SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
_______________
SCHEDULE 13D
(Rule 13d-101)
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No._______________) (1)
Excite, Inc.
(Name of Issuer)
Common Stock, no par value
(Title of Class of Securities)
300904 10 90
(CUSIP Number)
George Vradenburg, III, Esquire, General Counsel, America Online, Inc., 22000
AOL Way, Dulles, VA 20166-9323
(703) 448-8700
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
April 3, 1996
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-I (b) (3) or (4), check the following
box [ ]
Note. Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-I (a) for other parties to whom
copies are to be sent.
(Continued on following pages)
(Page 1 of 10 Pages)
[FN]
(1) The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to the subject class
of securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 or otherwise subject to the liabilities of that section of the Act but
shall be subject to all other provisions of the Act (however, see the Notes).
[/FN]
CUSIP No. 300904 10 90 13D Page 2 of 10 Pages
NAME OF REPORTING PERSONS America Online, Inc.
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS 54-1322110
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)
2 (b) X
SEC USE ONLY
3
SOURCE OF FUNDS*
4 OO
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
5 ITEM 2(d) or 2(e)
CITIZENSHIP OR PLACE OF ORGANIZATION
6 Delaware
SOLE VOTING POWER
NUMBER OF 7 1,950,000
SHARES
BENEFICIALLY SHARED VOTING POWER
8 1,330,330
OWNED BY
EACH SOLE DISPOSITIVE POWER
9 1,950,000
REPORTING
PERSON SHARED DISPOSITIVE POWER
10 1,330,330
WITH
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11 3,280,330
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
12 CERTAIN SHARES*
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13 22.52%
TYPE OF REPORTING PERSON*
14 CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 300904 10 90 13D Page 3 of 10
Pages
NAME OF REPORTING PERSONS AOL Ventures, Inc.
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS 54-1797162
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)
2 (b) X
SEC USE ONLY
3
SOURCE OF FUNDS*
4 N/A
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
5 REQUIRED PURSUANT TO ITEM 2(d) or 2(e)
CITIZENSHIP OR PLACE OF ORGANIZATION
6 Delaware
SOLE VOTING POWER
NUMBER OF 7
SHARES
BENEFICIALLY SHARED VOTING POWER
8 1,330,330
OWNED BY
EACH SOLE DISPOSITIVE POWER
9
REPORTING
PERSON SHARED DISPOSITIVE POWER
10 1,330,330
WITH
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
11 PERSON
1,330,330
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
12 EXCLUDES CERTAIN SHARES* X
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13 10.55
TYPE OF REPORTING PERSON*
14 CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Item 1. Security and Issuer
The class of equity securities to which this statement relates is the
Common Stock, no par value (the "Common Stock") of Excite, Inc. ("Excite"), a
corporation located at 1091 N. Shoreline Boulevard, Mountain View, California
94043.
Item 2. Identity and Background
This filing is being made on behalf of America Online, Inc. ("America
Online") and AOL Ventures, Inc. ("AOL Ventures"), a wholly-owned subsidiary of
America Online (collectively referred to as "AOL").
America Online is a Delaware corporation with its principal office at 22000
AOL Way, Dulles, Virginia 20166-9323. America Online is the world's largest
internet online service. Set forth in Schedule A is the name, citizenship,
business or residence address and present principal occupation or employment, as
well as the name and address of any corporation or other organization in which
such occupation or employment is conducted, of each of the directors and
executive officers of America Online, as of the date hereof.
AOL Ventures is a Delaware corporation with its principal office at 22000
AOL Way, Dulles, Virginia 20166-9323. AOL Ventures is a wholly-owned subsidiary
of America Online. Set forth in Schedule B is the name, citizenship, business
or residence address and present principal occupation or employment, as well as
the name and address of any corporation or other organization in which such
occupation or employment is conducted, of each of the directors and executive
officers of AOL Ventures, as of the date hereof.
During the last five years, none of AOL and, to the knowledge of AOL, any
person named in either Schedule A or Schedule B, has been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors), or
has been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction which resulted in them being subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration
Pursuant to the initial public offering by Excite (the "IPO") and
registration of Excite Common Stock under the Securities Exchange Act of 1934,
effective April 3, 1996, shares of Series D Preferred Stock owned by AOL
Ventures were converted into 621,506 shares of Common Stock. At that time, AOL
Ventures also held a warrant convertible into 650,000 shares of Common Stock of
Excite. AOL Ventures purchased in the IPO 58,824 shares of Common Stock.
Under an Acquisition Agreement, a Technology License, Distribution,
Services and Co-Marketing Agreement, and a Transition Agreement that were signed
as of November 25, 1996 and closed no later than March 27, 1997 (collectively,
the "Agreements"), America Online agreed to sell to Excite certain assets
relating to its WebCrawler search and directory service and agreed to provide
certain services to Excite (the "WebCrawler Assets"). In consideration of the
WebCrawler Assets, Excite issued to America Online 1,250,000 and 700,000 shares
of its Series E-1 and Series E-2 Preferred Stock, respectively. In addition, as
part of the Agreements (i) AOL has the right, for a 90-day period following
March 27, 1997, to convert the 680,330 shares of Common Stock beneficially owned
by AOL into an equivalent number of shares of Series E-4 Preferred Stock, (ii)
the AOL Warrant, which previously was exercisable into 650,000 shares of Common
Stock at an exercise price of $8.00 per share, was amended to become exercisable
into 650,000 shares of Series E-3 Preferred Stock at the same exercise price per
share, and was amended, with respect to 325,000 shares of Common Stock, to
expire on September 30, 1997.
