or the imposition of any material limitation on the ability of any of
them to conduct their businesses or to own or exercise control of such assets,
properties and stock.
(b) The Company shall give prompt notice to Parent of any
representation or warranty made by it contained in this Agreement becoming
untrue or inaccurate, or any failure of the Company to comply with or satisfy in
any material respect any covenant, condition or agreement to be complied with or
satisfied by it under this Agreement, in each case, such that the conditions set
forth in Section 6.3(a) or 6.3(b) would not be satisfied, provided, however,
that no such notification shall affect the representations, warranties,
covenants or agreements of the parties or the conditions to the obligations of
the parties under this Agreement.
(c) Parent shall give prompt notice to the Company of any
representation or warranty made by it or Merger Sub contained in this Agreement
becoming untrue or inaccurate, or any failure of Parent or Merger Sub to comply
with or satisfy in any material respect any covenant, condition or agreement to
be complied with or satisfied by it under this Agreement, in each case, such
that the conditions set forth in Section 6.2(a) or 6.2(b) would not be
satisfied, provided, however, that no such notification shall affect the
representations, warranties, covenants or agreements of the parties or the
conditions to the obligations of the parties under this Agreement.
5.8 Third Party Consents. As soon as practicable following the date
hereof, Parent and
<PAGE> 52
the Company will each use its commercially reasonable efforts to obtain any
consents, waivers and approvals under any of its or its subsidiaries' respective
agreements, contracts, licenses or leases required to be obtained in connection
with the consummation of the transactions contemplated hereby.
5.9 Stock Options and Employee Benefits; Warrants.
(a) At the Effective Time, each then outstanding Company
Option, whether or not exercisable at the Effective Time and regardless of the
respective exercise prices thereof, will be assumed by Parent. Each Company
Option so assumed by Parent under this Agreement will continue to have, and be
subject to, the same terms and conditions set forth in the applicable Company
Stock Option Plan (and any applicable stock option agreement for such Company
Option) immediately prior to the Effective Time (including, without limitation,
any repurchase rights or vesting provisions), except that (i) each Company
Option will be exercisable (or will become exercisable in accordance with its
terms) for that number of whole shares of Parent Common Stock equal to the
product of the number of shares of Company Common Stock that were issuable upon
exercise of such Company Option immediately prior to the Effective Time
multiplied by the Exchange Ratio, rounded to the nearest whole number of shares
of Parent Common Stock and (ii) the per share exercise price for the shares of
Parent Common Stock issuable upon exercise of such assumed Company Option will
be equal to the quotient determined by dividing the exercise price per share of
Company Common Stock at which such Company Option was exercisable immediately
prior to the Effective Time by the Exchange Ratio, rounded to the nearest whole
cent. Each assumed Company Option shall be vested immediately following the
Effective Time as to the same percentage of the total number of shares subject
thereto as it was vested as to immediately prior to the Effective Time. As soon
as reasonably practicable, but in no event more than 20 days after the Effective
Time, Parent will issue to each person who holds an assumed Company Option, a
document in form and substance reasonably satisfactory to Company evidencing the
foregoing assumption of such Company Option by Parent.
(b) It is intended that Company Options assumed by Parent
shall qualify following the Effective Time as incentive stock options as defined
in Section 422 of the Code to the extent Company Options qualified as incentive
stock options immediately prior to the Effective Time and the provisions of this
Section 5.9 shall be applied consistent with such intent.
(c) At the Effective Time, each outstanding purchase right
with respect to all open Offering Periods under the Company Purchase Plan (each
an "ASSUMED PURCHASE RIGHT") shall be assumed by Parent. Each Assumed Purchase
Right shall continue to have, and be subject to, the terms and conditions set
forth in the Company Purchase Plan and the documents governing the Assumed
Purchase Right, except that the purchase price of such shares of Parent Common
Stock for each respective Purchase Date under each Assumed Purchase Right shall
be the lower of (i) the quotient determined by dividing eighty-five percent
(85%) of the fair market value of the Company Common Stock on the Offering Date
of each assumed Offering Period by the Exchange Ratio or (ii)
<PAGE> 53
eighty-five percent (85%) of the fair market value of the Parent Common Stock on
each Purchase Date of each assumed Offering Period occurring after the Effective
Time (with the number of shares rounded down to the nearest whole share and the
purchase price rounded up to the nearest whole cent). The Assumed Purchase
Rights shall be exercised at such times following the Effective Time as set
forth in the Company Purchase Plan, and each participant shall, accordingly, be
issued shares of Parent Common Stock at such times. The Company Purchase Plan
shall terminate with the exercise of the last Assumed Purchase Right, and no
additional purchase rights shall be granted under the Company Purchase Plan
following the Effective Time. Parent agrees that from and after the Effective
Time, employees of the Company may participate in Parent's employee stock
purchase plan, subject to the terms and conditions of such plan. Capitalized
terms in this Section 5.9(c) if not otherwise defined in this Agreement, have
the meanings ascribed to them in the Company Purchase Plan.
(d) Prior to the date hereof, the Company shall have granted
stock options pursuant to the Company Stock Option Plans to purchase a number of
shares of Company Common Stock equal in the aggregate to 2,000,000 divided by
the Exchange Ratio (as appropriately adjusted for stock splits and the like) to
such persons and in such amounts as to which Parent shall have agreed, with
strike prices equal to the fair market value of the Company Common Stock at the
time of grant and otherwise with vesting schedules and other terms and
conditions consistent with past practice. Such options shall be granted only to
employees of the Company who, in the good faith judgment of the Company's Board
of Directors, have not previously received options from the Company in a
reasonable and customary amount sufficient to provide adequate incentive to such
employees in connection with their service on behalf of the Company. In
addition, all stock option grants made pursuant to this Section 5.9(d) will
constitute reasonable compensation for personal services to be rendered by the
recipients thereof on or after the Effective Time, and such granted options
shall not exceed the amount of options that would be granted to a similarly
situated employee after the Effective Time.
(e) At the Effective Time, each then outstanding warrant to
purchase shares of Company Common Stock or Series E-3 Preferred Stock (each a
"COMPANY WARRANT"), whether or not exercisable, will be assumed by Parent. Each
Company Warrant so assumed by Parent under this Agreement will continue to have,
and be subject to, the same terms and conditions set forth in the applicable
Company Warrant immediately prior to the Effective Time (including, without
limitation, any vesting, expiration or termination provisions), except that (i)
each Company Warrant will be exercisable (or will become exercisable in
accordance with its terms) for that number of whole shares of Parent Common
Stock equal to the product of the number of shares of Company Common Stock or
Series E-3 Preferred Stock that were issuable upon exercise of such Company
Warrant immediately prior to the Effective Time multiplied by the Exchange
Ratio, rounded to the nearest whole number of shares of Parent Common Stock and
(ii) the per share exercise price for the shares of Parent Common Stock issuable
upon exercise of such assumed Company Warrant will be equal to the quotient
determined by dividing the exercise price per share of Company Common Stock or
Series E-3 Preferred Stock at which such Company Warrant was exercisable
immediately prior to the Effective Time by the Exchange Ratio, rounded to the
nearest whole cent. Parent agrees to reserve
<PAGE> 54
for issuance a sufficient number of shares of Parent Common Stock in respect of
all Company Options and Company Warrants assumed and converted hereunder.
5.10 Form S-8. Parent agrees to file a registration statement on Form
S-8 for the shares of Parent Common Stock issuable with respect to assumed
Company Options as soon as is reasonably practicable after the Effective Time
and shall maintain the effectiveness of such registration statement thereafter
for so long as any of such options or other rights remain outstanding.
5.11 Indemnification.
(a) From and after the Effective Time, Parent will, and will
cause the Surviving Corporation to, fulfill and honor in all respects the
obligations of the Company pursuant to any indemnification agreements between
the Company and its directors and officers as of the Effective Time (the
"INDEMNIFIED PARTIES"). The Certificate of Incorporation and Bylaws of the
Surviving Corporation will contain provisions with respect to exculpation and
indemnification that are at least as favorable to the Indemnified Parties as
those contained in the Certificate of Incorporation and Bylaws of the Company as
in effect on the date hereof, which provisions will not be amended, repealed or
otherwise modified for a period of six years from the Effective Time in any
manner that would adversely affect the rights thereunder of individuals who,
immediately prior to the Effective Time, were directors, officers, employees or
agents of the Company, unless such modification is required by law.
(b) For a period of six years after the Effective Time, Parent
will cause the Surviving Corporation to use its commercially reasonable efforts
to maintain in effect, if available, directors' and officers' liability
insurance covering those persons who are currently covered by the Company's
directors' and officers' liability insurance policy on terms comparable to those
applicable to the current directors and officers of the Company; provided,
however, that in no event will Parent or the Surviving Corporation be required
to expend in excess of 150% of the annual premium currently paid by the Company
for such coverage (or such coverage as is available for such 150% of such annual
premium).
