<PAGE>
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): December 15, 1997
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NETSCAPE COMMUNICATIONS CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 0-26310 94-3200270
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(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification Number)
incorporation)
501 EAST MIDDLEFIELD ROAD, MOUNTAIN VIEW, CALIFORNIA 94043
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (650) 254-1900
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N/A
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(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS.
On December 15, 1997 (the "Closing Date"), pursuant to a purchase
agreement dated as of November 6, 1997 (the "Purchase Agreement"), between
Netscape Communications Corporation ("Netscape") and GE Information Services,
Inc. ("GEIS"), Netscape acquired GEIS's membership interest in Actra Business
Systems, L.L.C. ("Actra") and acquired certain rights to source code for
certain related software owned by GEIS.
The total amount of consideration to be paid to GEIS pursuant to the
Purchase Agreement is $55 million in Netscape Common Stock, calculated based
on the average closing price of Netscape Common Stock as reported on the
Nasdaq National Market for the 20 most recent trading days ending on the
third day prior to the effectiveness of the registration statement on Form
S-3 registering such shares. Netscape has agreed to register with the
Securities Exchange Commission the resale of the shares issued to GEIS within
seven days following the closing of the transaction. In addition, in
connection with the acquisition, Netscape will issue options exercisable for
an aggregate of approximately 600,000 shares of its Common Stock to employees
of Actra, which is subject to adjustment based upon the actual number of
shares issued to Actra. The purchase price and the terms for the transaction
were determined in arms-length negotiations between the parties. The
acquisition will be accounted for as a purchase. Netscape anticipates that a
substantial portion of the acquisition will be written off as purchased
in-process research and development in the fourth quarter of 1997. In
addition, future periods will be affected by acquisition-related amortization
charges, which may be significant.
Actra is a leading supplier of commerce applications for conducting
business-to-business and business-to-consumer commerce on the Internet.
Actra's commerce applications focus on buying, selling and merchandising over
the Internet and supporting EDI on public and private networks. Upon
completion of this acquisition, Actra will be folded into a new division at
Netscape.
Prior to the acquisition, GEIS and Netscape entered into a joint venture
pursuant to that certain Formation and Limited Liability Company Agreement
dated March 26, 1996 (the "Joint Venture Agreement"). Pursuant to the Joint
Venture Agreement, Netscape and GEIS formed Actra. Prior to the acquisition,
Netscape and GEIS were the only record owners of Actra. A copy of the
Purchase Agreement is filed as Exhibit 2.1 to this report and is incorporated
herein by this reference.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(a) FINANCIAL STATEMENTS OF ACTRA.
Not Applicable.
(b) PRO FORMA FINANCIAL INFORMATION.
Not Applicable.
(c) EXHIBITS.
2.1 Purchase Agreement dated November 6, 1997 between Netscape and
GE Information Services, Inc.
4.1 Form of Declaration of Registration Rights.
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SIGNATURES
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: December 12, 1997 NETSCAPE COMMUNICATIONS CORPORATION
/s/ Peter L.S. Currie
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Peter L.S. Currie
Executive Vice President and Chief
Administrative Officer
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<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description of Document
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2.1 Purchase Agreement dated November 6, 1997 between Netscape
and GE Information Services, Inc.
4.1 Form of Declaration of Registration Rights
<PAGE>
PURCHASE AGREEMENT
BETWEEN
NETSCAPE COMMUNICATIONS CORPORATION
AND
GE INFORMATION SERVICES, INC.
CONCERNING ACTRA BUSINESS SYSTEMS, L.L.C.
Dated as of November 6, 1997
<PAGE>
TABLE OF CONTENTS
Page
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ARTICLE I - PURCHASE AND SALE OF MEMBERSHIP INTEREST . . . . . . . . . . . . 1
1.1 Purchase and Sale . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Consideration; Payment at Closing and on Effectiveness Date . . . . 2
1.4 No Fractional Shares. . . . . . . . . . . . . . . . . . . . . . . . 2
1.5 Tax Consequences. . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.6 Delivery of Certificates. . . . . . . . . . . . . . . . . . . . . . 3
1.7 Legend on Certificates. . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II - REPRESENTATIONS AND WARRANTIES OF GEIS. . . . . . . . . . . . . 3
2.1 Organization, Standing and Power. . . . . . . . . . . . . . . . . . 3
2.2 Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.3 Ownership of Membership Interest. . . . . . . . . . . . . . . . . . 4
2.4 Absence of Claims by GEIS . . . . . . . . . . . . . . . . . . . . . 4
2.5 No Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.6 Consents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.7 Investment Representations. . . . . . . . . . . . . . . . . . . . . 5
2.8 Other Knowledge . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF NETSCAPE . . . . . . . . . . 6
3.1 Organization, Standing and Power. . . . . . . . . . . . . . . . . . 6
3.2 Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.3 Capital Structure . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.4 No Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.5 Consents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.6 SEC Documents; Netscape Financial Statements. . . . . . . . . . . . 8
3.7 S-3 Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.8 No Material Adverse Change. . . . . . . . . . . . . . . . . . . . . 8
3.9 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE IV - CONDUCT PRIOR TO THE CLOSING. . . . . . . . . . . . . . . . . . 9
4.1 No Solicitation . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE V - ADDITIONAL AGREEMENTS. . . . . . . . . . . . . . . . . . . . . . 9
5.1 Sale and Registration of Shares; Shareholder Matters. . . . . . . . 9
5.2 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . .10
5.3 Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
5.4 Public Disclosure . . . . . . . . . . . . . . . . . . . . . . . . .11
5.5 Reasonable Efforts; Further Assurances. . . . . . . . . . . . . . .11
5.6 Notification of Certain Matters . . . . . . . . . . . . . . . . . .11
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TABLE OF CONTENTS
(CONTINUED)
Page
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5.7 Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
5.8 Nasdaq National Market Listing. . . . . . . . . . . . . . . . . . .11
5.9 Additional Documents. . . . . . . . . . . . . . . . . . . . . . . .11
5.10 Registration Rights . . . . . . . . . . . . . . . . . . . . . . . .12
5.11 Access to Books and Records . . . . . . . . . . . . . . . . . . . .12
5.12 Nonsolicitation of Employees. . . . . . . . . . . . . . . . . . . .12
5.13 Mutual Release. . . . . . . . . . . . . . . . . . . . . . . . . . .12
ARTICLE VI - CONDITIONS TO THE ACQUISITION . . . . . . . . . . . . . . . . .13
6.1 Conditions to Obligations of Each Party to Effect the Acquisition .13
6.2 Additional Conditions to Obligations of GEIS. . . . . . . . . . . .13
6.3 Additional Conditions to the Obligations of Netscape. . . . . . . .14
ARTICLE VII - DISPUTE RESOLUTION . . . . . . . . . . . . . . . . . . . . . .15
7.1 Resolution of Disputes; Mediation . . . . . . . . . . . . . . . . .15
ARTICLE VIII - TERMINATION, AMENDMENT AND WAIVER . . . . . . . . . . . . . .16
8.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
8.2 Effect of Termination . . . . . . . . . . . . . . . . . . . . . . .16
8.3 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
8.4 Extension; Waiver . . . . . . . . . . . . . . . . . . . . . . . . .17
ARTICLE IX - GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . .17
9.1 Survival of Representations and Warranties. . . . . . . . . . . . .17
9.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
9.3 Interpretation. . . . . . . . . . . . . . . . . . . . . . . . . . .18
9.4 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . .18
9.5 Entire Agreement; Assignment. . . . . . . . . . . . . . . . . . . .18
9.6 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . .18
9.7 Other Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . .19
9.8 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . .19
9.9 No Third Party Beneficiaries. . . . . . . . . . . . . . . . . . . .19
9.10 Rules of Construction . . . . . . . . . . . . . . . . . . . . . . .19
9.11 Specific Performance. . . . . . . . . . . . . . . . . . . . . . . .19
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INDEX OF EXHIBITS
EXHIBIT DESCRIPTION
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Exhibit A Logistic Tracking System Source Code License Agreement
Exhibit B Form of Bill of Sale and Assignment
Exhibit C Form of Declaration of Registration Rights
Exhibit D Software Distribution Agreement
Exhibit E Form of Legal Opinion of Counsel to Netscape
Exhibit F Form of Legal Opinion of Counsel to GEIS
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PURCHASE AGREEMENT
This PURCHASE AGREEMENT (this "AGREEMENT") is made and entered into as of
November 6, 1997 between Netscape Communications Corporation, a Delaware
corporation ("NETSCAPE"), and GE Information Services, Inc., a Delaware
corporation ("GEIS").