Each share of Series E Preferred Stock is convertible into shares of Common
Stock at the option of the holder thereof, with such conversion to occur on a
one-to-one basis, as adjusted for certain events. The holders of outstanding
shares of Series E Preferred Stock are entitled to vote together with the
holders of Common Stock, on an as-converted-to-Common Stock basis. So long as
AOL holds at least 1,315,165 shares of Series E Preferred Stock, AOL shall be
entitled to designate one member of the Board of Directors of Excite. In
addition, the shares of Series E Preferred Stock (and the shares of Common Stock
issuable upon conversion thereof) to be issued to AOL directly, or indirectly
upon exercise of warrants, will be subject to a Voting Trust Agreement. AOL
will also have registration rights with respect to the Series E-3 Preferred
Stock (and Common Stock issuable upon conversion thereof) issuable directly or
indirectly, upon exercise of the AOL Warrant. Within thirty (30) days of March
27, 1997, Excite must use its best efforts to effect a "shelf" registration
statement (and maintain the effectiveness of such registration statement for up
to two years) providing for the resale by AOL of the Common Stock converted from
the Series E-1, E-2, E-3, and E-4 Preferred Stock convertible into shares of
Common Stock (the "Registrable Securities"). Excite has the right to delay the
shelf registration, or the sale of the AOL Registrable Securities under such
shelf registration, for up to 60, 90, or 180 days under certain circumstances.
In addition, upon the request of AOL, Excite must file a registration
statement on Form S-3 during such period that Form S-3 is available to Excite
(an "S-3 Registration") providing for the resale by AOL of the Registrable
Securities, subject to certain conditions. Excite has the right to delay any
such S-3 Registration for up to 60 days under certain circumstances. Excite is
required to effect only two S-3 Registrations. AOL also has certain "piggyback"
registration rights.
Excite's obligation to register AOL Registrable Securities will terminate
upon the earlier of (i) the time that all AOL Registrable Securities have been
registered and sold or (ii) such time as all AOL Registrable Securities held by
AOL may be sold within a three month period under Rule 144.
Item 4. Purpose of Transaction
America Online may, from time to time, depending upon market conditions and
other investment considerations, purchase additional securities of Excite for
investment or dispose of securities of Excite.
See also Item 3. Source and Amount of Funds or Other Considerations.
Item 5. Interest in Securities of the Issuer
America Online owns directly an aggregate of 1,950,000 shares of equity
securities convertible into common stock. Such amount consists of: 1,250,000
shares of Series E-1 Preferred Stock and 700,000 shares of Series E-2 Preferred
Stock. AOL Ventures owns directly an aggregate of 1,330,330 shares of equity
securities constituting or convertible into common stock. Such amount consists
of: 680,330 shares of Excite Common Stock and a Series E-3 Preferred Stock
Warrant held by AOL Ventures that is convertible into 650,000 shares of Series E
- -3 Preferred Stock. AOL Ventures is a wholly-owned subsidiary of America Online
which, as a result, may be deemed to have shared beneficial ownership of the
shares of Common Stock held by AOL Ventures. Each share of Series E Preferred
Stock is convertible into shares of Common Stock at the option of AOL, with such
conversion to occur on a one-to-one basis, as adjusted for certain events. The
outstanding shares of Series E Preferred Stock are entitled to vote together
with the holders of Common Stock, on an as-converted-to-Common Stock basis. The
total 3,280,000 shares of Common Stock (on an as-converted basis) held by
America Online and AOL Ventures constitutes 22.52% of the number of shares of
Common Stock outstanding as of March 31, 1997.
To the knowledge of AOL, no shares of Common Stock or Series E Preferred
Stock are beneficially owned by any of the persons named in either Schedule A or
Schedule B, except for Mr. Pittman who owns directly 12,430 shares of Common
Stock of Excite and has options to purchase 2,496 shares of Common Stock of
Excite. Mr. Pittman, who is President of AOL Networks, a division of America
Online, disclaims beneficial ownership of any securities held or beneficially
owned by America Online or AOL Ventures.
No other person is known to have the right to receive or the power to
direct the receipt of dividends from, or the proceeds from the sale of, the
shares held by AOL.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to
Securities of the Issuer
Excite and AOL have entered into a Voting Trust Agreement (the "Voting
Trust") with respect to the shares of Series E Preferred Stock issued (or to be
issued upon exercise of the AOL warrant) to AOL in connection with the
Agreements. The Voting Trust provides that all of such shares shall be
deposited into a voting trust such that in the event that a separate class vote
of the Preferred Stock owned by AOL is required, such shares are to be voted
consistently with the majority of Excite's Common Stock. The trustee under the
Voting Trust is Richard B. Redding, Excite's Vice President, Finance and
Administration, and Secretary. His address is c/o Excite, Inc., 1091 Shoreline
Boulevard, Mountain View, California 94043. The Voting Trust will terminate
upon the earlier to occur of (i) the date on which AOL no longer holds shares of
Series E Preferred Stock; (ii) the effective date of any merger, consolidation,
exchange or other reorganization where Excite is not the surviving corporation;
(iii) the dissolution of Excite; or (iv) ten years from the date of the creation
of the Voting Trust.
Excite and AOL and certain shareholders of Excite have entered into a
Voting Agreement, under which the parties have agreed, for so long as AOL owns
at least 1,315,165 shares of Excite stock on an as-converted-to-Common-Stock
basis, to elect to the Excite Board of Directors an individual designated by
America Online. Currently, Stephen M. Case, who is Chairman, President and
Chief Executive Officer of America Online, is America Online's designee to the
Excite Board of Directors.
Except as provided in this Report, there are no other contracts,
arrangements, understandings or relationships (legal or otherwise) between AOL,
and any other person with respect to any securities of Excite, including but not
limited to, transfer or voting of any of such securities, finder's fees, joint
ventures, loan or option agreements, puts or calls, guarantees of profits,
divisions of profits or loss, or the giving or withholding of proxies. None of
the Excite Common Stock beneficially owned by AOL is pledged or otherwise
subject to a contingency the occurrence of which would give another person
voting power or investment power over such shares (excluding standard default
and similar provisions contained in loan agreements).