5.12 Board of Directors of Parent. The Board of Directors of Parent
will take all actions necessary such that one member of the Company's Board of
Directors reasonably acceptable to the Company and Parent shall be appointed to
Parent's Board of Directors (but not as a Series B Common Stock director) with a
term expiring at the next annual meeting of Parent's stockholders and shall
include such person in the slate of nominees recommended by Parent's Board of
Directors to the stockholders of Parent at such annual meeting. In addition, for
a period of one year following the Effective Time, Parent shall give one
additional member of the Company's Board of Directors reasonably acceptable to
the Company and Parent copies of all notices, minutes, consents and other
material that Parent provides to members of its Board of Directors, and shall
permit such person to attend each meeting of Parent's Board of Directors;
provided, however, that (i) Parent reserves the right to exclude such person
from access to any material or meeting or portion thereof if Parent believes
that such exclusion is reasonably necessary to preserve the attorney-client
privilege, to
<PAGE> 55
protect highly confidential proprietary information or for other similar reasons
and (ii) all obligations of Parent pursuant to this sentence shall be contingent
upon such person executing a non-disclosure agreement satisfactory to Parent.
5.13 Nasdaq Listing. Prior to the Effective Time, Parent agrees to
authorize for listing on Nasdaq the shares of Parent Common Stock issuable, and
those required to be reserved for issuance, in connection with the Merger, upon
official notice of issuance.
5.14 Company Affiliates; Restrictive Legend. Parent will give stop
transfer instructions to its transfer agent with respect to any Parent Common
Stock received pursuant to the Merger by any stockholder of the Company who may
reasonably be deemed to be an affiliate of the Company within the meaning of
Rule 145 promulgated under the Securities Act and there will be placed on the
certificates representing such Parent Common Stock, or any substitutions
therefor, a legend stating in substance:
"THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A
TRANSACTION TO WHICH RULE 145 PROMULGATED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, APPLIES AND MAY ONLY BE TRANSFERRED (A) IN CONFORMITY
WITH RULE 145(d) UNDER SUCH ACT, (B) IN ACCORDANCE WITH A WRITTEN
OPINION OF COUNSEL, REASONABLY ACCEPTABLE TO THE ISSUER IN FORM AND
SUBSTANCE THAT SUCH TRANSFER IS EXEMPT FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
5.15 Certain Employee Benefits. As soon as practicable after the
execution of this Agreement, the Company and Parent shall confer and work
together in good faith to agree upon mutually acceptable employee benefit and
compensation arrangements (and terminate Company Employee Plans immediately
prior to the Effective Time if appropriate) so as to provide benefits to Company
employees generally equivalent in the aggregate to those provided to similarly
situated employees of Parent. In addition, the Company agrees that it and its
subsidiaries shall terminate any and all severance, separation, retention and
salary continuation plans, programs or arrangements (other than contractual
agreements disclosed on the Company Schedules) prior to the Effective Time.
ARTICLE VI
CONDITIONS TO THE MERGER
6.1 Conditions to Obligations of Each Party to Effect the Merger. The
respective obligations of each party to this Agreement to effect the Merger
shall be subject to the satisfaction at or prior to the Closing Date of the
following conditions:
(a) Company Stockholder Approval. This Agreement shall have
been approved and adopted, and the Merger shall have been duly approved, by the
requisite vote under applicable law, by the stockholders of the Company.
<PAGE> 56
(b) Parent Stockholder Approval.
(i) The issuance of the shares of Parent Common Stock
pursuant to the Merger shall have been duly approved by the requisite vote of
the stockholders of the Parent under applicable Nasdaq rules; and
(ii) an amendment to Parent's Certificate of
Incorporation to increase the authorized number of shares of Parent Common Stock
so as to permit the transactions contemplated hereby, subject to and upon
consummation of the Merger, shall have been duly approved by the requisite vote
of the stockholders of Parent under Delaware Law and Parent's Certificate of
Incorporation and other charter documents.
(c) Registration Statement Effective; Proxy Statement. The SEC
shall have declared the Registration Statement effective. No stop order
suspending the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose, and no similar
proceeding in respect of the Prospectus/Proxy Statement, shall have been
initiated or threatened in writing by the SEC.
(d) No Order; HSR Act. No Governmental Entity shall have
enacted, issued, promulgated, enforced or entered any statute, rule, regulation,
executive order, decree, injunction or other order (whether temporary,
preliminary or permanent) which is in effect and which has the effect of making
the Merger illegal or otherwise prohibiting consummation of the Merger. All
waiting periods, if any, under the HSR Act relating to the transactions
contemplated hereby will have expired or terminated early and all material
foreign antitrust approvals required to be obtained prior to the Merger in
connection with the transactions contemplated hereby shall have been obtained.
(e) Tax Opinions. Parent and the Company shall each have
received written opinions from their respective tax counsel (Wilson Sonsini
Goodrich & Rosati, Professional Corporation, and Fenwick & West LLP,
respectively), in form and substance reasonably satisfactory to them, to the
effect that the Merger will constitute a tax-free reorganization within the
meaning of Section 368(a) of the Code and such opinions shall not have been
withdrawn; provided, however, that if the counsel to either Parent or the
Company does not render such opinion, this condition shall nonetheless be deemed
to be satisfied with respect to such party if counsel to the other party renders
such opinion to such party. The parties to this Agreement agree to make such
reasonable representations as requested by such counsel for the purpose of
rendering such opinions.
(f) Nasdaq Listing. The shares of Parent Common Stock to be
issued in the Merger shall have been authorized for listing on Nasdaq, subject
to notice of issuance.
(g) Amendment of Parent's Certificate of Incorporation. An
amendment to Parent's Certificate of Incorporation to increase the authorized
number of shares of Parent Common Stock so as to permit the transactions
contemplated hereby shall have been duly filed with the Delaware Secretary of
State.
<PAGE> 57
6.2 Additional Conditions to Obligations of the Company. The obligation
of the Company to consummate and effect the Merger shall be subject to the
satisfaction at or prior to the Closing Date of each of the following
conditions, any of which may be waived, in writing, exclusively by the Company:
(a) Representations and Warranties. Each representation and
warranty of Parent and Merger Sub contained in this Agreement (i) shall have
been true and correct as of the date of this Agreement and (ii) shall be true
and correct on and as of the Closing Date with the same force and effect as if
made on the Closing Date except, (A) in each case, or in the aggregate, as does
not constitute a Material Adverse Effect on Parent or Merger Sub at the Closing
Date; provided, however, such Material Adverse Effect qualification shall be
inapplicable with respect to the representations and warranties contained in
Sections 3.2(a) and (b), 3.3, 3.16 and 3.17 (which representations shall be true
and correct at the applicable times in all material respects), and (B) for those
representations and warranties which address matters only as of a particular
date (which representations shall have been true and correct (subject to the
qualifications set forth in the preceding clause (A)) as of such particular
date) (it being understood that, for purposes of determining the accuracy of
such representations and warranties, any update of or modification to the Parent
Schedules made or purported to have been made after the execution of this
Agreement shall be disregarded). The Company shall have received a certificate
with respect to the foregoing signed on behalf of Parent by an authorized
officer of Parent.
(b) Agreements and Covenants. Parent and Merger Sub shall have
performed or complied in all material respects with all agreements and covenants
required by this Agreement to be performed or complied with by them on or prior
to the Closing Date, and the Company shall have received a certificate to such
effect signed on behalf of Parent by an authorized officer of Parent.
(c) Material Adverse Effect. No Material Adverse Effect with
respect to Parent, taken as a whole with its subsidiaries, shall have occurred
since the date of this Agreement and be continuing.
6.3 Additional Conditions to the Obligations of Parent and Merger Sub.
The obligations of Parent and Merger Sub to consummate and effect the Merger
shall be subject to the satisfaction at or prior to the Closing Date of each of
the following conditions, any of which may be waived, in writing, exclusively by
Parent:
(a) Representations and Warranties. Each representation and
warranty of the Company contained in this Agreement (i) shall have been true and
correct as of the date of this Agreement and (ii) shall be true and correct on
and as of the Closing Date with the same force and effect as if made on and as
of the Closing Date except (A) in each case, or in the aggregate, as does not
constitute a Material Adverse Effect on the Company at the Closing Date;
provided, however, such Material Adverse Effect qualification shall be
inapplicable with respect to the representations and warranties contained in
Sections 2.2(a) and (b), 2.3, 2.19, 2.20 and 2.21 (which representations shall
be true and correct at the applicable times in all material respects), and (B)
for those
<PAGE> 58
representations and warranties which address matters only as of a particular
date (which representations shall have been true and correct (subject to the
qualifications set forth in the preceding clause (A)) as of such particular
date) (it being understood that, for purposes of determining the accuracy of
such representations and warranties, any update of or modification to the
Company Schedules made or purported to have been made after the execution of
this Agreement shall be disregarded). Parent shall have received a certificate
with respect to the foregoing signed on behalf of the Company by an authorized
officer of the Company.
(b) Agreements and Covenants. The Company shall have performed
or complied in all material respects with all agreements and covenants required
by this Agreement to be performed or complied with by it at or prior to the
Closing Date, and Parent shall have received a certificate to such effect signed
on behalf of the Company by the Chief Executive Officer and the Chief Financial
Officer of the Company.