RECITALS
A. The Boards of Directors of each of Netscape and GEIS believe it is in
their respective best interests that Netscape acquire (the "ACQUISITION") and
that GEIS sell GEIS's entire Membership Interest (as defined below) in Actra
Business Systems, L.L.C., a Delaware limited liability company ("ACTRA"). For
purposes of this Agreement, "Membership Interest" shall mean GEIS's limited
liability company ownership interest in Actra.
B. In connection with the Acquisition, Netscape and GEIS desire to
enter into a source code licensing agreement.
C. Netscape and GEIS desire to make certain representations and
warranties and other agreements in connection with the Acquisition.
NOW, THEREFORE, in consideration of the covenants, promises and
representations set forth herein, and for other good and valuable consideration,
intending to be legally bound hereby the parties agree as follows:
ARTICLE I
PURCHASE AND SALE OF MEMBERSHIP INTEREST
1.1 PURCHASE AND SALE. At the Closing (as defined in Section 1.2
hereof) and subject to and upon the terms and conditions of this Agreement, GEIS
will sell, transfer, convey, assign and deliver to Netscape, and Netscape will
purchase and acquire from GEIS, free and clear of any liens, claims, charges,
restrictions, pledges, security interests, options, mortgages, or other legal or
equitable encumbrances (collectively, "LIENS"), (i) all of GEIS's right, title
and interest in and to the Membership Interest and (ii) certain rights to source
code (the "SOURCE CODE RIGHTS") for the Logistics Tracking System pursuant to
that certain Logistic Tracking System Source Code License Agreement (the
"LICENSE AGREEMENT") in the form attached hereto as EXHIBIT A. At the Closing,
GEIS will deliver to Netscape duly executed instruments of transfer and
assignment of its Membership Interest sufficient to vest in Netscape all right,
title and interest in the Membership Interest in accordance with the terms of
this Agreement; such transfer instruments to include a Bill of Sale and
Assignment in substantially the form of EXHIBIT B attached hereto.
<PAGE>
1.2 CLOSING. Unless this Agreement is earlier terminated pursuant to
Section 8.1 hereof, the closing of the purchase and sale of the Membership
Interest (the "CLOSING") will take place as promptly as practicable, but no
later than five (5) business days, following satisfaction or waiver of the
conditions set forth in Article VI hereof, at the offices of Wilson Sonsini
Goodrich & Rosati, 650 Page Mill Road, Palo Alto, California, unless another
place or time is agreed to by Netscape and GEIS. The date upon which the
Closing actually occurs is herein referred to as the "CLOSING DATE".
1.3 CONSIDERATION; PAYMENT AT CLOSING AND ON EFFECTIVENESS DATE.
(a) The number of shares of Netscape common stock ("NETSCAPE
COMMON STOCK") to be issued as consideration for the acquisition by Netscape of
the Membership Interest and the Source Code Rights shall be equal to the number
of shares (the "EFFECTIVENESS SHARE NUMBER"), rounded to the nearest whole
share, determined by dividing (A) $55,000,000 by (B) the average closing sale
price of a share of Netscape Common Stock, as reported on the Nasdaq National
Market for the twenty (20) most recent trading days ending on the third trading
day preceding the date of effectiveness of the Registration Statement (as
defined in Section 5.1(b)) (the "EFFECTIVENESS DATE").
(b) At the Closing, Netscape shall issue to GEIS a number of
shares of Netscape Common Stock, rounded to the nearest whole share and subject
to adjustment as provided in Section 1.3 (c) below, equal to (A) $55,000,000
DIVIDED by (B) the average closing sale price of a share of Netscape Common
Stock, as reported on the Nasdaq National Market for the twenty (20) most recent
trading days ending on the third trading day preceding the Closing Date (the
"CLOSING SHARE NUMBER").
(c) On the Effectiveness Date, the parties shall adjust the
Closing Share Number as follows:
(i) if the Closing Share Number is greater than the
Effectiveness Share Number, GEIS shall surrender to Netscape for cancellation on
the Closing Date a number of shares of Netscape Common Stock equal to the excess
of the Closing Share Number over the Effectiveness Share Number; or
(ii) if the Effectiveness Share Number is greater than
the Closing Share Number, Netscape shall issue to GEIS a number of shares of
Netscape Common Stock equal to the excess of the Effectiveness Share Number over
the Closing Share Number (the "ADDITIONAL SHARE NUMBER").
(d) The total number of shares Netscape Common Stock issued by
Netscape to GEIS following the adjustment pursuant to Section 1.3(c) shall be
allocated 90.909% as purchase price for the Membership Interest and 9.091% as
license fees for the Source Code Rights.
1.4 NO FRACTIONAL SHARES. No fraction of a share of Netscape Common
Stock will be issued to GEIS, and no payment will be made by Netscape to GEIS
for any fraction of a share of Netscape Common Stock.
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1.5 TAX CONSEQUENCES. The Acquisition is intended by the parties to
be treated as a taxable purchase and sale of the Membership Interest for all
income tax purposes resulting in the termination of Actra under
Section 708(b)(1)(A) of the Internal Revenue Code of 1986, as amended (the
"CODE"). Netscape and GEIS shall each bear and pay their respective federal,
state, local and foreign taxes that may become payable in connection with GEIS's
sale of the Membership Interest to Netscape; provided, however, that GEIS shall
bear and pay any and all transfer taxes with respect to the sale of the
Membership Interest.
1.6 DELIVERY OF CERTIFICATES.
(a) At the Closing, Netscape shall, or shall cause its transfer
agent to, deliver to GEIS certificate(s) representing the number of whole shares
of Netscape Common Stock equal to the Closing Share Number pursuant to
Section 1.3(b).