Item 7. Material to be Filed as Exhibits
Exhibit Description
1. Voting Trust Agreement among Excite, Inc., America Online, Inc. and
AOL Ventures, Inc. dated as of November 25, 1996.
2. Voting Agreement dated as of November 25, 1996, by and among Excite,
Inc., America Online, Inc., and certain shareholders of Excite, Inc.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
AOL Ventures, Inc.: April 11, 1997
(Date)
/S/MILES R. GILBURNE
(Signature)
Miles R. Gilburne, Senior Vice President
(Name/Title)
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
America Online, Inc.: April 11, 1997
(Date)
/S/MILES R. GILBURNE
(Signature)
Miles R. Gilburne, Senior Vice President,
Corporate Development
(Name/Title)
Schedule A
DIRECTORS AND EXECUTIVE OFFICERS OF AMERICA ONLINE, INC.
The name, business address and title with America Online, Inc. and present
principal occupation or employment, of each of the directors and executive
officers of America Online, Inc. are set forth below. Except as indicated, each
person's business address is America Online, Inc., 22000 AOL Way, Dulles,
Virginia 20166. Except as indicated, each person listed below is a citizen of
the United States.
Board of Directors
Name and Title Present Principal Occupation
Stephen M. Case, Chairman of the Board Chairman of the Board, President,
and Chief Executive Officer;
America Online
Frank J. Caufield, Director General Partner; Kleiner, Perkins,
Caufield & Byers
Robert J. Frankenberg, Director Consultant, Net Ventures
Alexander M. Haig, Jr., Director Chairman and President; Worldwide
Associates, Inc.
James V. Kimsey, Chairman Emeritus
and Director Chairman Emeritus; America Online
William N. Melton, Director President and Chief Executive
Officer; CyberCash, Inc.
Thomas Middelhoff, Director Executive Board Member;
Bertelsmann AG
Robert W. Pittman, Director President and Chief Executive
Officer, AOL Networks,
a division of America Online
Scott C. Smith, Director President and Publisher,
Sun-Sentinel
Executive Officers
Name, Title and Present Principal Occupation*
Stephen M. Case, Chairman of the Board, President and Chief Executive Officer;
Robert W. Pittman, President and Chief Executive Officer, AOL Networks, a
division of America Online
Bruce R. Bond, President and Chief Executive Officer, ANS Communications, a
wholly-owned subsidiary of America Online
Theodore J. Leonsis, President and Chief Executive Officer of AOL Studios, a
division of America Online
Lennert J. Leader, Senior Vice President, Chief Financial Officer, Treasurer,
Chief Accounting Officer
and Assistant Secretary
Miles R. Gilburne, Senior Vice President, Corporate Development
Mark Stavish, Vice President, Human Resources
__________
*The present principal occupation of each of the named executive officers is the
same as the named position held with America Online.
Schedule B
DIRECTORS AND EXECUTIVE OFFICERS OF AOL VENTURES, INC.
The name, business address and title with AOL Ventures, Inc. and present
principal occupation or employment, of each of the directors and executive
officers of AOL Ventures, Inc. are set forth below. Except as indicated, each
person's business address is AOL Ventures, Inc., 22000 AOL Way, Dulles, Virginia
20166. Except as indicated, each person listed below is a citizen of the United
States.
Board of Directors
Name and Title Present Principal Occupation
Stephen M. Case, Chairman of the Board Chairman of the Board, President,
and Chief Executive Officer;
America Online
Miles R. Gilburne, Director Senior Vice President, Corporate
Development; America Online
Executive Officers
Name and Title Present Principal Occupation
Theodore J. Leonsis, President President and Chief Executive Officer of
AOL Studios, a division of America Online
Miles R. Gilburne,
Senior Vice President Senior Vice President, Corporate
Development; America Online
David Colburn,
Senior Vice President Senior Vice President, Business Affairs;
America Online
Mark Stavish,
Senior Vice President Vice President, Human Resources;
America Online
Lennert J. Leader,
Senior Vice President Senior Vice President; Chief Financial
Officer, Treasurer, Chief Accounting
Officer and Assistant Secretary;
America Online
VOTING TRUST AGREEMENT
This Voting Trust Agreement (the "Agreement") is entered into as of
November 25, 1996 (the "Effective Date"), by and among Excite, Inc., a
California corporation (the "Company"), America Online, Inc., a Delaware
corporation (the "Shareholder"), AOL Ventures, Inc., a Delaware corporation and
wholly owned subsidiary of the Shareholder ("AOL Ventures"), and Richard Redding
(the "Voting Trustee"). References herein to the Shareholder shall be deemed to
include AOL Ventures.
In consideration of the mutual promises contained herein, the
Company,the Shareholder and the Voting Trustee agree as follows:
1. Purpose of Voting Trust; Effectiveness. The purpose of this Voting
Trust is to ensure that, during the term of this Agreement, votes, actions and
consents to be taken with respect to all voting shares of the Preferred Stock of
the Company held by the Shareholder and to be deposited into the trust created
hereby (the "Preferred Stock") shall be taken by the Voting Trustee on behalf of
the Shareholder in each instance and only in each such instance where the
General Corporation Law of the State of California (the "GCL") would require
that the outstanding shares of Preferred Stock be entitled to a separate class
vote (a "Class Voting Event") and, in any such instance, solely with respect to
such class vote. It is intended that upon a Class Voting Event, the Preferred
Stock shall be voted consistently with the majority of the Company's Common
Stock. Nothing herein shall preclude Shareholder from voting the Preferred Stock
on a Common Stock equivalent basis in accordance with the Company's Articles of
Incorporation with regard to any matter placed before the holders of Common
Stock of the Company, including any matter for which a class vote of the
Preferred Stock is required under the GCL. This Agreement shall be effective as
of the closing of the transactions contemplated by that certain Acquisition
Agreement of even date herewith by and between the Company, Shareholder and
Global Network Navigator, Inc. (the "Acquisition Agreement").