(c) Material Adverse Effect. No Material Adverse Effect with
respect to the Company, taken as a whole with its subsidiaries, shall have
occurred since the date of this Agreement and be continuing.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
7.1 Termination. This Agreement may be terminated at any time prior to
the Effective Time, whether before or after the requisite approvals of the
stockholders of the Company or Parent:
(a) by mutual written consent duly authorized by the Boards of
Directors of Parent and the Company;
(b) by either the Company or Parent if the Merger shall not
have been consummated by September 30, 1999 (the "END DATE") for any reason;
provided, however, that the right to terminate this Agreement under this Section
7.1(b) shall not be available to any party whose action or failure to act has
been a principal cause of or resulted in the failure of the Merger to occur on
or before such date and such action or failure to act constitutes a material
breach of this Agreement;
(c) by either the Company or Parent if a Governmental Entity
shall have issued an order, decree or ruling or taken any other action, in any
case having the effect of permanently restraining, enjoining or otherwise
prohibiting the Merger, which order, decree, ruling or other action is final and
nonappealable;
(d) by the Company or Parent if the required approval of the
stockholders of Parent contemplated by this Agreement shall not have been
obtained by reason of the failure to
<PAGE> 59
obtain the required vote at a meeting of Parent stockholders duly convened
therefor or at any adjournment thereof; provided, however, that the right to
terminate this Agreement under this Section 7.1(d) shall not be available to
Parent where the failure to obtain Parent stockholder approval shall have been
caused by (i) the action or failure to act of Parent and such action or failure
to act constitutes a material breach by Parent of this Agreement or (ii) a
breach by TCI of its Parent Voting Agreement.
(e) by the Company or Parent if the required approval of the
stockholders of the Company contemplated by this Agreement shall not have been
obtained by reason of the failure to obtain the required vote at a meeting of
the Company stockholders duly convened therefore or at any adjournment thereof;
provided, however, that the right to terminate this Agreement under this Section
7.1(e) shall not be available to the Company where the failure to obtain the
Company stockholder approval shall have been caused by (i) the action or failure
to act of the Company and such action or failure to act constitutes a material
breach by the Company of this Agreement or (ii) a breach of any Company Voting
Agreement by any party thereto other than Parent.
(f) by Parent (at any time prior to the adoption and approval
of this Agreement and the Merger by the required vote of the stockholders of the
Company) if a Company Triggering Event (as defined below) shall have occurred;
(g) by the Company, upon a breach of any representation,
warranty, covenant or agreement on the part of Parent set forth in this
Agreement, or if any representation or warranty of Parent shall have become
untrue, in either case such that the conditions set forth in Section 6.2(a) or
Section 6.2(b) would not be satisfied as of the time of such breach or as of the
time such representation or warranty shall have become untrue, provided that if
such inaccuracy in Parent's representations and warranties or breach by Parent
is curable by Parent through the exercise of its commercially reasonable
efforts, then the Company may not terminate this Agreement under this Section
7.1(g) prior to the End Date, provided Parent continues to exercise commercially
reasonable efforts to cure such breach (it being understood that the Company may
not terminate this Agreement pursuant to this paragraph (g) if it shall have
materially breached this Agreement or if such breach by Parent is cured prior to
the End Date);
(h) by Parent, upon a breach of any representation, warranty,
covenant or agreement on the part of the Company set forth in this Agreement, or
if any representation or warranty of the Company shall have become untrue, in
either case such that the conditions set forth in Section 6.3(a) or Section
6.3(b) would not be satisfied as of the time of such breach or as of the time
such representation or warranty shall have become untrue, provided, that if such
inaccuracy in the Company's representations and warranties or breach by the
Company is curable by the Company through the exercise of its commercially
reasonable efforts, then Parent may not terminate this Agreement under this
Section 7.1(h) prior to the End Date, provided the Company continues to exercise
commercially reasonable efforts to cure such breach (it being understood that
Parent may not terminate this Agreement pursuant to this paragraph (h) if it
shall have materially breached this Agreement or if such breach by the Company
is cured prior to the End Date).
<PAGE> 60
For the purposes of this Agreement, a "COMPANY TRIGGERING EVENT" shall
be deemed to have occurred if: (i) the Board of Directors of the Company or any
committee thereof shall for any reason have withdrawn or shall have amended or
modified in a manner adverse to Parent its unanimous recommendation in favor of,
the adoption and approval of the Agreement or the approval of the Merger; (ii)
the Company shall have failed to include in the Prospectus/Proxy Statement the
unanimous recommendation of the Board of Directors of the Company in favor of
the adoption and approval of the Agreement and the approval of the Merger; (iii)
the Board of Directors of the Company fails to reaffirm its unanimous
recommendation in favor of the adoption and approval of the Agreement and the
approval of the Merger within ten (10) days after Parent requests in writing
that such recommendation be reaffirmed; (iv) the Board of Directors of the
Company or any committee thereof shall have approved or recommended any
Acquisition Proposal; or (v) a tender or exchange offer relating to securities
of the Company shall have been commenced by a Person unaffiliated with Parent
and the Company shall not have sent to its securityholders pursuant to Rule
14e-2 promulgated under the Securities Act, within ten (10) business days after
such tender or exchange offer is first published, sent or given, a statement
disclosing that the Company recommends rejection of such tender or exchange
offer.
7.2 Notice of Termination; Effect of Termination. Any termination of
this Agreement under Section 7.1 above will be effective immediately upon the
delivery of a valid written notice of the terminating party to the other parties
hereto. In the event of the termination of this Agreement as provided in Section
7.1, this Agreement shall be of no further force or effect, except (i) as set
forth in Section 5.4(a), this Section 7.2, Section 7.3 and Article 8
(miscellaneous), each of which shall survive the termination of this Agreement,
and (ii) nothing herein shall relieve any party from liability for any willful
breach of this Agreement. No termination of this Agreement shall affect the
obligations of the parties contained in the Confidentiality Agreement, all of
which obligations shall survive termination of this Agreement in accordance with
their terms.
7.3 Fees and Expenses.
(a) General. Except as set forth in this Section 7.3, all fees
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expenses whether
or not the Merger is consummated; provided, however, that Parent and the Company
shall share equally all fees and expenses, other than attorneys' and accountants
fees and expenses, incurred in relation to the printing and filing (with the
SEC) of the Prospectus/Proxy Statement (including any preliminary materials
related thereto) and the Registration Statement (including financial statements
and exhibits) and any amendments or supplements thereto.
(b) Company Payments. In the event that this Agreement is
terminated by Parent or the Company, as applicable, pursuant to Sections 7.1(b),
(e) or (f), the Company shall promptly, but in no event later than two days
after the date of such termination, pay Parent a fee equal to $200
<PAGE> 61
million in immediately available funds (the "TERMINATION FEE"); provided, that
in the case of termination under Section 7.1(b) or 7.1(e), (i) such payment
shall be made only if following the date hereof and prior to the termination of
this Agreement, a third party has publicly announced an Acquisition Proposal and
within 12 months following the termination of this Agreement a Company
Acquisition (as defined below) is consummated or the Company enters into an
agreement providing for a Company Acquisition and (ii) such payment shall be
made promptly, but in no event later than two days after the consummation of
such Company Acquisition or the entry by the Company into such agreement. The
Company acknowledges that the agreements contained in this Section 7.3(b) are an
integral part of the transactions contemplated by this Agreement, and that,
without these agreements, Parent would not enter into this Agreement;
accordingly, if the Company fails to pay in a timely manner the amounts due
pursuant to this Section 7.3(b) , and, in order to obtain such payment, Parent
makes a claim that results in a judgment against the Company for the amounts set
forth in this Section 7.3(b), the Company shall pay to Parent its reasonable
costs and expenses (including reasonable attorneys' fees and expenses) in
connection with such suit, together with interest on the amounts set forth in
this Section 7.3(b) at the prime rate of The Chase Manhattan Bank in effect on
the date such payment was required to be made. Payment of the fees described in
this Section 7.3(b) shall not be in lieu of damages incurred in the event of
breach of this Agreement. For the purposes of this Agreement "COMPANY
ACQUISITION" shall mean any of the following transactions (other than the
transactions contemplated by this Agreement); (i) a merger, consolidation,
business combination, recapitalization, liquidation, dissolution or similar
transaction involving the Company pursuant to which the stockholders of the
Company immediately preceding such transaction hold less than 50% of the
aggregate equity interests in the surviving or resulting entity of such
transaction, (ii) a sale or other disposition by the Company of assets
representing in excess of 50% of the aggregate fair market value of the
Company's business immediately prior to such sale or (iii) the acquisition by
any person or group (including by way of a tender offer or an exchange offer or
issuance by the Company), directly or indirectly, of beneficial ownership or a
right to acquire beneficial ownership of shares representing in excess of 50% of
the voting power of the then outstanding shares of capital stock of the Company.
7.4 Amendment. Subject to applicable law, this Agreement may be amended
by the parties hereto at any time by execution of an instrument in writing
signed on behalf of each of Parent and the Company.
7.5 Extension; Waiver. At any time prior to the Effective Time any
party hereto may, to the extent legally allowed, (i) extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
(ii) waive any inaccuracies in the representations and warranties made to such
party contained herein or in any document delivered pursuant hereto and (iii)
waive compliance with any of the agreements or conditions for the benefit of
such party contained herein. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party. Delay in exercising any right under this
Agreement shall not constitute a waiver of such right.
<PAGE> 62
ARTICLE VIII
GENERAL PROVISIONS
8.1 Non-Survival of Representations and Warranties. The representations
and warranties of the Company, Parent and Merger Sub contained in this Agreement
shall terminate at the Effective Time, and only the covenants that by their
terms survive the Effective Time shall survive the Effective Time.