(b) On the Effectiveness Date, Netscape shall, or shall cause
its transfer agent to (i) deliver to GEIS a certificate or certificates
representing the Additional Share Number, if Section 1.3(c)(ii) is applicable or
(ii) deliver to GEIS a certificate or certificates representing the
Effectiveness Share Number upon surrender thereof by GEIS of a certificate or
certificates equal to the Closing Share Number, if Section 1.3(c)(i) is
applicable.
1.7 LEGEND ON CERTIFICATES. The certificate or certificates issued
to GEIS pursuant to Section 1.3 and in accordance with Section 1.6 shall bear a
restrictive legend indicating that the shares represented by such certificate(s)
shall not be transferred prior to the Effectiveness Date.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF GEIS
GEIS hereby represents and warrants to Netscape, subject to such exceptions
as are specifically and accurately disclosed in the disclosure schedule
(referencing the appropriate section and paragraph numbers) supplied by GEIS to
Netscape (the "GEIS DISCLOSURE SCHEDULE") and dated as of the date hereof, as
follows:
2.1 ORGANIZATION, STANDING AND POWER. GEIS is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. GEIS has the corporate power to own its properties and to carry on
its business as now being conducted.
2.2 AUTHORITY. GEIS has all requisite 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 GEIS, and no further action is required on the
part of GEIS to authorize the Agreement and the transactions contemplated
hereby. This Agreement has been duly executed and delivered by GEIS and,
assuming the due authorization,
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execution and delivery by Netscape, constitutes the valid and binding obligation
of GEIS, enforceable in accordance with its terms except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting enforcement of creditors' rights generally and
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies.
2.3 OWNERSHIP OF MEMBERSHIP INTEREST. GEIS is the legal and
beneficial owner of the Membership Interest, and such Membership Interest is to
be sold pursuant to this Agreement. Other than arising under or pursuant to the
Formation and Limited Liability Company Agreement between GEIS and Netscape,
dated March 26, 1996, such Membership Interest is not subject to any Liens or to
any rights of first refusal of any kind, and GEIS has not granted any rights to
purchase such Membership Interest to any other person or entity. GEIS has the
sole right to transfer such Membership Interest to Netscape. To the knowledge
of GEIS, such Membership Interest constitutes all of the ownership rights in
Actra other than Netscape's (or any assignee or transferee of Netscape)
ownership rights in Actra. Upon the Closing, Netscape will receive good and
marketable title to GEIS's Membership Interest, subject to no Liens retained,
granted or permitted by GEIS. GEIS has not engaged in any sale or other
transfer of the Membership Interest in contemplation of the Acquisition or
otherwise.
2.4 ABSENCE OF CLAIMS BY GEIS. GEIS does not have any present claim
against Actra nor does it have any present intent to pursue any future claim
against Actra, whether contingent or unconditional, fixed or variable under any
contract or on any other legal basis whatsoever.
2.5 NO CONFLICT. Subject to satisfaction of the conditions set forth
in Article VI, the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby will not conflict with or result in any
violation of any material statute, law, rule, regulation, judgment, order,
decree or ordinance applicable to GEIS or its properties or assets, or conflict
with or result in any breach or default (with or without notice or lapse of
time, or both) (any such event, a "CONFLICT"), under (i) any provision of the
Certificate of Incorporation or Bylaws of GEIS or (ii) any material agreement,
contract, note, mortgage, indenture, lease, instrument, permit, concession,
franchise or license to which GEIS is a party or by which GEIS or its properties
or assets may be bound or affected, which conflict, breach or default could
reasonably be expected to adversely affect the ability of GEIS to consummate the
transactions contemplated hereby.
2.6 CONSENTS. No consent, waiver, approval, order or authorization
of, or registration, declaration or filing with, any court, administrative
agency or commission or other federal, state, county, local or foreign
governmental authority, instrumentality, agency or commission (each a
"GOVERNMENTAL ENTITY") or any third party, including a party to any agreement
with GEIS (so as not to trigger any Conflict), is required by or with respect to
GEIS in connection with the execution and delivery of this Agreement, or the
consummation by GEIS of the transactions contemplated hereby, except for
(i) such consents, waivers, approvals, orders, authorizations, registrations,
qualifications, declarations and filings as may be required under applicable
securities laws, and (ii) such filings as are required under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
ACT").
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2.7 INVESTMENT REPRESENTATIONS.
(a) INVESTMENT INTENT. GEIS is an "accredited investor" within
the meaning of Rule 501(a) under the Securities Act of 1933, as amended (the
"SECURITIES ACT"). GEIS is acquiring the Netscape Common Stock for GEIS's own
account for investment, and not for, with a view to, or in connection with the
resale or distribution thereof, except pursuant to registration under the
Securities Act. GEIS does not presently have an agreement or arrangement with
any person or firm to sell, pledge or otherwise transfer the Netscape Common
Stock. GEIS has adequate means of providing for GEIS's current needs and
possible contingencies and has no need for liquidity in the investment.
(b) INFORMATION ABOUT NETSCAPE. To the extent GEIS has
determined it to be appropriate, GEIS has consulted GEIS's attorney, accountant,
and other agents with respect to GEIS's acquisition of the Netscape Common
Stock. GEIS has fully investigated Netscape and its business and financial
condition and has knowledge of its current and anticipated activities. GEIS
acknowledges that Netscape has granted GEIS and GEIS's agents access to all
information about Netscape that they have requested in order to verify the
accuracy of the information in such documents and has offered GEIS and GEIS's
agents access to all further information that GEIS and GEIS's agents have deemed
relevant to an investment decision with respect to the Netscape Common Stock.
GEIS further acknowledges that GEIS is capable of evaluating the merits and
risks of the prospective investment in the Netscape Common Stock and that GEIS
and GEIS's agents have had the opportunity to ask questions of, and receive
answers from, representatives of Netscape concerning the terms and conditions of
the offering of the Netscape Common Stock.
(c) HIGH RISK. GEIS realizes that investment in the Netscape
Common Stock involves a high degree of risk. GEIS is able to bear the risk of
the investment, to hold the Netscape Common Stock for an indefinite period of
time and to suffer a complete loss of the investment.
(d) SECURITIES NOT REGISTERED. GEIS understands that the
Securities have not been registered under the Securities Act in reliance upon
exemptions therefrom.
(e) HELD INDEFINITELY. GEIS further understands that the
Netscape Common Stock may be disposed of only if subsequently registered under
the Securities Act or if an exemption from registration is otherwise available.
In addition, GEIS understands that the certificate(s) evidencing the Netscape
Common Stock will be imprinted with a legend which prohibits the transfer of the
Netscape Common Stock unless it is registered or such registration is not
required in the opinion of counsel satisfactory to Netscape.
(f) RULE 144. GEIS is familiar with the provisions of Rule 144
promulgated under the Securities Act ("RULE 144"), which, in substance, permits
limited public resale of "restricted securities" acquired, directly or
indirectly, from the issuer thereof, in a non-public offering subject to the
satisfaction of certain conditions, including, among other things: (i) the
availability of certain public information about Netscape, (ii) the resale
occurring not less than one year after the party has purchased and made full
payment for, within the meaning of Rule 144, the securities to be
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sold; and, in the case of an affiliate, or of a non-affiliate who has held the
securities less than two years, (iii) the sale being made through a broker in an
unsolicited "broker's transaction" or in transactions directly with a market
maker (as said term is defined under the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT")) and the amount of securities being sold during any
three month period not exceeding the specified limitations stated therein, if
applicable.