2. Agreement.
2.1 Available for Inspection. Conformed copies of this Agreement and
of each amendment hereto shall be kept on file with the Secretary of the Company
and shall be available for inspection by any holder of a "Voting Trust
Certificate" or any shareholder of the Company at the Company's principal office
during business hours. The Shareholder and the Voting Trustee shall be furnished
with a conformed copy of this Agreement.
2.2 Rights of Shareholder. The Shareholder shall have rights in the
Voting Trust Certificate(s) and in the shares of Preferred Stock deposited in
trust by such Shareholder subject to the terms and provisions of this Agreement.
Any heir, assignee or transferee or person entitled to an interest in the rights
of the Shareholder to the Voting Trust Certificate or the shares of Preferred
Stock deposited by such Shareholder in trust hereunder shall be subject to and
bound by the provisions of this Agreement. Except as otherwise provided herein,
the Shareholder will have all of the rights of a shareholder of the Company with
respect to the shares of Preferred Stock deposited into trust.
3. Transfer of Preferred Stock to Voting Trustee.
3.1 Stock Certificates. Upon the Closing, as such term is defined in
Section 1.4 of the Acquisition Agreement, the Company shall deliver to the
Voting Trustee certificates for the shares of Preferred Stock that are issued at
such time to the Shareholder pursuant to the Acquisition Agreement and referred
to therein as Transaction Shares, and if Shareholder exercises its right under
the Acquisition Agreement to exchange the shares of Company Common Stock held by
it for shares of Excite Preferred Stock at the Closing or thereafter, the
Company shall deliver to the Voting Trustee certificates for all shares of
Preferred Stock issuable to the Shareholder as the result of such exchange.
During the term of this Agreement, the Company or the Shareholder, as
applicable, will deliver to the Voting Trustee certificates for all shares of
Preferred Stock that are issued to Shareholder during such term, including, but
not limited to, all shares issued upon exercise of warrants held by Shareholder.
All such Stock certificates shall be endorsed in blank. The Company shall bear
all expenses of such transfers. Upon surrender of such endorsed stock
certificates transferred by the Shareholder or the Company, the Company shall
issue to the Voting Trustee one or more stock certificates representing the
shares of Preferred Stock deposited in trust hereunder and registered in the
name of the Voting Trustee as a trustee under this Voting Trust Agreement.
Unless otherwise specified by the Voting Trustee the stock certificates issued
in the name of the Voting Trustees shall be held by the Secretary of the
Company.
3.2 Delivery of Voting Trust Certificate. In exchange for the
certificates of shares of Preferred Stock delivered from time to time by the
Shareholder or the Company, the Voting Trustees shall issue and deliver to the
Shareholder Voting Trust Certificates representing the shares of Preferred Stock
deposited by such Shareholder. The Secretary of the Company may, on behalf of
the Voting Trustee, execute any and all Voting Trust Certificates issued
hereunder.
4. Acceptance of Trust. The Voting Trustee hereby accepts the trust
created hereby in accordance with all of the terms and conditions contained in
this Agreement.
5. Voting Trust Certificates. The Voting Trust Certificates to be
issued and delivered by the Voting Trustee under this Agreement in respect of
any shares of Preferred Stock shall be legended as required by the terms of the
agreement between the Company and such Shareholder pursuant to which such
Shareholder acquired its Preferred Stock, together with substantially the
following legend:
SALE, PLEDGE OR OTHER DISPOSITION OR TRANSFER OF THIS VOTING
TRUST CERTIFICATE AND THE SHARES OF STOCK OF EXCITE, INC.
REPRESENTED HEREBY IS RESTRICTED BY THE TERMS OF A VOTING
TRUST AGREEMENT WHICH MAY BE EXAMINED AT THE OFFICES OF THE
COMPANY IN MOUNTAIN VIEW, CALIFORNIA.
6. Transfer of Certificates.
6.1 Transfer Procedures. The Voting Trust Certificates shall be
transferable only on the books of the Company upon surrender of such Voting
Trust Certificates (duly endorsed in blank or accompanied by a proper instrument
of assignment duly executed in blank, together with all requisite tax stamps
attached thereto and an amount sufficient to pay all federal, state and local
taxes or other governmental charges, if any, then payable in connection with
such transfer) by the registered holder in person or by such holder's duly
authorized attorney to the Company. Upon the surrender of any Voting Trust
Certificate for transfer (provided such transfer does not violate the
restrictions on transfer contained herein, in any other agreement to which the
Shareholders may be bound, or imposed by law), the Company shall cancel such
Voting Trust Certificate and issue to the transferee one or more new Voting
Trust Certificates in the same form and representing the same number of shares
of Preferred Stock as the Voting Trust Certificates presented for cancellation.
6.2 Registered Owner. The Voting Trustee may treat the registered
holder of each of such Voting Trust Certificates as the absolute owner thereof
for all purposes whatsoever, and accordingly shall not be required to recognize
any legal, equitable or other claim or interest in such Voting Trust Certificate
on the part of any other person, whether or not it or they shall have express or
other notice thereof.
6.3 Lost, Stolen Certificates. If a Voting Trust Certificate is
lost, stolen, mutilated, or destroyed, the Voting Trustee, in his discretion,
may cause to be issued a duplicate of such certificate upon receipt of: (a)
evidence of such fact satisfactory to them; (b) indemnity satisfactory to them;
(c) the existing certificate, if mutilated; and (d) the reasonable fees and
expenses incurred in connection with the issuance of a new Voting Trust
Certificate.