8.2 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or by commercial
delivery service, or sent via telecopy (receipt confirmed) to the parties at the
following addresses or telecopy numbers (or at such other address or telecopy
numbers for a party as shall be specified by like notice):
(a) if to Parent or Merger Sub, to:
At Home Corporation
425 Broadway Street
Redwood City, California 94063
Attention: Chief Executive Officer
Telephone No.: (650) 569-5000
Telecopy No.: (650) 596-5100
with a copy to:
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
Attention: Larry W. Sonsini
Marty W. Korman
Todd Cleary
Telephone No.: (650) 493-9300
Telecopy No.: (650) 493-6811
(b) if to the Company, to:
Excite, Inc.
555 Broadway
Redwood City, California 94063
Attention: Chief Executive Officer
Telephone No.: (650) 568-6000
Telecopy No.: (650) 568-6030
<PAGE> 63
with a copy to:
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
Attention: Mark C. Stevens
Douglas N. Cogen
Telephone No.: (650) 494-0600
Telecopy No.: (650) 494-1417
8.3 Interpretation; Knowledge.
(a) When a reference is made in this Agreement to Exhibits,
such reference shall be to an Exhibit to this Agreement unless otherwise
indicated. When a reference is made in this Agreement to Sections, such
reference shall be to a Section of this Agreement unless otherwise indicated the
words "INCLUDE," "INCLUDES" and "INCLUDING" when used herein shall be deemed in
each case to be followed by the words "without limitation." The table of
contents and headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. When reference is made herein to "THE BUSINESS OF" an entity, such
reference shall be deemed to include the business of all direct and indirect
subsidiaries of such entity. Reference to the subsidiaries of an entity shall be
deemed to include all direct and indirect subsidiaries of such entity. An
exception or disclosure made in the Company Schedules with regard to a
representation of the Company, or in the Parent Schedules with regard to a
representation of Parent or Merger Sub, shall be deemed made with respect to any
other representation by such party to which such exception or disclosure is
clearly relevant.
(b) For purposes of this Agreement the term "KNOWLEDGE" means
with respect to a party hereto, with respect to any matter in question, that any
of the Chief Executive Officer, Chief Financial Officer, General Counsel or
Controller of such party, has actual knowledge of such matter.
(c) For purposes of this Agreement, the term "MATERIAL ADVERSE
EFFECT" when used in connection with an entity means any change, event,
violation, inaccuracy, circumstance or effect that is or is reasonably likely to
be materially adverse to the business, assets (including intangible assets),
capitalization, financial condition or results of operations of such entity
taken as a whole with its subsidiaries, except to the extent that any such
change, event, violation, inaccuracy, circumstance or effect directly and
primarily results from (i) the direct effect of the public announcement,
pendency or consummation of the transactions contemplated hereby on current or
prospective advertisers or sponsors of such entity or revenues therefrom
(provided that the exception in this clause (i) shall not apply to the use of
the term "Material Adverse Effect" in Sections 6.2(a) and 6.3(a) with respect to
the representations and warranties contained in Sections 2.4, 2.7(vii), the
second sentence of 2.9(h), 2.12, 2.14(i), 2.17 and 3.4 hereof), (ii) changes in
general economic
<PAGE> 64
conditions or changes affecting the industry generally in which such entity
operates (provided that such changes do not affect such entity in a
disproportionate manner), (iii) changes in trading prices for such entity's
capital stock or (iv) shareholder class action litigation arising from
allegations of a breach of fiduciary duty relating to this Agreement.
(d) For purposes of this Agreement, the term "PERSON" shall
mean any individual, corporation (including any non-profit corporation), general
partnership, limited partnership, limited liability partnership, joint venture,
estate, trust, company (including any limited liability company or joint stock
company), firm or other enterprise, association, organization, entity or
Governmental Entity.
8.4 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
8.5 Entire Agreement; Third Party Beneficiaries. This Agreement and the
documents and instruments and other agreements among the parties hereto as
contemplated by or referred to herein, including the Company Schedules and the
Parent Schedules (a) constitute the entire agreement among the parties with
respect to the subject matter hereof and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof, it being understood that the Confidentiality Agreement
shall continue in full force and effect until the Closing and shall survive any
termination of this Agreement; and (b) are not intended to confer upon any other
person any rights or remedies hereunder, except as specifically provided in
Section 5.11.
8.6 Severability. In the event that any provision of this Agreement or
the application thereof, becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this
Agreement will continue in full force and effect and the application of such
provision to other persons or circumstances will be interpreted so as reasonably
to effect the intent of the parties hereto. The parties further agree to replace
such void or unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the extent possible, the economic,
business and other purposes of such void or unenforceable provision.
8.7 Other Remedies; Specific Performance. Except as otherwise provided
herein, any and all remedies herein expressly conferred upon a party will be
deemed cumulative with and not exclusive of any other remedy conferred hereby,
or by law or equity upon such party, and the exercise by a party of any one
remedy will not preclude the exercise of any other remedy. The parties hereto
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to seek an injunction or
<PAGE> 65
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of the United States or any state
having jurisdiction, this being in addition to any other remedy to which they
are entitled at law or in equity.
8.8 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of law thereof.
8.9 Rules of Construction. The parties hereto agree that they have been
represented by counsel during the negotiation and execution of this Agreement
and, therefore, waive the application of any law, regulation, holding or rule of
construction providing that ambiguities in an agreement or other document will
be construed against the party drafting such agreement or document.
8.10 Assignment. No party may assign either this Agreement or any of
its rights, interests, or obligations hereunder without the prior written
approval of the other parties. Any purported assignment in violation of this
Section 8.10 shall be void. Subject to the preceding sentence, this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
8.11 WAIVER OF JURY TRIAL. EACH OF PARENT, THE COMPANY AND MERGER SUB
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE ACTIONS OF PARENT, THE COMPANY OR MERGER SUB
IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.
*****
<PAGE> 66
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized respective officers as of the date first
written above.
AT HOME CORPORATION
By: /s/ THOMAS A. JERMOLUK
------------------------------------
Name: Thomas A. Jermoluk
Title: Chief Executive Officer
COUNTDOWN ACQUISITION CORP.
By: /s/ DAVID G. PINE
------------------------------------
Name: David G. Pine
Title:
EXCITE, INC.
By: /s/ GEORGE BELL
------------------------------------
Name: George Bell
Title: Chief Executive Officer
**** REORGANIZATION AGREEMENT ****
<PAGE> 67
AGREEMENT AND PLAN OF REORGANIZATION
BY AND AMONG
AT HOME CORPORATION
COUNTDOWN ACQUISITION CORP.
AND
EXCITE, INC.
Dated as of January 19, 1999
<PAGE> 68
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
ARTICLE I THE MERGER..............................................................................2
1.1 The Merger......................................................................2
1.2 Effective Time; Closing.........................................................2
1.3 Effect of the Merger............................................................2
1.4 Certificate of Incorporation; Bylaws............................................2
1.5 Directors and Officers..........................................................3
1.6 Effect on Capital Stock.........................................................3
1.7 Surrender of Certificates.......................................................5
1.8 No Further Ownership Rights in Company Capital Stock............................6
1.9 Lost, Stolen or Destroyed Certificates..........................................7
1.10 Tax Consequences................................................................7
1.11 Taking of Necessary Action; Further Action......................................7
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY..........................................7
2.1 Organization of the Company.....................................................7
2.2 Company Capital Structure.......................................................8
2.3 Obligations With Respect to Capital Stock......................................10
2.4 Authority; Non-Contravention...................................................10
2.5 SEC Filings; Company Financial Statements......................................12
2.6 Absence of Certain Changes or Events...........................................13
2.7 Taxes..........................................................................14
2.8 Title to Properties; Absence of Liens and Encumbrances.........................15
2.9 Intellectual Property..........................................................16
2.10 Compliance; Permits; Restrictions..............................................19
2.11 Litigation.....................................................................19
2.12 Brokers' and Finders' Fees.....................................................20
2.13 Transactions with Affiliates...................................................20
2.14 Employee Benefit Plans.........................................................20
2.15 Environmental Matters..........................................................24
2.16 Agreements, Contracts and Commitments..........................................25
2.17 Change of Control Payments.....................................................26
2.18 Disclosure.....................................................................26
2.19 Board Approval.................................................................27
2.20 Fairness Opinion...............................................................27
2.21 Section 203 of the Delaware General Corporation Law and Company Rights
Plan Not Applicable............................................................27
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB..............................27
3.1 Organization of Parent.........................................................28
3.2 Parent Capital Structure.......................................................28
3.3 Obligations With Respect to Capital Stock......................................29
</TABLE>
<PAGE> 69
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
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<S> <C>
3.4 Authority; Non-Contravention...................................................30
3.5 SEC Filings; Parent Financial Statements.......................................31
3.6 Absence of Certain Changes or Events...........................................32
3.7 Taxes..........................................................................33
3.8 Title to Properties; Absence of Liens and Encumbrances.........................34
3.9 Intellectual Property..........................................................35
3.10 Compliance; Permits; Restrictions..............................................36
3.11 Litigation.....................................................................37
3.12 Brokers' and Finders' Fees.....................................................37
3.13 Environmental Matters..........................................................37
3.14 Agreements, Contracts and Commitments..........................................38
3.15 Disclosure.....................................................................38
3.16 Board Approval.................................................................39
3.17 Fairness Opinion...............................................................39
ARTICLE IV CONDUCT PRIOR TO THE EFFECTIVE TIME...................................................39
4.1 Conduct of Business by the Company.............................................39
4.2 Conduct of Business by Parent..................................................42
ARTICLE V ADDITIONAL AGREEMENTS..................................................................43
5.1 Prospectus/Proxy Statement; Registration Statement; Other Filings..............43
5.2 Meeting of Company Stockholders................................................44
5.3 Meeting of Parent Stockholders.................................................46
5.4 Confidentiality; Access to Information.........................................47
5.5 No Solicitation................................................................48
5.6 Public Disclosure..............................................................49
5.7 Reasonable Efforts; Notification...............................................49
5.8 Third Party Consents...........................................................51
5.9 Stock Options and Employee Benefits; Warrants..................................51
5.10 Form S-8.......................................................................53
5.11 Indemnification................................................................53
5.12 Board of Directors of Parent...................................................53
5.13 Nasdaq Listing.................................................................54
5.14 Company Affiliates; Restrictive Legend.........................................54
5.15 Certain Employee Benefits......................................................54
ARTICLE VI CONDITIONS TO THE MERGER..............................................................54
6.1 Conditions to Obligations of Each Party to Effect the Merger...................54
6.2 Additional Conditions to Obligations of the Company............................56
6.3 Additional Conditions to the Obligations of Parent and Merger Sub..............56
</TABLE>
<PAGE> 70
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
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<S> <C>
ARTICLE VII TERMINATION, AMENDMENT AND WAIVER....................................................57
7.1 Termination....................................................................57
7.2 Notice of Termination; Effect of Termination...................................59
7.3 Fees and Expenses..............................................................59
7.4 Amendment......................................................................60
7.5 Extension; Waiver..............................................................60
ARTICLE VIII GENERAL PROVISIONS..................................................................61
8.1 Non-Survival of Representations and Warranties.................................61
8.2 Notices........................................................................61
8.3 Interpretation; Knowledge......................................................62
8.4 Counterparts...................................................................63
8.5 Entire Agreement; Third Party Beneficiaries....................................63
8.6 Severability...................................................................63
8.7 Other Remedies; Specific Performance...........................................63
8.8 Governing Law..................................................................64
8.9 Rules of Construction..........................................................64
8.10 Assignment.....................................................................64
8.11 WAIVER OF JURY TRIAL...........................................................64
</TABLE>
<PAGE> 1
EXHIBIT 2.2
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT dated as of January 19, 1999 (the
"AGREEMENT") is entered into by and between Excite, Inc., a Delaware corporation
(the "COMPANY") and At Home Corporation, a Delaware corporation ("PARENT").