(g) NO PUBLIC MARKET. GEIS further understands that at the time
GEIS wishes to sell the Netscape Common Stock there may be no public market upon
which to make such a sale, and that, even if such a public market then exists,
Netscape may not be satisfying the current public information requirements of
Rule 144, and that, in such event, GEIS would be precluded from selling the
Netscape Common Stock under Rule 144 even if the one-year minimum holding period
had been satisfied.
(h) SUBSTANTIAL BURDEN OF PROOF. GEIS further understands that
in the event all of the applicable requirements of Rule 144 are not satisfied,
registration under the Securities Act, compliance with Regulation A under the
Securities Act, or some other registration exemption will be required; and that,
notwithstanding the fact that Rule 144 is not exclusive, the staff of the SEC
has expressed its opinion that persons proposing to sell private placement
securities other than in a registered offering and otherwise than pursuant to
Rule 144 will have a substantial burden of proof in establishing that an
exemption from registration is available for such offers or sales, and that such
persons and their respective brokers who participate in such transactions do so
at their own risk.
2.8 OTHER KNOWLEDGE. To the actual knowledge of GEIS's Management,
GEIS is not intentionally withholding information with regard to any facts or
circumstances regarding Actra's internal business operations which GEIS
reasonably believes are not known to Netscape, the occurrence or existence of
which would have a material adverse effect on the business assets (including
intangible assets), liabilities or financial condition of Actra. "GEIS's
Management" shall be defined as GEIS's Vice President of Finance, Vice President
of Business Development and Vice President of Product Development.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF NETSCAPE
Netscape hereby represents and warrants to GEIS, subject to such exceptions
as are specifically and accurately disclosed in the disclosure schedule
(referencing the appropriate section and paragraph numbers) supplied by Netscape
to GEIS (the "NETSCAPE DISCLOSURE SCHEDULE") and dated as of the date hereof, as
follows:
3.1 ORGANIZATION, STANDING AND POWER. Netscape is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Netscape has the corporate power to own its properties and to carry
on its business as now being conducted and is duly qualified
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to do business and is in good standing as a foreign corporation in each
jurisdiction in which the failure to be so qualified would have a material
adverse effect on Netscape.
3.2 AUTHORITY. Netscape 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 Netscape and no further action
is required on the part of Netscape to authorize this Agreement and the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by Netscape and, assuming the due authorization, execution and
delivery by GEIS, constitutes the valid and binding obligation of Netscape,
enforceable in accordance with its terms except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors' rights generally and (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies.
3.3 CAPITAL STRUCTURE. The authorized stock of Netscape consists of
200,000,000 shares of Common Stock, of which 90,652,050 shares were issued and
outstanding as of October 31, 1997, and 5,000,000 shares of Preferred Stock,
none of which is issued or outstanding. At the close of business on October 31,
1997, 12,348,312 shares of Netscape Common Stock were subject to issuance upon
the exercise of outstanding vested and unvested stock options ("NETSCAPE
RIGHTS"). No shares of Netscape Common Stock were held by Netscape in its
treasury. All the outstanding shares of Netscape Common Stock are validly
issued, fully paid and nonassessable. The shares of Netscape Common Stock
issuable in connection with the Acquisition have been duly authorized and
reserved for issuance and, when issued in accordance with the terms of this
Agreement, will be validly issued, fully paid and nonassessable.
3.4 NO CONFLICT. Subject to satisfaction of the conditions set forth
in Article VI, the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby, will not conflict with or result in any
violation of any material statute, law, rule, regulation, judgment, order,
decree or ordinance applicable to Netscape or its properties or assets, or
conflict with or result in any breach or default (with or without notice or
lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to loss of a material benefit
(any such event, a "NETSCAPE CONFLICT") under, (i) any provision of the
Certificate of Incorporation or Bylaws of Netscape or (ii) any material
agreement, contract, note, mortgage, indenture, lease, instrument, permit,
concession, franchise or license to which Netscape is a party or by which
Netscape or its properties or assets may be bound or affected, which conflict,
breach or default could reasonably be expected to have a material adverse effect
on Netscape.
3.5 CONSENTS. No consent, waiver, approval, order or authorization
of, or registration, declaration or filing with, any Governmental Entity or any
third party, including a party to any agreement with Netscape (so as not to
trigger any Netscape Conflict), is required by or with respect to Netscape in
connection with the execution and delivery of this Agreement, or the
consummation by Netscape of the transactions contemplated hereby, except for
(i) such consents, waivers,
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approvals, orders, authorizations, registrations, qualifications, declarations
and filings as may be required under applicable securities laws, and (ii) such
filings as are required under the HSR Act.
3.6 SEC DOCUMENTS; NETSCAPE FINANCIAL STATEMENTS. Netscape has
furnished or made available to GEIS true and complete copies of all reports or
registration statements filed by it with the SEC under the Exchange Act for all
periods since January 1, 1997, all in the form so filed (all of the foregoing
being collectively referred to as the "SEC DOCUMENTS"). As of their respective
filing dates, the SEC Documents complied in all material respects with the
requirements of the Securities Act or the Exchange Act, as the case may be, and
none of the SEC Documents contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements made therein, in light of the circumstances in which they
were made, not misleading, except to the extent corrected by a document
subsequently filed with the SEC. The financial statements of Netscape,
including the notes thereto, included in the SEC Documents (the "NETSCAPE
FINANCIAL STATEMENTS") comply as to form in all material respects with
applicable accounting requirements and with the published rules and regulations
of the SEC with respect thereto, have been prepared in accordance with GAAP
consistently applied (except as may be indicated in the notes thereto or, in the
case of unaudited statements, as permitted by Form 10-Q of the SEC) and present
fairly the consolidated financial position of Netscape at the dates thereof and
the consolidated results of its operations and cash flows for the periods then
ended (subject, in the case of unaudited statements, to normal audit
adjustments). There has been no change in Netscape accounting policies except
as described in the notes to the Netscape Financial Statements.
3.7 S-3 ELIGIBILITY. As of the date hereof, Netscape meets, and as
of the Closing Date, Netscape will meet, all of the conditions necessary for the
use of Form S-3 for the registration of the Netscape Common Stock as
contemplated hereby and in the Declaration of Registration Rights (as defined
below).
3.8 NO MATERIAL ADVERSE CHANGE. Since the date of the balance sheet
included in the Netscape's most recently filed report on Form 10-Q or Form 10-K,
Netscape has conducted its business in the ordinary course and there has not
occurred: (a) any material adverse change in the financial condition,
liabilities, assets or business of Netscape; (b) any amendment or change in the
Certificate of Incorporation or Bylaws of Netscape, or (c) any damage to,
destruction or loss of any assets of the Netscape (whether or not covered by
insurance) that materially and adversely affects the financial condition or
business of Netscape.