6.4 Securities Laws. The Voting Trust Certificates may not be
offered, sold, transferred or hypothecated in the absence of registration or the
availability of an exemption from registration under the Securities Act of 1933,
as amended (the "Act") and any applicable state law regulating securities. Every
holder of Voting Trust Certificates agrees not to sell, transfer, pledge or
hypothecate the Voting Trust Certificates unless the Voting Trustee shall be
reasonably satisfied that such sale or other disposition does not violate the
provisions of any agreement of which the Shareholder is a party and unless
either: (i) the transfer of the Voting Trust Certificates is registered under
the Act pursuant to a current and effective registration statement at the time
of such sale, transfer, pledge or hypothecation and is registered or qualified
under any applicable state law regulating securities; or (ii) the Voting Trustee
has been furnished an opinion of counsel satisfactory in form and substance to
the Voting Trustee that the Voting Trust Certificates may be so transferred or
disposed of without such registration or qualification. Every holder of Voting
Trust Certificates agrees that the Voting Trustee may refuse to transfer any
Voting Trust Certificate except as aforesaid.
7. Dividends.
7.1 Paid to Voting Trustees. The Voting Trustee shall receive and
distribute to the registered holders of Voting Trust Certificates any dividends
or distributions paid in cash or property other than voting securities of the
Company in respect of the Preferred Stock received by the Voting Trustee to
holders of voting Trust Certificates in proportion to their respective interests
in the underlying Preferred Stock deposited hereunder. The Voting Trustee also
shall receive and hold, subject to the terms of this Agreement, any voting
preferred stock of the Company issued by reason of any capital reorganization,
stock split, stock dividend, combination or the like and shall issue and deliver
Voting Trust Certificates therefor to the holders of the Voting Trust
Certificates in proportion to their respective interests as shown on the books
of the Voting Trustee.
7.2 Paid to Shareholder. In lieu of receiving cash dividends upon
the Preferred Stock and paying the same to the holders of Voting Trust
Certificates pursuant to the provisions of this Agreement, the Voting Trustee
may instruct the Company in writing to pay such dividends to the holders of the
Voting Trust Certificates. Upon receipt of such written instructions, the
Company shall pay such dividends directly to the holders of the Voting Trust
Certificates. The Voting Trustee may at any time revoke such instructions and by
written notice to the Company direct it to make dividend payments to the Voting
Trustee. Upon such instructions being given by the Voting Trustee to the
Company, and until revoked by it, all liability of the Voting Trustee with
respect to such dividends shall cease.
8. Dissolution of the Company. In the event that upon dissolution or
total or partial liquidation of the Company, whether voluntary or involuntary,
the Voting Trustee shall receive the moneys, securities, rights or property to
which the holders of the Preferred Stock deposited hereunder are entitled, then
the Voting Trustee shall distribute the same among the registered holders of
Voting Trust Certificates in accordance with the terms of the Company's Articles
of Incorporation in proportion to the registered holders' respective interests
as shown by the books of the Voting Trustee, or the Voting Trustee may in his
discretion deposit such moneys, securities, rights or property with any bank or
trust company with authority and instructions to distribute the same as above
provided, and upon such deposit all further obligations or liabilities of the
Voting Trustee in respect of such moneys, securities, rights or property so
deposited shall cease.
9. Successor Voting Trustees. The Voting Trustee may at any time resign
by delivering to the Company his resignation in writing, to be effective in
accordance with its terms, including without limitation any specification of a
successor. Except as otherwise provided herein, if the Voting Trustee shall
resign or be removed and a successor is not automatically appointed pursuant to
the preceding sentence, then a successor will be appointed by the Company.
Except as otherwise provided herein, the successor Voting Trustee may be removed
at any time upon the request of the Shareholder.
10. Rights and Powers of Voting Trustee. Until the termination of this
Agreement as provided herein, at each Class Voting Event, including without
limitation, any vote involving a change in control of the Company, and whether
occurring at a duly called and held meeting of Company shareholders or with
respect to any written consent of shareholders of the Company, the Voting
Trustee shall vote, in person or by proxy, the shares deposited hereunder in a
manner that is consistent with the vote of the holders of a majority of the
Company's voting Common Stock (which Common Stock shall be deemed to include the
shares of Company Common Stock issuable upon conversion of the shares of
Preferred Stock deposited hereunder). The Voting Trustee shall have no authority
to sell, pledge, hypothecate, or otherwise
dispose of any of the shares deposited pursuant to this Agreement, provided
however, that if the holders of a majority of the Company's voting Common Stock
and preferred stock that is not held by the Voting Trustee on behalf of the
Shareholder tender their shares pursuant to a tender offer under Section 14(d)
of the Securities Exchange Act of 1934, as amended, the Voting Trustee shall
tender the shares deposited hereunder, receive the proceeds in consideration
thereof and distribute such proceeds to the Shareholder.
11. Liability of Voting Trustee. In voting, or otherwise acting
hereunder with respect to shares deposited hereunder, the Voting Trustee shall
be entitled to exercise his own absolute discretion and judgment subject to the
conditions imposed by Section 10 hereof; but he assumes no responsibility in
respect to any action taken by him or his agents, and neither the Voting Trustee
nor any of his agents shall incur any responsibility or liability by reason of
any error of law or anything done or suffered or omitted, except for individual
malfeasance. Neither the Voting Trustee nor any of his agents shall be required
to give any bond or other security for the discharge of duties.
12. Expenses of Voting Trustee. The Voting Trustee may employ counsel,
and provide for such other assistance as may be convenient, in the performance
of his functions. The Company shall indemnify the Voting Trustee against all
expenses, claims and liabilities incurred by him in connection with or arising
out of this Agreement for the discharge of his duties hereunder to the
fullextent permitted by law. The Company shall, at the request of the Voting
Trustee, advance funds to pay expenses incurred for legal or other assistance
provided to the Voting Trustees or for legal fees or other expenses incurred by
the Voting Trustee in the defense of any action, claim or proceeding arising as
aforesaid.