Capitalized terms used in this Agreement but not defined herein shall have the
meanings ascribed thereto in the Merger Agreement (as defined below).
RECITALS
A. Concurrently with the execution and delivery of this Agreement, the
Company, Parent and Countdown Merger Corp., a Delaware corporation and a wholly
owned subsidiary of Parent ("SUB"), are entering into an Agreement and Plan of
Reorganization (the "MERGER AGREEMENT"), which provides that, among other
things, upon the terms and subject to the conditions thereof, the Company and
Parent will enter into a business combination transaction (the "MERGER").
B. As a condition to Parent's willingness to enter into the Merger
Agreement, Parent has requested that the Company agree, and the Company has so
agreed, to grant to Parent an option to acquire shares of the Company's Common
Stock, $0.001 par value (including the associated rights (the "RIGHTS") to
purchase shares of the Company's Preferred Stock pursuant to the Rights
Agreement, dated as of October 15, 1998, between the Company and BankBoston,
N.A., as Rights Agent (the "RIGHTS AGREEMENT")) (together, "COMPANY SHARES"),
upon the terms and subject to the conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein and in the Merger Agreement and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
1. GRANT OF OPTION
The Company hereby grants to Parent an irrevocable option (the
"OPTION") to acquire up to a number of Company Shares equal to 19.9% of the
issued and outstanding shares of common stock of the Company as of the first
date, if any, upon which an Exercise Event (as defined in Section 2(a) below)
shall occur (the "OPTION SHARES"), in the manner set forth below by paying cash
at a price of $106.60 per share (the "EXERCISE PRICE"). All references in this
Agreement to Company Shares issued to Parent hereunder shall be deemed to
include the associated Rights (subject to the terms of the Rights Agreement).
2. EXERCISE OF OPTION; MAXIMUM PROCEEDS
<PAGE> 2
(a) For all purposes of this Agreement, an "EXERCISE EVENT"
shall mean the occurrence of any of (i) a Company Triggering Event (as such term
is defined in the Merger Agreement), (ii) the public announcement of an Option
Acquisition Proposal (as defined below) or (iii) the commencement of a
solicitation within the meaning of Rule 14a-1(l) by any person or entity other
than the Company or its Board of Directors (or any person or entity acting on
behalf of the Company or its Board of Directors) seeking to alter the
composition of the Company's Board of Directors. For purposes of this Agreement,
"OPTION ACQUISITION PROPOSAL" shall mean any offer or proposal (other than an
offer or proposal by Parent) relating to any transaction or series of related
transactions involving: (A) any purchase from the Company or acquisition by any
person or "group" (as defined under Section 13(d) of the Exchange Act and the
rules and regulations thereunder) of more than a 10% interest in the total
outstanding voting securities of the Company or any of its subsidiaries or any
tender offer or exchange offer that if consummated would result in any person or
"group" (as defined under Section 13(d) of the Exchange Act and the rules and
regulations thereunder) beneficially owning 10% or more of the total outstanding
voting securities of the Company or any of its subsidiaries or any merger,
consolidation, business combination or similar transaction involving the
Company; (B) any sale, lease (other than in the ordinary course of business),
exchange, transfer, license (other than in the ordinary course of business),
acquisition or disposition of more than 10% of the assets of the Company; or (C)
any liquidation or dissolution of the Company.
(b) Parent may deliver to the Company a written notice (an
"EXERCISE NOTICE") specifying that it wishes to exercise and close a purchase of
Option Shares at any time following the occurrence of an Exercise Event and
specifying the total number of Option Shares it wishes to acquire. Unless such
Exercise Notice is withdrawn by Parent, the closing of a purchase of Option
Shares (a "CLOSING") specified in such Exercise Notice shall take place at the
principal offices of the Company upon such date prior to the termination of the
Option as may be designated by Parent in writing.
(c) The Option shall terminate upon the earliest to occur of
(i) the Effective Time (as such term is defined in the Merger Agreement), (ii)
termination of the Merger Agreement pursuant to any of Section 7.1(a), 7.1(c),
7.1(d) or 7.1(g) thereof, (iii) termination of the Merger Agreement pursuant to
either of Section 7.1(b) or 7.1(e) thereof if prior thereto no Exercise Event
shall have occurred, or (ii) 18 months following the termination of the Merger
Agreement under any other circumstances; provided, however, that if the Option
is exercisable but cannot be exercised by reason of any applicable government
order or because the waiting period related to the issuance of the Option Shares
under the HSR Act (as such term is defined in the Merger Agreement) shall not
have expired or been terminated, or because any other condition to closing has
not been satisfied, then the Option shall not terminate until the tenth business
day after such impediment to exercise shall have been removed or shall have
become final and not subject to appeal.
(d) If Parent receives proceeds in connection with any sales
or other dispositions of Option Shares or this Option (including by selling
Option Shares to the Company pursuant to
<PAGE> 3
Section 6(a) hereof), plus any dividends (or equivalent distributions under
Section 7(a) hereof) received by Parent declared on Option Shares, of more than
the sum of (x) $35 million plus (y) the Exercise Price multiplied by the number
of Company Shares purchased by Parent pursuant to the Option, then all proceeds
to Parent in excess of such sum shall be promptly remitted in cash by Parent to
the Company.
3. CONDITIONS TO CLOSING
The obligation of the Company to issue Option Shares to Parent
hereunder is subject to the conditions that (a) any waiting period under the HSR
Act applicable to the issuance of the Option Shares hereunder shall have expired
or been terminated; (b) all material consents, approvals, orders or
authorizations of, or registrations, declarations or filings with, any Federal,
state or local administrative agency or commission or other Federal state or
local governmental authority or instrumentality, if any, required in connection
with the issuance of the Option Shares hereunder shall have been obtained or
made, as the case may be; and (c) no preliminary or permanent injunction or
other order by any court of competent jurisdiction prohibiting or otherwise
restraining such issuance shall be in effect. It is understood and agreed that
at any time during which Parent shall be entitled to deliver to the Company an
Exercise Notice, the parties will use their respective reasonable efforts to
satisfy all conditions to Closing, so that a Closing may take place as promptly
as practicable.