3.9 LITIGATION. There is no action, suit, proceeding, claim,
arbitration or investigation pending, or as to which Netscape has received any
notice of assertion against Netscape, which (i) in any manner challenges or
seeks to prevent, enjoin, alter or materially delay any of the transactions
contemplated by this Agreement or (ii) has not previously been disclosed in SEC
Documents or is not currently required to be disclosed in any filings under the
Exchange Act.
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ARTICLE IV
CONDUCT PRIOR TO THE CLOSING
4.1 NO SOLICITATION.
(a) From and after the date of this Agreement until the earlier
of (i) the Closing or (ii) termination of this Agreement pursuant to
Section 8.1, GEIS will not, directly or indirectly through any of its directors,
officers, employees, representatives, investment bankers, agents or affiliates
(i) solicit or encourage submission of any inquiries, proposals or offers by any
person, entity or group (other than Netscape, and its affiliates, agents and
representatives), or (ii) participate in any discussions or negotiations with,
or disclose any information concerning Actra to, or afford any access to the
properties, books or records of Actra to, or otherwise assist, facilitate or
encourage, or enter into any agreement or understanding with, any person, entity
or group (other than Netscape and its affiliates, agents and representatives),
in connection with any Acquisition Proposal. For the purposes of this
Agreement, an "ACQUISITION PROPOSAL" shall mean any inquiry or proposal relating
to any sale or transfer of an ownership interest in Actra. Upon execution of
this Agreement, GEIS does not have, or will immediately cease any and all,
existing activities, discussions or negotiations with any parties conducted
heretofore with respect to any of the foregoing.
(b) GEIS will (i) notify Netscape promptly (and in any event
within 24 hours) if any proposal is made or any information or access is
requested in connection with an Acquisition Proposal and (ii) promptly (and in
any event within 24 hours) communicate to Netscape in reasonable detail the
terms and conditions of any such Acquisition Proposal and the identity of the
offeror.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 SALE AND REGISTRATION OF SHARES; SHAREHOLDER MATTERS.
(a) SALE OF SHARES. The parties hereto acknowledge and agree
that the shares of Netscape Common Stock issuable to GEIS pursuant to Section
1.3 and in accordance with the provisions of Section 1.6 hereof, shall
constitute "restricted securities" within the meaning of the Securities Act.
The certificates for shares of Netscape Common Stock to be issued in the
Acquisition shall bear appropriate legends to identify such privately placed
shares as being restricted under the Securities Act, to comply with applicable
state securities laws. It is acknowledged and understood that Netscape is
relying upon the written representations made by GEIS in Section 2.7 hereof in
making such private placement.
(b) REGISTRATION STATEMENT ON FORM S-3. Within seven (7) days
after the Closing Date, Netscape will file a Registration Statement on Form S-3
(the "REGISTRATION STATEMENT") with
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the SEC covering the resale of the shares of Netscape Common Stock issued to
GEIS pursuant hereto; provided, however, that any such registration shall be
subject to the terms and conditions set forth in the Declaration of Registration
Rights attached hereto as EXHIBIT C.
(c) ADDITIONAL ASSURANCES. At the request of Netscape, GEIS
shall execute and deliver to Netscape such instruments and do and perform such
acts and things as may be necessary or desirable for complying with all
applicable securities laws and state corporate laws in connection with the
transactions contemplated hereby.
5.2 CONFIDENTIALITY. Each of the parties hereto hereby agrees to
keep confidential such information or knowledge obtained pursuant to the
negotiation and execution of this Agreement or the effectuation of the
transactions contemplated hereby; provided, however, that the foregoing shall
not apply to information or knowledge which (a) a party can demonstrate was
already lawfully in its possession prior to the disclosure thereof by the other
party, (b) is generally known to the public and did not become so known through
any violation of law, (c) became known to the public through no fault of such
party, (d) is later lawfully acquired by such party from other sources, (e) is
required to be disclosed by order of court or government agency with subpoena
powers or (f) which is disclosed in the course of any litigation between any of
the parties hereto. The provisions of this Section 5.2 shall in no way affect
the rights or obligations of any party concerning confidentiality under any
other agreement among such parties and/or Actra.
5.3 EXPENSES.
(a) Pending the Closing, GEIS shall continue to fund its pro
rata share of any additional capital contributions approved by GEIS and Netscape
pursuant to Section 3.02 of the Formation and Limited Liability Company
Agreement between GEIS and Netscape dated March 26, 1996. GEIS agrees that it
will not unreasonably withhold its consent to any additional capital
contribution that is reasonably required pursuant to the 1997 operating budget
for Actra previously adopted by GEIS and Netscape. Notwithstanding the
foregoing, in no event will GEIS be required to approve additional capital
contributions by GEIS of more than $500,000 in the aggregate between the date
hereof and the date of the Closing. GEIS's payment obligation of $500,000
pursuant to that certain Distribution Agreement between GEIS and Actra dated
August 1, 1997, is independent of and will not be affected by this
Section 5.3(a).
(b) Except as forth in this Section 5.3 and in Section 5.7, all
fees and expenses incurred in connection with the Acquisition, including,
without limitation, all legal, accounting, financial advisory, consulting and
all other fees and expenses of third parties ("THIRD PARTY EXPENSES"), shall be
borne by the party that incurred such Third Party Expenses. In addition, if the
Acquisition is consummated, GEIS agrees to pay fifty percent (50%) of the
reasonable out-of-pocket legal fees and expenses incurred by Actra in connection
with the Formation Agreement dated October 8, 1997 and the conversion of Actra
into a Subchapter C (of the Code) corporation as contemplated therein.
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5.4 PUBLIC DISCLOSURE. Unless otherwise required by law (including,
without limitation, federal and state securities laws) or by the rules and
regulations of The Nasdaq Stock Market, Inc. or any applicable stock exchange,
no disclosure (whether or not in response to an inquiry) of the subject matter
of this Agreement shall be made prior to the effectiveness of the Registration
Statement described in Section 5.1(b) by any party hereto unless approved by
Netscape and GEIS prior to release, provided that such approval shall not be
unreasonably withheld and once given shall continue in effect.
5.5 REASONABLE EFFORTS; FURTHER ASSURANCES. Subject to the terms and
conditions provided in this Agreement, each of the parties hereto shall use its
reasonable efforts to ensure that its representations and warranties remain true
and correct in all material respects, and to take promptly, or cause to be
taken, all actions, and to do promptly, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated hereby, to obtain
all necessary waivers, consents and approvals, to effect all necessary
registrations and filings, and to remove any injunctions or other impediments or
delays, legal or otherwise, in order to consummate and make effective the
transactions contemplated by this Agreement for the purpose of securing to the
parties hereto the benefits contemplated by this Agreement; provided that
Netscape shall not be required to agree to any divestiture by Netscape of Actra
or any of Netscape's subsidiaries or affiliates of shares of capital stock or of
any business, assets or property of Netscape or its subsidiaries or affiliates
or Actra or its affiliates, 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.