13. Surrender of Shares for Cancellation. The Voting Trustee may at any
time in his discretion, and to such extent as he may deem advisable, deliver in
exchange for Voting Trust Certificates, certificates for shares of the Company
in an amount equal to the shares represented by such Voting Trust Certificates
in order to enable the surrender to the Company for cancellation of the shares
so delivered, or otherwise as the Voting Trustee may in his absolute discretion
deem advisable, and the delivery of any such shares of the Company to any one or
more holders of Voting Trust Certificates shall not entitle such holder or
holders or any other holder or holders of Voting Trust Certificates to demand
delivery of all or any part of the shares of the Company remaining deposited
hereunder.
14. Conversion of Shares Into Common Stock. If the Shareholder or any
subsequent holder of Voting Trust Certificates wishes to convert the shares of
Preferred Stock in which it has a beneficial interest into shares of the
Company's Common Stock (a "Converting Holder"), the following procedure shall be
followed: (i) the Converting Holder shall deliver Voting Trust Certificate(s) to
the Company (covering the beneficial interest in all shares to be converted)
together with instructions as to how many shares of Preferred Stock are to be
converted into Common Stock; (ii) the shares requested to be converted shall be
deemed converted immediately upon receipt of such instructions and Voting Trust
Certificate(s) by the Company; (iii) the Company, shall immediately instruct its
transfer agent to issue shares of Common Stock to the Converting Holder or its
successors or assigns in accordance with the instructions of Converting Holder
(and pursuant to the terms of the Company's Amended and Restated Articles of
Incorporation); and (iv) the Company shall inform the Voting Trustee of the
conversion and the Voting Trustee shall promptly issue to the Converting Holder
new Voting Trust Certificates representing the interest in any shares not
converted by the Converting Holder. Any shares of Common Stock issued upon
conversion shall no longer be subject to this Agreement. Except as otherwise
provided by this Agreement, a Converting Holder shall have no right to the
delivery of any shares of Preferred Stock not converted under this Section14.
15. Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed to have been duly given on the
date of service if served personally or on the date of mailing if mailed by
first class mail, registered or certified, postage prepaid and addressed as
follows: if to registered holders of Voting Trust Certificates, at the address
for each such holder set forth on his Voting Trust Certificate; if to the Voting
Trustee at the address specified below its signature on this Agreement; if to
the Company, at Excite, Inc., 1091 N. Shoreline Blvd., Suite 200, Mountain View,
CA 94043; or such different address as may be specified to the other parties by
notice given as provided herein.
16. Term. This Agreement shall continue in effect until and shall
terminate upon the earlier to occur of (i) the date on which no shares of
Preferred Stock are held by Shareholder, or (ii) the effective date of a merger
or consolidation of the Company or an exchange or other reorganization where the
Company is not the surviving or parent corporation; or (iii) the voluntary or
involuntary dissolution of the Company, or (iv) the death, resignation or
incapacity to act of the Voting Trustee if no other trustee is appointed
pursuant hereto to fill the vacancy within 90 days after such death, resignation
or incapacity; or (v) ten years from the Effective Date. Renewal of the Voting
Trust may be effected pursuant to the provisions of the GCL.
17. Conversion of Shares. Upon termination, the holder of the Voting
Trust Certificate may present such Voting Trust Certificate to the Voting
Trustee and, upon such presentation, the Voting Trustee shall deliver to such
holder a certificate or certificates, expressed to be fully paid and
nonassessable, for shares of Preferred Stock, as provided in the Voting Trust
Certificate.
18. Execution of this Agreement. This Agreement may be executed in
several counterparts, each of which shall be an original.
19. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the executors, administrators, heirs, successors and assigns of
the parties.
20. Governing Law. This Agreement shall be governed by and construed in
accordance with the corporation law of the State of California, excluding that
body of law known as conflicts of law.
22. Successors and Assigns. Except as expressly set forth to the
contrary in this Agreement, this Agreement shall be binding upon and inure to
the benefit of the successors, assigns, heirs, administrators, executors and
legal representatives of the parties hereto; provided, however, that the
transfer of any interest in this Agreement shall be subject to the transferee's
consent to be bound by all provisions of this Agreement.
23. Captions. The captions to Sections of this Agreement have been
inserted for identification and reference purposes and shall not by themselves
determine the construction or interpretation of this Agreement.
24. Amendment. Except as otherwise provided, any term of this Voting
Trust may be amended and the observance of any term of this Voting Trust may be
waived (either generally or in a particular instance and either retroactively or
prospectively), only with the consent of the Company, the Voting Trustee and the
Shareholder.
IN WITNESS WHEREOF, the Company, the Voting Trustee, AOL Ventures and
the Shareholder have executed this Voting Trust Agreement as of the date first
written above.
AMERICA ONLINE, INC.: EXCITE, INC.
By: /s/ Eric Keller By: /s/ George Bell
-------------------------- -----------------------------
Name: Name:
------------------------ -----------------------------
Title: Title:
------------------------------ -----------------------------
AOL VENTURES, INC.:
By: /s/ Miles Gilburne
---------------------------------
Name:
-------------------------------
Title:
------------------------------
THE VOTING TRUSTEE:
/s/ Richard Redding
- - ----------------------------------
Richard Redding
c/o Excite, Inc.
1091 N. Shoreline Blvd., Ste. 200
Mountain View, CA 94043
VOTING AGREEMENT
This Voting Agreement (this "Agreement") is made and entered into as of
November 25, 1996, by and among Excite, Inc., a California corporation
("Excite"), America Online, Inc., a Delaware corporation ("AOL"), and the
parties other than Excite and AOL whose signatures are affixed hereto (the
"Shareholders"). AOL and the Shareholders are sometimes collectively referred to
herein as the "Holders."