4. CLOSING
At any Closing, (a) the Company shall deliver to Parent a single
certificate in definitive form representing the number of Company Shares
designated by Parent in its Exercise Notice consistent with this Agreement, such
certificate to be registered in the name of Parent and to bear the legend set
forth in Section 9 hereof, against delivery of (b) payment by Parent to the
Company of the aggregate purchase price for the Company Shares so designated and
being purchased by delivery of a certified check or bank check in immediately
available funds.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent that (a) the Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has the corporate power and authority to enter into
this Agreement and to carry out its obligations hereunder; (b) the execution and
delivery of this Agreement by the Company and consummation by the Company of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of the Company and no other corporate proceedings
on the part of the Company are necessary to authorize this Agreement or any of
the transactions contemplated hereby; (c) this Agreement has been duly executed
and delivered by the Company and constitutes a legal, valid and binding
obligation of the Company and, assuming this Agreement constitutes a legal,
valid and binding obligation of Parent, is enforceable against the Company in
accordance with its terms, except as enforceability may be limited by principles
of public policy, bankruptcy and by rules of
<PAGE> 4
law governing specific performance, injunctive relief and other equitable
remedies; (d) except for any filings, authorizations, approvals or orders
required under the HSR Act and the filing of a notice on Form 25102(f) pursuant
to the California Corporate Securities Rules and Regulations, the Company has
taken all necessary corporate and other action to authorize and reserve for
issuance and to permit it to issue upon exercise of the Option, and at all times
from the date hereof until the termination of the Option will have reserved for
issuance, a sufficient number of unissued Company Shares for Parent to exercise
the Option in full and will take all necessary corporate or other action to
authorize and reserve for issuance all additional Company Shares or other
securities which may be issuable pursuant to Section 7(a) upon exercise of the
Option, all of which, upon their issuance and delivery in accordance with the
terms of this Agreement and payment therefor by Parent, will be validly issued,
fully paid and nonassessable; (e) upon delivery of the Company Shares and any
other securities to Parent upon exercise of the Option, Parent will acquire such
Company Shares or other securities free and clear of all material claims, liens,
charges, encumbrances and security interests of any kind or nature whatsoever,
excluding those imposed by Parent; (f) the execution and delivery of this
Agreement by the Company do not, and the performance of this Agreement by the
Company will not, (i) violate the Certificate of Incorporation or Bylaws of the
Company, (ii) conflict with or violate any order applicable to the Company or
any of its subsidiaries or by which they or any of their material property is
bound or affected or (iii) result in any breach of or constitute a default (or
an event which with notice or lapse of time or both would become a default)
under, or give rise to any right of termination, amendment, acceleration or
cancellation of, or result in the creation of a material lien or encumbrance on
any material property or assets of the Company or any of its subsidiaries
pursuant to, any material contract or agreement to which the Company or any of
its subsidiaries is a party or by which the Company or any of its subsidiaries
or any of their material property is bound or affected; and (g) the execution
and delivery of this Agreement by the Company does not, and the performance of
this Agreement by the Company will not, require any consent, approval,
authorization or permit of, or filing with, or notification to, any Governmental
Entity (as such term is defined in the Merger Agreement) except pursuant to the
HSR Act.
6. REGISTRATION RIGHTS
(a) Following the termination of the Merger Agreement, Parent
(sometimes referred to herein as the "HOLDER") may by written notice (sometimes
referred to herein as the "REGISTRATION NOTICE") to the Company (the
"REGISTRANT") request the Registrant to register under the Securities Act all or
any part of the shares acquired by the Holder pursuant to this Agreement (such
shares requested to be registered the "REGISTRABLE SECURITIES") in order to
permit the sale or other disposition of such shares pursuant to a bona fide firm
commitment underwritten public offering in which the Holder and the underwriters
shall effect as wide a distribution of such Registrable Securities as is
reasonably practicable and shall use reasonable efforts to prevent any person or
group from purchasing through such offering shares representing more than 1% of
the outstanding shares of Common Stock of the Registrant on a fully diluted
basis (a "PERMITTED OFFERING"); provided, however, that any such Registration
Notice must relate to a number of shares equal to at least 2% of the outstanding
shares of Common Stock of the Registrant on a fully diluted basis and that any
rights to require registration hereunder shall terminate with respect to any
shares
<PAGE> 5
that may be sold pursuant to Rule 144(k) under the Securities Act or at such
time as all of the Registrable Securities may be sold in any three month period
pursuant to Rule 144 under the Securities Act. The Registration Notice shall
include a certificate executed by the Holder and its proposed managing
underwriter, which underwriter shall be an investment banking firm of
internationally recognized standing reasonably acceptable to the Company (the
"MANAGER"), stating that (i) the Holder and the Manager have a good faith
intention to commence a Permitted Offering and (ii) the Manager in good faith
believes that, based on the then prevailing market conditions, it will be able
to sell the Registrable Securities at a per share price equal to at least 80% of
the per share average of the closing sale prices of the Registrant's Common
Stock on the Nasdaq National Market for the twenty trading days immediately
preceding the date of the Registration Notice. The Registrant shall thereupon
have the option exercisable by written notice delivered to the Holder within
five business days after the receipt of the Registration Notice, irrevocably to
agree to purchase all (but not less than all) of the Registrable Securities for
cash at a price (the "OPTION PRICE") equal to the product of (i) the number of
Registrable Securities so purchased and (ii) the per share average of the
closing sale prices of the Registrant's Common Stock on the Nasdaq National
Market for the twenty trading days immediately preceding the date of the
Registration Notice. Any such purchase of Registrable Securities by the
Registrant hereunder shall take place at a closing to be held at the principal
executive offices of the Registrant or its counsel at any reasonable date and
time designated by the Registrant in such notice within 10 business days after
delivery of such notice. The payment for the shares to be purchased shall be
made by delivery at the time of such closing of the Option Price in immediately
available funds.
(b) If the Registrant does not elect to exercise its option to
purchase pursuant to Section 6(a) with respect to all Registrable Securities,
the Registrant shall use all reasonable efforts to effect, as promptly as
practicable, the registration under the Securities Act of the Registrable
Securities requested to be registered in the Registration Notice; provided,
however, that (i) the Holder shall not be entitled to more than an aggregate of
two effective registration statements hereunder, provided however, that if the
Registrant withdraws a filed registration statement at the request of the Holder
(other than as the result of a material change in the Registrant's business or
the Holder's learning of new material information concerning the Registrant),
then such filing shall be deemed to have been an effective registration for
purposes of this clause (i), (ii) the Registrant will not be required to file
any such registration statement during any period of time (not to exceed 45 days
after a Registration Notice in the case of clause (A) below or 90 days after a
Registration Notice in the case of clauses (B) and (C) below) when (A) the
Registrant is in possession of material non-public information which it
reasonably believes would be detrimental to be disclosed at such time and such
information would have to be disclosed if a registration statement were filed at
that time; (B) the Registrant is required under the Securities Act to include
audited financial statements for any period in such registration statement and
such financial statements are not yet available for inclusion in such
registration statement; or (C) the Registrant determines, in its reasonable
judgment, that such registration would interfere with any financing, acquisition
or other material transaction involving the Registrant and (iii) the Registrant
will not be required to maintain the effectiveness of any such registration
statement for a period greater than 60 days. If consummation of the sale of any
Registrable Securities pursuant to a registration hereunder does not occur
within 180 days after the
<PAGE> 6
filing with the SEC of the initial registration statement therefor, the
provisions of this Section 6 shall again be applicable to any proposed
registration. The Registrant shall use all reasonable efforts to cause any
Registrable Securities registered pursuant to this Section 6 to be qualified for
sale under the securities or blue sky laws of such jurisdictions as the Holder
may reasonably request and shall continue such registration or qualification in
effect in such jurisdictions until the Holder has sold or otherwise disposed of
all of the securities subject to the registration statement; provided, however,
that the Registrant shall not be required to qualify to do business in, or
consent to general service of process in, any jurisdiction by reason of this
provision.
(c) The registration rights set forth in this Section 6 are
subject to the condition that the Holder shall provide the Registrant with such
information with respect to the Holder's Registrable Securities, the plan for
distribution thereof, and such other information with respect to the Holder as,
in the reasonable judgment of counsel for the Registrant, is necessary to enable
the Registrant to include in a registration statement all material facts
required to be disclosed with respect to a registration thereunder, including
the identity of the Holder and the Holder's plan of distribution.
(d) A registration effected under this Section 6 shall be
effected at the Registrant's expense, except for underwriting discounts and
commissions and the fees and expenses of counsel to the Holder, and the
Registrant shall use all reasonable efforts to provide to the underwriters such
documentation (including certificates, opinions of counsel and "comfort" letters
from auditors) as are customary in connection with underwritten public offerings
and as such underwriters may reasonably require. In connection with any
registration, the Holder and the Registrant agree to enter into an underwriting
agreement reasonably acceptable to each such party, in form and substance
customary for transactions of this type with the underwriters participating in
such offering.
(e) Indemnification
(i) The Registrant will indemnify the Holder, each of
its directors and officers and each person who controls the Holder within the
meaning of Section 15 of the Securities Act, and each underwriter of the
Registrant's securities, with respect to any registration, qualification or
compliance which has been effected pursuant to this Agreement, against all
expenses, claims, losses, damages or liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such registration,
qualification or compliance, or based on any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading, or any violation by the Registrant of any rule or regulation
promulgated under the Securities Act applicable to the Registrant in connection
with any such registration, qualification or compliance, and the Registrant will
reimburse the Holder and, each of its directors and officers and each person who
controls the Holder within the meaning of Section 15 of the Securities Act,
<PAGE> 7
and each underwriter for any legal and any other expenses reasonably incurred in
connection with investigating, preparing or defending any such claim, loss,
damage, liability or action, provided that the Registrant will not be liable in
any such case to the extent that any such claim, loss, damage, liability or
expense arises out of or is based on any untrue statement or omission or alleged
untrue statement or omission, made in reliance upon and in conformity with
written information furnished to the Registrant by the Holder or director or
officer or controlling person or underwriter seeking indemnification, provided,
however, that the indemnity agreement contained in this subsection 6(e)(i) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Registrant, which consent shall not be unreasonably withheld.