5.6 NOTIFICATION OF CERTAIN MATTERS. GEIS shall give prompt notice
to Netscape, and Netscape shall give prompt notice to GEIS, of (i) the
occurrence or non-occurrence of any event, the occurrence or non-occurrence of
which is likely to cause any representation or warranty of GEIS or Netscape, as
the case may be, contained in this Agreement to be untrue or inaccurate at or
prior to the Closing, and (ii) any failure of GEIS or Netscape, as the case may
be, to comply with or satisfy any covenant, condition or agreement to be
complied with or satisfied by it hereunder; provided, however, that the delivery
of any notice pursuant to this Section 5.6 shall not limit or otherwise affect
any remedies available to the party receiving such notice.
5.7 TAX MATTERS. Netscape shall be responsible for filing all
federal, state, local and foreign income tax returns of Actra for the short tax
year ending on the Closing Date. Such returns shall be prepared in a manner
consistent with applicable law and past practices, if any, and the costs of such
returns shall be borne equally by Netscape and GEIS.
5.8 NASDAQ NATIONAL MARKET LISTING. Netscape shall authorize for
listing on the Nasdaq National Market the shares of Netscape Common Stock
issuable, and those required to be reserved for issuance, in connection with the
Acquisition, upon official notice of issuance.
5.9 ADDITIONAL DOCUMENTS. Each party hereto, at the request of the
other party hereto, shall execute and deliver such other instruments as may be
necessary or desirable for effecting completely the consummation of this
Agreement and the transactions contemplated hereby.
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5.10 REGISTRATION RIGHTS. GEIS agrees to abide by the provisions
contained in the Declaration of Registration Rights attached hereto as EXHIBIT C
(the "DECLARATION OF REGISTRATION RIGHTS").
5.11 ACCESS TO BOOKS AND RECORDS. Following the Closing, upon
reasonable notice, Netscape shall cause Actra to provide GEIS with reasonable
access during normal business hours to all books and records and with such
cooperation, assistance and access to Actra personnel as GEIS may reasonably
request for the purpose of permitting GEIS to obtain any information with
respect to taxes or any other reasonable purpose. Netscape shall also cause
Actra to provide GEIS with such cooperation and information as GEIS may
reasonably request with respect to the filing of any tax return, amended tax
return or claim for refund, determining a liability for taxes or a right to a
refund of taxes or conducting any audit or any other procedure in respect of
taxes. GEIS shall be required to reimburse Actra for any out-of-pocket expenses
incurred by Actra in connection with performing the services requested by GEIS
under this Section 5.11. Netscape agrees to cause Actra to retain all material
records or other documents relating to tax matters of Actra and its members for
taxable periods through the date of Closing until six months after the
expiration of the longest applicable statute of limitations or for such longer
period as may be reasonably requested by GEIS.
5.12 NONSOLICITATION OF EMPLOYEES.
(a) Unless otherwise agreed to by GEIS and Netscape, for a
period of one year following the Closing Date, Netscape shall not, nor shall it
permit Actra or any of its affiliates or any employee, officer, director,
consultant or agent of Netscape, Actra or any of their affiliates to, recruit or
attempt to recruit for the purposes of employment by or provision of services to
Netscape, Actra or any of their affiliates, any person that is employed by GEIS
currently or on the date of Closing and with whom Netscape or Actra had contact
as a result of GEIS's ownership of the Membership Interest and the transactions
related thereto.
(b) Unless otherwise agreed to by GEIS and Netscape, for a
period of one year following the Closing Date, GEIS shall not, nor shall it
permit any of its affiliates or any employee, officer, director, consultant or
agent of GEIS or any of its affiliates to, recruit or attempt to recruit for the
purposes of employment by or provision of services to GEIS or any of its
affiliates, any person that is employed by Netscape or Actra currently or on the
date of Closing and with whom GEIS had contact as a result of GEIS's ownership
of the Membership Interest and the transactions related thereto.
5.13 MUTUAL RELEASE. Each of Netscape and GEIS does hereby fully,
irrevocably and unconditionally release and forever discharge the other party
and its affiliates, and such other party's and its affiliates' successors,
assigns, directors, officers, employees and agents (collectively, the "Released
Parties"), of and from any and all obligations, debts, causes of action, suits,
controversies, damages and any and all claims, demands and liabilities
whatsoever, both in law and at equity, known or unknown, that such party has as
of the date hereof or will have as of the Closing Date or may ever have had as
of or prior to the date hereof against the Released Parties arising out of or
relating in any way to the Formation and Limited Liability Company Agreement,
dated March 26,
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1996, and the transactions contemplated thereby or related thereto, including
any claims arising out of Netscape's and GEIS's joint ownership of Actra.
Notwithstanding the foregoing, this release (a) shall not be applicable if this
Agreement is terminate pursuant to Section 8.1 and (b) shall not relieve
Netscape or GEIS from any of the covenants and obligations pursuant to the
agreements set forth herein or the Distribution Agreement between GEIS and Actra
or the Global System Integrator Agreement between Netscape and GEIS.
ARTICLE VI
CONDITIONS TO THE ACQUISITION
6.1 CONDITIONS TO OBLIGATIONS OF EACH PARTY TO EFFECT THE
ACQUISITION. The respective obligations of each party to this Agreement to
effect the Acquisition shall be subject to the satisfaction at or prior to the
Closing of the following conditions:
(a) GOVERNMENT APPROVALS. All approvals of governments and
governmental agencies necessary to consummate the transactions hereunder shall
have been received.
(b) NO INJUNCTIONS OR RESTRAINTS; ILLEGALITY. No temporary
restraining order, preliminary or permanent injunction or other order issued by
any court of competent jurisdiction or other legal or regulatory restraint or
prohibition preventing the consummation of the Acquisition shall be in effect.
(c) NASDAQ LISTING. The shares of Netscape Common Stock
issuable to GEIS pursuant to this Agreement and such other shares required to be
reserved for issuance in connection with the Acquisition shall have been
authorized for listing on the Nasdaq National Market upon official notice of
issuance.
(d) LOGISTICS TRACKING SYSTEM SOURCE CODE LICENSE
AGREEMENT. GEIS and Netscape shall have entered into the License Agreement in
the form of EXHIBIT A hereto.
(e) SOFTWARE DISTRIBUTION AGREEMENT. Netscape and GEIS shall
have entered into a Software Distribution Agreement in the form of EXHIBIT D
attached hereto.
6.2 ADDITIONAL CONDITIONS TO OBLIGATIONS OF GEIS. The obligations of
GEIS to consummate the Acquisition and the transactions contemplated by this
Agreement shall be subject to the satisfaction at or prior to the Closing of
each of the following conditions, any of which may be waived, in writing,
exclusively by GEIS:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Netscape contained in this Agreement shall be true and correct in
all material respects on and as of the Closing Date, except for changes
contemplated by this Agreement and except for those representations and
warranties which address matters only as of a particular date (which shall
remain
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true and correct as of such date), with the same force and effect as if made on
and as of the Closing Date, except, in all such cases, for such breaches,
inaccuracies or omissions of such representations and warranties which have
neither had nor reasonably would be expected to have a material adverse effect
on Netscape; and GEIS shall have received a certificate to such effect signed on
behalf of Netscape by a duly authorized officer of Netscape.
(b) AGREEMENTS AND COVENANTS. Netscape 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 on or prior to the
Closing, and GEIS shall have received a certificate to such effect signed by a
duly authorized officer of Netscape.