A. AOL has entered into an Acquisition Agreement (the "Acquisition
Agreement") and an Operating Agreement with Excite, each dated as of November
25, 1996, pursuant to which Excite will issue to AOL an aggregate of 1,950,000
shares of Excite Series E Preferred Stock. In addition, AOL holds 680,330
shares of Excite Common Stock and a warrant to purchase 650,000 shares of Excite
Common Stock.
B. It is a condition to the closing of the Acquisition Agreement that
Excite make such arrangements as are necessary to ensure that AOL will have the
right to have an AOL representative elected to the Board of Directors of Excite
for so long as AOL holds at least 1,315,165 shares of Excite stock on an as
converted to Common Stock basis.
C. AOL, the Shareholders and Excite desire to enter into this Agreement
to set forth their agreements and understandings with respect to how shares of
Excite's Common and Preferred Stock ("Capital Stock") held by them will be voted
with respect to the election of an AOL representative to the Excite Board of
Directors.
NOW THEREFORE, in consideration of the above recitals and the mutual
covenants made herein, the parties hereby agree as follows:
1. ELECTION OF BOARD OF DIRECTORS.
1.1 Voting; AOL Representation. During the term of this Agreement,
each Holder agrees to vote all shares of Capital Stock of Excite now or
hereafter directly or indirectly owned (of record or beneficially) by such
Holder, in such manner as may be necessary to elect (and maintain in office), as
a member of Excite's Board of Directors, one individual designated by AOL from
time to time in a writing delivered to Excite and signed by AOL. For purposes
of this Agreement, any individual who is designated for election to Excite's
Board of Directors pursuant to this Section 1.1 is hereinafter referred to as
the "AOL Board Designee."
1.2 Changes in AOL Board Designees. From time to time during the
term of this Agreement, AOL may, in its sole discretion:
(a) elect to remove from Excite's Board of Directors the
incumbent AOL Board Designee who occupies a Board seat for which AOL is
entitled to designate the AOL Board Designee under Section 1.1; and/or
(b) designate a new AOL Board Designee for election to a Board
seat for which AOL is entitled to designate the AOL Board Designee under
Section 1.1 (whether to replace a prior AOL Board Designee or to fill a
vacancy in such Board seat).
In the event of such a removal and/or designation of an AOL Board Designee under
this Section 1.2, the Holders shall vote their shares of Excite's Capital Stock
as provided in Section 1.1 to cause: (a) the removal from Excite's Board of
Directors of the AOL Board Designee so designated for removal by AOL; and (b)
the election to Excite's Board of Directors of any new AOL Board Designee so
designated for election to Excite's Board of Directors by AOL.
1.3 Notice. Excite shall promptly give each of the Holders written
notice of any proposal by AOL to remove or elect a new AOL Board Designee. In
any election of directors pursuant to this Section 1, the Holders shall vote
their shares in a manner sufficient to elect to Excite's Board of Directors the
individuals to be elected thereto as provided in this Section 1.
2. FURTHER ASSURANCES. Each of the Holders and Excite agree not to vote
any shares of Capital Stock, or to take any other actions, that would in any
manner defeat, impair, or adversely affect the stated intentions of the parties
under Section 1 of this Agreement.
3. ENFORCEMENT OF AGREEMENT. Each of the Shareholders acknowledges and
agrees that any breach by any of him, her or it of this Agreement shall cause
AOL irreparable harm which may not be adequately compensable by money damages.
Accordingly, in the event of a breach or threatened breach by a Shareholder of
any provision of this Agreement, Excite and AOL shall each be entitled to the
remedies of specific performance, injunction or other preliminary or equitable
relief, including the right to compel any such breaching Shareholder, as
appropriate, to vote such Shareholder's shares of Capital Stock of Excite in
accordance with the provisions of this Agreement, in addition to such other
rights remedies as may be available to Excite or AOL for any such breach or
threatened breach, including but not limited to the recovery of money damages.
4. TERM. This Agreement shall commence as of the Closing (as such term
is defined in Section 1.4 of the Acquisition Agreement) and shall terminate upon
the first to occur of the following:
(a) Such time as AOL or its wholly-owned subsidiaries hold less than
1,315,165 shares of Excite stock on an as converted to Common Stock basis
(as adjusted for stock splits or similar events);
(b) The delivery by AOL of a written notice to Excite to terminate
this Agreement;
(c) Immediately prior to the closing of any of the following: (i)
any consolidation or merger of Excite with or into any other corporation or
corporations in which the holders of Excite's outstanding shares
immediately before such consolidation or merger do not, immediately after
such consolidation or merger, retain stock representing a majority of the
voting power of the surviving corporation of such consolidation or merger
or stock representing a majority of the voting power of a corporation that
wholly owns, directly or indirectly, the surviving corporation of such
consolidation or merger; (ii) the sale, transfer or assignment of
securities of Excite representing a majority of the voting power of all
Excite's outstanding voting securities by the holders thereof to an
acquiring party in a single transaction or series of related transactions;
(iii) any other sale, transfer or assignment of securities of Excite
representing over fifty percent (50%) of the voting power of Excite's then
outstanding voting securities by the holders thereof to an acquiring party;
or (iv) the sale of all or substantially all Excite's assets.
5. GENERAL PROVISIONS.
5.1 Entire Agreement; Captions. This Agreement and the agreements to
be executed and delivered in connection with the Acquisition Agreement, together
constitute the entire agreement and understanding between the parties and there
are no agreements or commitments with respect to the transactions contemplated
herein except as set forth in this Agreement and the Acquisition Agreement.
This Agreement and the Acquisition Agreement supersede any prior offer,
agreement or understanding between the parties with respect to the transactions
contemplated hereby. The captions in this Agreement are for convenience only
and shall not be considered a part of or affect the construction or
interpretation of any provision of this Agreement.