(ii) The Holder will indemnify the Registrant, each
of its directors and officers and each underwriter of the Registrant's
securities covered by such registration statement and each person who controls
the Registrant within the meaning of Section 15 of the Securities Act, against
all claims, losses, damages and liabilities (or actions in respect thereof),
including any of the foregoing incurred in settlement of any litigation,
commenced or threatened, arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or any violation by
the Holder of any rule or regulation promulgated under the Securities Act
applicable to the Holder in connection with any such registration, qualification
or compliance, and will reimburse the Registrant, such directors, officers or
control persons or underwriters for any legal or any other expenses reasonably
incurred in connection with investigating, preparing or defending any such
claim, loss, damage, liability or action, in each case to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Registrant by the Holder
expressly for use therein, provided that in no event shall any indemnity under
this Section 6(e) exceed the gross proceeds of the offering received by the
Holder and provided further that the indemnity agreement contained in this
subsection 6(e)(ii) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Holder, which consent shall not be unreasonably withheld.
(iii) Each party entitled to indemnification under
this Section 6(e) (the "INDEMNIFIED PARTY") shall give notice to the party
required to provide indemnification (the "INDEMNIFYING PARTY") promptly after
such Indemnified Party has actual knowledge of any claim as to which indemnity
may be sought, and shall permit the Indemnifying Party to assume the defense of
any such claim or any litigation resulting therefrom, provided that counsel for
the Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense; provided, however, that the Indemnifying Party
shall pay such expense if representation of the Indemnified Party by
<PAGE> 8
counsel retained by the Indemnifying Party would be inappropriate due to actual
or potential differing interests between the Indemnified Party and any other
party represented by such counsel in such proceeding, and provided further that
the failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under this Section 6(e) unless
the failure to give such notice is materially prejudicial to an Indemnifying
Party's ability to defend such action. No Indemnifying Party, in the defense of
any such claim or litigation shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
to such claim or litigation. No Indemnifying Party shall be required to
indemnify any Indemnified Party with respect to any settlement entered into
without such Indemnifying Party's prior consent (which shall not be unreasonably
withheld).
7. ADJUSTMENT UPON CHANGES IN CAPITALIZATION; RIGHTS PLANS
(a) In the event of any change in the Company Shares by reason
of stock dividends, stock splits, reverse stock splits, mergers (other than the
Merger), recapitalizations, combinations, exchanges of shares and the like, the
type and number of shares or securities subject to the Option and the Exercise
Price shall be adjusted appropriately, and proper provision shall be made in the
agreements governing such transaction so that Parent shall receive, upon
exercise of the Option, the number and class of shares or other securities or
property that Parent would have received in respect of the Company Shares if the
Option had been exercised immediately prior to such event or the record date
therefor, as applicable.
(b) Prior to such time as the Option is terminated, and at any
time after the Option is exercised (in whole or in part, if at all), the Company
shall not amend (nor permit the amendment of) its Rights Agreement nor adopt
(nor permit the adoption of) a new stockholders rights plan that contains
provisions for the distribution or exercise of rights thereunder as a result of
Parent or any affiliate or transferee being the beneficial owner of shares of
the Company by virtue of the Option being exercisable or having been exercised
(or as a result of beneficially owning shares issuable in respect of any Option
Shares).
8. RESTRICTIVE LEGENDS
Each certificate representing Option Shares issued to Parent hereunder
shall include a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY BE REOFFERED OR
SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE. SUCH SECURITIES ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS
ON TRANSFER AS SET FORTH IN THE STOCK OPTION AGREEMENT DATED
<PAGE> 9
AS OF JANUARY 19, 1999, A COPY OF WHICH MAY BE OBTAINED FROM THE
ISSUER.
9. LISTING AND HSR FILING
The Company, upon the request of Parent, shall promptly file an
application to list the Company Shares to be acquired upon exercise of the
Option for quotation on the Nasdaq National Market and shall use its reasonable
efforts to obtain approval of such listing as soon as practicable. Promptly
after the date hereof, each of the parties hereto shall promptly file with the
Federal Trade Commission and the Antitrust Division of the United States
Department of Justice all required premerger notification and report forms and
other documents and exhibits required to be filed under the HSR Act to permit
the acquisition of the Company Shares subject to the Option at the earliest
possible date.
10. BINDING EFFECT
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns. Nothing
contained in this Agreement, express or implied, is intended to confer upon any
person other than the parties hereto and their respective successors and
permitted assigns any rights or remedies of any nature whatsoever by reason of
this Agreement. Certificates representing shares sold in a registered public
offering pursuant to Section 6 shall not be required to bear the legend set
forth in Section 8.
11. SPECIFIC PERFORMANCE
The parties recognize and agree that if for any reason any of the
provisions of this Agreement are not performed in accordance with their specific
terms or are otherwise breached, immediate and irreparable harm or injury would
be caused for which money damages would not be an adequate remedy. Accordingly,
each party agrees that in addition to other remedies the other party shall be
entitled to an injunction restraining any violation or threatened violation of
the provisions of this Agreement. In the event that any action shall be brought
in equity to enforce the provisions of the Agreement, neither party will allege,
and each party hereby waives the defense, that there is an adequate remedy at
law.
12. ENTIRE AGREEMENT
This Agreement and the Merger Agreement (including the appendices and
exhibits thereto) constitute the entire agreement between the parties with
respect to the subject matter hereof and supersede all other prior agreements
and understandings, both written and oral, between the parties with respect to
the subject matter hereof.
13. FURTHER ASSURANCES
<PAGE> 10
Each party will execute and deliver all such further documents and
instruments and take all such further action as may be necessary in order to
consummate the transactions contemplated hereby.
14. VALIDITY
The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of the other provisions of this
Agreement, which shall remain in full force and effect. In the event any
Governmental Entity of competent jurisdiction holds any provision of this
Agreement to be null, void or unenforceable, the parties hereto shall negotiate
in good faith and shall execute and deliver an amendment to this Agreement in
order, as nearly as possible, to effectuate, to the extent permitted by law, the
intent of the parties hereto with respect to such provision.
15. NOTICES
All notices and other communications hereunder shall be in writing and
shall be deemed given if delivered personally or by commercial delivery service,
or sent via telecopy (receipt confirmed) to the parties at the following
addresses or telecopy numbers (or at such other address or telecopy numbers for
a party as shall be specified by like notice):
(a) if to the Company, to:
Excite, Inc.
555 Broadway
Redwood City, California 94063
Telephone: (650) 568-6000
Facsimile: (650) 568-6030
Attn: President and Executive Officer
with a copy to:
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
Telephone: (650) 494-0600
Facsimile: (650) 494-1417
Attn: Mark C. Stevens
Douglas N. Cogen
(b) if to Parent, to:
At Home Corporation
425 Broadway Street
<PAGE> 11
Redwood City, California 94063
Telephone: (650) 569-5000
Facsimile: (650) 596-5100
Attn: President and Executive Officer
with a copy to:
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304-1050
Telephone: (650) 493-9300
Facsimile: (650) 493-6811
Attn: Larry W. Sonsini
Martin W. Korman
Todd Cleary
16. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware applicable to agreements made and to be
performed entirely within such State.
17. COUNTERPARTS
This Agreement may be executed in two counterparts, each of which shall
be deemed to be an original, but both of which, taken together, shall constitute
one and the same instrument.
18. EXPENSES
Except as otherwise expressly provided herein or in the Merger
Agreement, all costs and expenses incurred in connection with the transactions
contemplated by this Agreement shall be paid by the party incurring such
expenses.
19. AMENDMENTS; WAIVER
This Agreement may be amended by the parties hereto and the terms and
conditions hereof may be waived only by an instrument in writing signed on
behalf of each of the parties hereto, or, in the case of a waiver, by an
instrument signed on behalf of the party waiving compliance.
20. ASSIGNMENT
The Company may not sell, transfer, assign or otherwise dispose of any
of its rights or obligations under this Agreement or the Option created
hereunder to any other person, without the express written consent of Parent.
The rights and obligations hereunder shall inure to the benefit of
<PAGE> 12
and be binding upon any successor of a party hereto.
<PAGE> 13
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective duly authorized officers as of the
date first above written.
EXCITE, INC.
By: /s/ GEORGE BELL
------------------------------------
Name: George Bell
Title: Chief Executive Officer
AT HOME CORPORATION
By: /s/ THOMAS A. JERMOLUK
------------------------------------
Name: Thomas A. Jermoluk
Title: Chief Executive Officer
***STOCK OPTION AGREEMENT***
<PAGE> 14
***STOCK OPTION AGREEMENT***
<PAGE> 1
Exhibit 99.1
@Home Network and Excite to Merge
"Excite @Home" Defines Media Network of the Next Century
Combination Will Accelerate and Lower Cost of Broadband Adoption
NEW YORK, NY, January 19, 1999 -- @Home Network and Excite, Inc. today announced
that the companies have signed a definitive merger agreement for an all-stock
transaction valued at approximately $6.7 billion at the time of the
announcement. The combined organizations aim to accelerate broadband deployment
and adoption by combining @Home's broadband technology platform, robust Internet
backbone, and cable distribution agreements representing nearly 60 million homes
worldwide, with Excite's award-winning Web portal and extensive narrowband
reach. Excite and @Home will deliver to consumers the most personalized, open
Internet services at any speed, any time, and on any device they choose.