(c) THIRD PARTY CONSENTS. GEIS shall have been furnished with
evidence satisfactory to it that Netscape has obtained the consents, approvals
and waivers set forth in Section 3.4 of the Netscape Disclosure Schedule.
(d) LEGAL OPINION. GEIS shall have received a legal opinion
from Wilson Sonsini Goodrich & Rosati, counsel to Netscape, in substantially the
form attached hereto as EXHIBIT E.
6.3 ADDITIONAL CONDITIONS TO THE OBLIGATIONS OF NETSCAPE. The
obligations of Netscape to consummate the Acquisition and the transactions
contemplated by this Agreement shall be subject to the satisfaction at or prior
to the Closing of each of the following conditions, any of which may be waived,
in writing, exclusively by Netscape:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of GEIS contained in this Agreement shall be true and correct in all
material respects on and as of the Closing Date, except for changes contemplated
by this Agreement and except for those representations and warranties which
address matters only as of a particular date (which shall remain true and
correct as of such date), with the same force and effect as if made on and as of
the Closing Date, except, in all such cases, for such breaches, inaccuracies or
omissions of such representations and warranties which have neither had nor
reasonably would be expected to have a material adverse effect on Actra or GEIS;
and Netscape shall have received a certificate to such effect signed on behalf
of GEIS by a duly authorized officer of GEIS.
(b) AGREEMENTS AND COVENANTS. GEIS 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 on or prior to the
Closing, and Netscape shall have received a certificate to such effect signed by
a duly authorized officer of GEIS.
(c) THIRD PARTY CONSENTS. Netscape shall have been furnished
with evidence satisfactory to it that GEIS has obtained the consents, approvals
and waivers set forth in Section 2.5 of the GEIS Disclosure Schedule.
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(d) LEGAL OPINION. Netscape shall have received a legal opinion
from King & Spalding, legal counsel to GEIS or Bruce E. Hunter, Vice President
and General Counsel of GEIS, in substantially the form attached hereto as
EXHIBIT F.
(e) RESIGNATION FROM MEMBERS COMMITTEE. The person appointed by
GEIS to the Members Committee of Actra shall have resigned from the Members
Committee effective upon the Closing.
ARTICLE VII
DISPUTE RESOLUTION
7.1 RESOLUTION OF DISPUTES; MEDIATION.
(a) Any claim, action, suit or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this
Agreement or the transactions contemplated hereby shall be brought only in the
United States District Court for the District of Delaware or any court of the
State of Delaware, and each of the parties hereto hereby consents to the
jurisdiction of such courts (and of the appropriate appellate courts therefrom
in any such claim, action, suit or proceeding) and irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of venue of any such claim, action, suit or proceeding in any
such court or that any such claim, action, suit or proceeding which is brought
in any such court has been brought in an inconvenient forum. Subject to
applicable law, process in any such claim, action, suit or proceeding may be
served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing and subject to
applicable law, each party agrees that service of process on such party, as
provided in Section 9.2 shall be deemed effective service of process on such
party. Nothing herein shall affect the right of any party to serve legal
process in any other manner permitted by law or at equity. WITH RESPECT TO ANY
SUCH CLAIM, ACTION, SUIT OR PROCEEDING IN ANY SUCH COURT, EACH OF THE PARTIES
HERETO IRREVOCABLY WAIVES AND RELEASES TO THE OTHER ITS RIGHT TO A TRIAL BY
JURY, AND AGREES THAT IT WILL NOT SEEK A TRIAL BY JURY IN ANY SUCH PROCEEDING.
(b) Before any party hereto initiates judicial proceedings in
respect of any action or matter relating to this Agreement or the transactions
contemplated hereby, that party shall first refer such matter to the Chief
Executive Officer of such party. Following such referral, the Chief Executive
Officers of Netscape and GEIS shall take all reasonable steps to resolve such
disagreement and shall negotiate in good faith with each other to such end. If
the disagreement is not resolved in the course of such negotiations between the
Chief Executive Officers of Netscape and GEIS, such Chief Executive Officers,
shall consult with a neutral third party mediator and shall use their best
reasonable efforts to procure a determination from such mediator within two
weeks of the date on which the mediator was first consulted. Unless the parties
agree to the contrary in writing, any advice or decision of the mediator shall
not be binding upon the parties.
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ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
8.1 TERMINATION. Except as provided in Section 8.2 below, this
Agreement may be terminated and the Acquisition abandoned at any time prior to
the Closing.
(a) by mutual written consent of GEIS and Netscape;
(b) by Netscape or GEIS if: (i) the Closing has not occurred
before 5:00 p.m. (Pacific time) on December 31, 1997 (provided that the right to
terminate this Agreement under this clause 8.1(b)(i) shall not be available to
any party whose willful failure to fulfill any obligation hereunder has been the
cause of, or resulted in, the failure of the Closing to occur on or before such
date); (ii) there shall be a final nonappealable order of a federal or state
court in effect preventing consummation of the Acquisition; or (iii) there shall
be any statute, rule, regulation or order enacted, promulgated or issued or
deemed applicable to the Acquisition by any Governmental Entity that would make
consummation of the Acquisition illegal;
(c) by Netscape if there shall be any action taken, or any
statute, rule, regulation or order enacted, promulgated or issued or deemed
applicable to the Acquisition, by any Governmental Entity, which would: (i)
prohibit Netscape's ownership or operation of all or any portion of the business
of Actra or (ii) compel Netscape to dispose of or hold separate all or a portion
of the business or assets of Actra as a result of the Acquisition;
(d) by Netscape, if it is not in material breach of its
obligations under this Agreement and there has been a breach of any
representation, warranty, covenant or agreement contained in this Agreement on
the part of GEIS and (i) such breach has not been cured within ten (10) business
days after written notice to GEIS (provided that, no cure period shall be
required for a breach which by its nature cannot be cured), and (ii) as a result
of such breach the conditions set forth in Section 6.3(a) or 6.3(b), as the case
may be, would not then be satisfied;
(e) by GEIS, if it is not in material breach of its obligations
under this Agreement and there has been a breach of any representation,
warranty, covenant or agreement contained in this Agreement on the part of
Netscape and (i) such breach has not been cured within ten (10) business days
after written notice to Netscape (provided that, no cure period shall be
required for a breach which by its nature cannot be cured), and (ii) as a result
of such breach the conditions set forth in Section 6.2(a) or 6.2(b), as the case
may be, would not then be satisfied.
8.2 EFFECT OF TERMINATION. In the event of termination of this
Agreement as provided in Section 8.1, this Agreement shall forthwith become
void, and there shall be no liability or obligation on the part of either party,
or their respective officers, directors or shareholders, provided that each
party shall remain liable for any breaches of this Agreement prior to its
termination; and provided
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further that, the provisions of Sections 5.2, 5.3 and 5.4 and Articles VIII and
IX (other than Section 9.1) of this Agreement shall remain in full force and
effect and survive any termination of this Agreement.
8.3 AMENDMENT. 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
the parties hereto.
8.4 EXTENSION; WAIVER. At any time prior to the Closing, Netscape,
on the one hand, and GEIS, on the other, may, to the extent legally allowed,
(i) extend the time for the performance of any of the obligations of the other
party 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.