5.2 Notices. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be personally or sent by certified or
registered United States mail, postage prepaid, or sent by nationally recognized
overnight express courier and addressed as follows:
(a) if to Excite, at:
Excite, Inc.
1091 N. Shoreline Blvd., Suite 200
Mountain View, CA 94043
Attention: President
Facsimile: 415/943-2888
with a copy to:
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, CA 9306
Attention: Mark C. Stevens
Facsimile: 415/494-0674
(b) If to AOL:
America Online, Inc.
22000 AOL Way
Dulles, VA 20166
Attention: General Counsel
Facsimile: 703/265-2208
with a copy to:
Piper & Marbury L.L.P.
1200 Nineteenth Street, NW
Washington, DC. 20036-2430
Attention: Edwin M. Martin
Facsimile; 202/223-2085
5.3 Amendment; Waiver. Any term or provision of this Agreement may
be amended only by a writing signed by AOL, Excite and a majority of the
Shareholders, provided however, that any Shareholder who does not agree to such
amendment shall not be bound by such amendment but will be otherwise bound to
the terms of this Agreement that are not in conflict with such amendment. The
observance of any term or provision of this Agreement may be waived (either
generally or in a particular instance and either retroactively or prospectively)
only by a writing signed by the party to be bound by such waiver. No waiver by
a party of any breach of this Agreement will be deemed to constitute a waiver of
any other breach or any succeeding breach.
5.4 No Third Party Beneficiaries. Nothing expressed or implied in
this Agreement is intended, or shall be construed, to confer upon or to give any
person, firm or corporation, other than the parties hereto, any rights or
remedies under or by reason of this Agreement.
5.5 Execution in Counterparts. For the convenience of the parties,
this Agreement may be executed in one or more counterparts, each of which shall
be deemed an original but all of which together shall constitute one and the
same instrument.
5.6 Assignment. These rights and obligations of the parties to this
Agreement may not be delegated or assigned by any party hereto without the prior
written consent of the other party and any such attempted delegation or
assignment shall be void.
5.7 Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of California (excluding
application of any choice of law doctrines that would make applicable the law of
any other state or jurisdiction) and, where appropriate, applicable federal law.
5.8 Severability. If any provision of this Agreement is for any
reason and to any extent deemed to be invalid or unenforceable, then such
provision shall not be voided but rather shall be enforced to the maximum extent
then permissible under then applicable law and so as to reasonably effect the
intent of the parties hereto, and the remainder of this Agreement will remain in
full force and effect.
5.9 Attorneys' Fees. Should a suit or arbitration be brought to
enforce or interpret any provision of this Agreement, the prevailing party shall
be entitled to recover reasonable attorneys' fees to be fixed in amount by the
Court or the Arbitrator(s) (including without limitation costs, expenses and
fees on any appeal). The prevailing party will be entitled to recover its costs
of suit or arbitration, as applicable, regardless of whether such suit or
arbitration proceeds to a final judgment or award.
5.10 Sections and Exhibits. Except as otherwise indicated, all
references in this Agreement to "Section(s)" and "Exhibit(s)" are intended to
refer to Section(s) to this Agreement and Exhibit(s) to this Agreement,
respectively.
5.11 Dispute Resolution. All disputes arising under this Agreement
between AOL and Excite shall be resolved pursuant to the dispute resolution
procedures set forth in the Commercial Agreement.
5.12 Construction of Agreement. This Agreement has been negotiated by
the respective parties hereto and their attorneys and the language hereof will
not be construed for or against either party.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first above written.
EXCITE, INC.: AMERICA ONLINE, INC.:
By: By:
Name: Richard B. Redding Name: Miles Gilburne
Title: Secretary and Acting Chief Title:
Financial Officer
SHAREHOLDERS:
INSTITUTIONAL VENTURE PARTNERS VI, L.P. IVP FOUNDERS FUND I, L.P.
By Its General Partner By Its General Partner
Institutional Venture Management VI, Institutional Venture Management
L.P. VI, L.P.
By__/S/______________________________
Geoffrey Y. Yang, General Partner By_______________________________
Geoffrey Y. Yang, General Partner
INSTITUTIONAL VENTURE MANAGEMENT VI, KLEINER PERKINS CAUFIELD & BYERS
L.P. VIII
By___________________________________ By_______________________________
Geoffrey Y. Yang, General Partner Vinod Khosla, General Partner
KPCB VII FOUNDERS FUND KPCB INFORMATION SCIENCES ZAIBATSU
FUND II
By____________________________________ By_______________________________
Vinod Khosla, General Partner Vinod Khosla, General Partner
ITOCHU TECHNOLOGY, INC. ITOCHU CORPORATION
By By
Name Shigeki Nishiyama Name Eizo Kobayashi
Title Executive Vice President Title General Manager Information
Technology and Engineering
Department
(SIGNATURES CONTINUED ON NEXT PAGE)
TRIBUNE COMPANY AOL VENTURES, INC.
By By
Name David Hiller Name Miles Gilburne
Title Senior Vice President Title
______________________________________ _________________________________
Robert W. Pittman Vinod Khosla
______________________________________ ____________________________________
Joseph R. Kraus, IV Graham F. Spencer
______________________________________ ___(Unsigned)_______________________
Brett Bullington Julie Gomoll
______________________________________ ____________________________________
Jeff McFadden Kevin Altis
IDG HOLDINGS, INC.
_(Unsigned)____________________________ By
Rachel Matthews Name (Unsigned)
Title
CHARLES RIVER PARTNERSHIP VII CUC INTERNATIONAL INC.
By By (Unsigned)
Name Richard M. Burns, Jr. Name
Title Title
(SIGNATURE PAGE TO EXCITE/AOL VOTING AGREEMENT)
ROSEWOOD STONE GROUP, INC.
By
Name
Title
(SIGNATURE PAGE TO EXCITE/AOL VOTING AGREEMENT)