@Home Network remains committed to full and open access to the entire Web. All
Excite and @Home offerings are built on a commitment to personalized media
services and open access to all the information, community and entertainment of
the Web. Every "Excite @Home" user's rich, personalized experience will include
simple "point and click" access to any and all content and services on the Web.
Under the agreement, @Home Network will issue 1.041902 shares of At Home
Corporation Series A common stock for each share of Excite, Inc. stock. The
purchase transaction, which is expected to close in approximately three months,
has been approved by both companies' Boards of Directors and is subject to
approval by @Home and Excite's stockholders. The acquisition also is subject to
certain customary conditions, including obtaining necessary regulatory
approvals. The agreement also provides @Home Network an option to acquire a
19.9% interest in Excite which becomes exercisable under certain customary
circumstances. With almost no duplication of function, the resulting company
expects to add significantly to its employee base to exploit new opportunities.
At closing, George Bell, CEO of Excite, Inc., will continue in that role as
Excite becomes a subsidiary of @Home, reporting to Tom Jermoluk, chairman and
CEO of @Home Network. In addition, Bell will join the @Home Network Board of
Directors.
A New Communications Company The success and popularity of Web portals
underscores the value of Internet content, communication and community. However,
the biggest barrier to mainstream consumer adoption of the Internet has been the
lack of speed and "always-on" capability. The companies aim to accelerate
broadband adoption by exposing the millions of Excite narrowband users to the
benefits of a media experience enhanced by the broadband platform.
<PAGE> 2
"We are merging with Excite not only for what they have achieved, but what we
become together - the new media network for the 21st century," said Tom
Jermoluk, Chairman and CEO, @Home Network. "The ubiquitous reach of dial-up
access combined with the fast expanding footprint of broadband gives consumers
the ability to seamlessly migrate between services at different speeds and
devices with a consistent interface. Excite and @Home will give consumers access
to the information they want, when they want it, whether they are using a PC,
TV, or any other communications device."
"This merger brings together the leading broadband technology company with a
leader in Internet personalization and media," said George Bell, CEO of Excite,
Inc. "In addition, this combination brings to advertisers the most powerful
interactive marketing solutions available - the ability to target, measure, and
report their advertising in a single, unified venue across narrowband,
broadband, and ultimately all devices."
All Band, All Device, All the Time Through the Excite portal, Excite and @Home
will deliver a consistent personalized interface across narrowband and broadband
services and ultimately multiple display devices. The new company will give
consumers choice over how they access information over various communications
devices such as a pager, PC, or TV, and how they organize and personalize
content. With Excite and @Home, consumers can submit their personal information
and preferences only once and they'll be able reap the benefits of personalized
services across multiple devices and platforms anytime and anywhere.
"On its own and when integrated with the broad range of AT&T communications
services, the @Home and Excite combination will provide the consumer with a
compelling interactive experience full of additional choice and opportunities,"
said C. Michael Armstrong, chairman and CEO of AT&T, which will become a major
stockholder of @Home Network following AT&T's pending acquisition of
Tele-Communications, Inc. (TCI). "This marks a new era of open choice and
capability for consumers. You can count on AT&T WorldNet service, which already
has a business relationship with Excite, to champion this new, 'allband' portal,
while combining it with AT&T's IP and traditional communications services."
Advertising Across All Platforms Through Excite's MatchLogic division, Excite
and @Home will, for the first time, offer advertisers a unified way to target,
measure, and report advertising on all devices on which the Excite and @Home
combination is offered. The new company will combine MatchLogic's unique
marketing skills with the rich media technologies of @Home's recently acquired
Enliven Business Unit (formerly Narrative Communications).
With MatchLogic's direct marketing strengths, Excite and @Home plan to build one
of the largest predictive consumer databases, combining Excite's 20 million
registered users with @Home's service footprint of nearly 60 million homes
worldwide. MatchLogic will continue to build this database and offer its unique
one-to-one marketing services to advertisers on narrowband, broadband and
multiple devices.
<PAGE> 3
About Excite, Inc. (www.excite.com) Excite, Inc. is a global Internet media
company that attracts over 17 million unique consumers monthly to its flagship
portal services, excite.com and webcrawler.com, and specializes in the delivery
of highly targeted marketing solutions through its subsidiary MatchLogic, Inc.
One of the best known brands on the Internet, the Excite brand is now recognized
by more than 50 million Americans. Excite offers services in ten countries and
personalization in four; the company has joint ventures with Itochu for Excite
Japan, Liberty One for Excite Asia-Pacific, Telecom Italia for Excite Italy and
a joint venture with British Telecom for Excite UK. Excite, Inc. (NASDAQ: XCIT),
founded in 1994, is based in Redwood City, California.
@Home Network Based in Redwood City, California, @Home Network (Nasdaq: ATHM)
distributes high-speed, openly accessible Internet and Web services to
residences and businesses using its own network architecture and a variety of
transport options including the cable industry's hybrid-fiber coaxial
infrastructure. The cable connection provides users significant increases in
speed over conventional Internet services. Leveraging the "always on" attributes
of cable, @Home allows for unique multimedia applications that go beyond current
Web experiences. Individuals seeking additional information about availability
and subscription can refer to the @Home Network Web site (www.home.net). Since
its founding in 1995, @Home Network has reached affiliate agreements with
eighteen leading cable companies-worldwide, including Bresnan Communications
Company, Cablevision Systems Corp., CasTel, Century Communications, Charter
Communications, Cogeco Cable Inc., Comcast Corporation, Cox Communications,
Garden State Cable, Insight Communications, InterMedia Partners, Jones
Intercable, Lenfest Communications, Midcontinent Cable Co., Palet Kabelcom,
Rogers Cablesystems Limited, Shaw Communications, and Tele-Communications Inc.
(Early in 1999, TCI's cable operations are expected to merge into AT&T and
thereafter be known as "AT&T Broadband Services"). # # #
The @ logo, @Home, and @Home Network are trademarks of At Home Corporation and
may be registered in certain jurisdictions. All other brands and product names
are trademarks of their respective owners.
Media Contacts:
East Coast East Coast West Coast
Melissa Walia Lynda Lucero Matt Wolfrom
@Home Network Excite, Inc. @Home Network
650/906-8924 650/796-5596 650/569-5193
800/794-0079 (pager) 888/350-6331 (pager)
<PAGE> 4
Investor Contacts:
East Coast West Coast West Coast
Chris Pulnkett/John Buckley Denise Gilbert Ken Goldman
Brainerd Communicators Excite, Inc. SVP/CFO
212/986-6667 650/569-2821 @Home Network
650/569-6060
Editor's Note: NEWS CONFERENCE -- @Home Network and Excite, Inc. will hold a
news conference at 10:00 am ET today at New York Marriott East Side at 49th and
Lexington in New York City. @Home Network Chairman and CEO Tom Jermoluk and
Excite CEO George Bell will co-host the news conference. Reporters who cannot
attend can participate by calling, prior to 10:00 am ET, 1-800-314-7867 for a
live news briefing via phone. Reporters can call in, ask for the @Home
conference call, listen to a summary of the @Home/Excite announcement and
participate in a question and answer session. A replay of the news conference
will be available for 48 hours starting at 2:00 pm EST today at 1-888-203-1112.
The conference ID number is 610146.
Webcast Briefing -- There will be a Webcast available at 10:00 am EST on
Excite.com and Home.net.
SATELLITE COORDINATES - A satellite feed of the news conference is available at
the following coordinates: Ku band satellite TELSTAR 5, transponder 19. Downlink
frequency, 12053 Vertical.
NOTE: Forward looking statements in this release are made pursuant to the safe
harbor provisions of the Private Securities Litigation Reform Act of 1995.
Investors are cautioned that such forward-looking statements involve significant
risks and uncertainties, including and without limitation: risks related to the
consummation of the merger of @Home and Excite; risks involved in assimilating
Excite; risks involved in retaining and motivating key Excite personnel, who are
not subject to noncompetition agreements; risks to @Home of the increased
negative cash flow and increased operating expenses arising out of, among other
items, the proposed Excite merger; risks inherent in Excite's business; risks
related to the achievement of new revenue to @Home from the Excite operations,
including the extremely limited operating history of Excite on which to base any
revenue projection, the likely fluctuations in operating results of Excite due
to factors beyond Excite's or @Home's control and the acceptance by Excite's
advertising customers of the merger; and Excite continuing to serve its existing
customer base of advertisers and agencies in delivering innovative campaigns
across a wide range of publishing sites, platforms, and connection speeds.
Actual results may differ materially due to a number of factors, including:
@Home's ability to integrate Excite's personnel
<PAGE> 5
into @Home's organization; the extent to which @Home develops or acquires other
technologies or services that are similar to Excite's technologies or services,
and the technological, operational and financial challenges associated with the
deployment of Excite's technologies and services; risks related to Excite's
ongoing success, as detailed in Excite's most recent reports on Forms 10-K and
10-Q (as amended), on file with the Securities and Exchange Commission; and
risks related to @Home's ongoing success, as detailed in @Home's filings with
the Securities and Exchange Commission. In particular, see the risk factors
described in @Home's Form S-3 Registration Statement filed on August 12, 1998
and in its Form 10-Q for the quarter ended September 30, 1998. Neither Excite
nor @Home assume any obligation to update the forward-looking information
contained in this press release.