ARTICLE IX
GENERAL PROVISIONS
9.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties in this Agreement shall survive the consummation of the
Acquisition and shall (except to the extent that survival is necessary to
effectuate the intent of such provisions) terminate twelve (12) months after the
Closing Date.
9.2 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 mailed by registered or certified mail (return receipt
requested) or sent via facsimile (with acknowledgment of complete transmission)
to the parties at the following addresses (or at such other address for a party
as shall be specified by like notice):
(a) if to Netscape, to:
Netscape Communications Corporation
501 East Middlefield Road
Mountain View, CA 94043
Attention: Roberta R. Katz, Esq.
Telephone No.: (650) 937-2764
Facsimile No.: (650) 428-4366
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<PAGE>
with a copy to:
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, California 94304-1050
Attention: Larry W. Sonsini, Esq.
Herbert P. Fockler, Esq.
Telephone No.: (650) 493-9300
Facsimile No.: (650) 493-6811
(b) if to GEIS, to:
GE Information Services, Inc.
401 N. Washington Street
Rockville, MD 20850
Attention: Bruce Hunter, Esq.
Telephone No.: (301) 340-5342
Facsimile No.: (301) 340-4251
9.3 INTERPRETATION. 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.
9.4 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.
9.5 ENTIRE AGREEMENT; ASSIGNMENT. This Agreement, the Schedules and
Exhibits hereto or delivered herewith, and the documents and instruments and
other agreements among the parties hereto referenced herein: (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; (b) are not intended to
confer upon any other person any rights or remedies hereunder; and (c) shall not
be assigned by operation of law or otherwise except as otherwise specifically
provided, except that Netscape may assign its rights and delegate its
obligations hereunder to its affiliates.
9.6 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,
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to the extent possible, the economic, business and other purposes of such void
or unenforceable provision.
9.7 OTHER REMEDIES. 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.
9.8 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 laws thereof.
Each of the parties hereto agrees that process may be served upon them in any
manner authorized by the laws of the State of Delaware for such persons and
waives and covenants not to assert or plead any objection which they might
otherwise have to such jurisdiction and such process.
9.9 NO THIRD PARTY BENEFICIARIES. This Agreement shall be binding
upon and inure solely to the benefit of the parties hereto and their permitted
assigns, and nothing herein, express or implied, is intended to or shall confer
upon any other person any legal or equitable right, benefit or remedy of any
nature whatsoever.
9.10 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.
9.11 SPECIFIC PERFORMANCE. 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 an
injunction or 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Netscape and GEIS have caused this Agreement to be
signed by their duly authorized respective officers, all as of the date first
written above.
NETSCAPE COMMUNICATIONS GE INFORMATION SERVICES, INC.
CORPORATION
By: /s/ Peter L. S. Currie By: /s/ Venkat A. Mohan
---------------------------------- ------------------------
Name: Peter L. S. Currie Name: Venkat A. Mohan
Title: Executive Vice President Title: Vice President
and Chief Executive Officer
[PURCHASE AGREEMENT]
<PAGE>
OMITTED ATTACHMENTS TO THE PURCHASE AGREEMENT
The following attachments to the Purchase Agreement have been omitted
pursuant to Item 601(b)(2) of Regulation S-K. Netscape hereby undertakes to
provide to the Securities and Exchange Commission copies of such documents upon
request; provided, however, that Netscape reserves the right to request
confidential treatment for portions of any such documents.
ATTACHMENT DESCRIPTION
Exhibit A Logistic Tracking System Source Code License Agreement
Exhibit B Form of Bill of Sale and Assignment
Exhibit C Form of Declaration of Registration Rights. (filed hereto as
Exhibit 4.1 to this Form 8-K)
Exhibit D Software Distribution Agreement
Exhibit E Form of Legal Opinion of Counsel to Netscape
Exhibit F Form of Legal Opinion to Counsel of GEIS
<PAGE>
NETSCAPE COMMUNICATIONS CORPORATION
DECLARATION OF REGISTRATION RIGHTS
This Declaration of Registration Rights ("DECLARATION") is made as of
____________, 199__ by Netscape Communications Corporation, a Delaware
corporation ("NETSCAPE"), for the benefit of GE Information Services, Inc., a
Delaware corporation ("GEIS"), in connection with GEIS acquiring shares of
Common Stock of Netscape pursuant to that certain Purchase Agreement dated as of
November __, 1997 (the "PURCHASE AGREEMENT"), between Netscape and GEIS.
1. DEFINITIONS. As used in this Declaration:
a. "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
b. "SECURITIES ACT" means the Securities Act of 1933, as amended.
c. "FORM S-3" means such form under the Securities Act as in effect on
the date hereof or any registration form under the Securities Act subsequently
adopted by the Commission which similarly permits inclusion or incorporation of
substantial information by reference to other documents filed by Netscape with
the Commission.
d. "HOLDER" means: (i) GEIS for so long as GEIS continues to hold
Registrable Securities issued pursuant to the Purchase Agreement, or (ii) a
transferee of Registrable Securities by a Holder, to whom registration rights
under this Declaration are assigned pursuant to Section 10 of this Declaration.
e. "REGISTRABLE SECURITIES" means (i) with respect to each Holder, the
shares of Netscape Common Stock initially issued to GEIS pursuant to the
Purchase Agreement or subsequently transferred by GEIS or another Holder to such
Holder pursuant to Section 10 of this Declaration, together with all other
shares of Netscape Common Stock issued in respect thereof (by way of stock
split, dividend or otherwise), and (ii) with respect to all Holders, the
aggregate of all Registrable Securities held by all such Holders. Registrable
Securities shall not include any shares of Netscape Common Stock transferred by
a Holder pursuant to Section 10 hereof to any person who does not agree to be
bound by the terms of this Declaration.
f. "SEC" means the Securities and Exchange Commission.
Capitalized terms not otherwise defined herein have the meanings given to
them in the Purchase Agreement.
<PAGE>
2. REGISTRATION. Netscape shall use commercially reasonable efforts to
cause the Registrable Securities held by each Holder following the Acquisition
to be registered under the Securities Act so as to permit the resale thereof as
soon as practicable after the Closing Date, and in connection therewith shall
prepare and file with the SEC as soon as practicable after the Closing Date, but
in no event later than seven (7) days immediately following the Closing Date,
and shall use its commercially reasonable efforts to cause to become effective
as soon as practicable thereafter, a registration statement on Form S-3 covering
the resale of the Registrable Securities pursuant to Rule 415 under the
Securities Act; provided, however, that each Holder shall provide all such
information and materials to Netscape and take all such action as may be
required in order to permit Netscape to comply with all applicable requirements
of the SEC and to obtain any desired acceleration of the effective date of such
registration statement. Such provision of information and materials is a
condition precedent to the obligations of Netscape pursuant to this Declaration.
Netscape shall not be required to effect more than one (1) registration under
this Declaration.
3. POSTPONEMENT OF REGISTRATION. Notwithstanding the provisions of
Section 2 above, Netscape shall be entitled to postpone the declaration of
effectiveness of the registration statement prepared and filed pursuant to
Section 2 (i) for three (3) business days after the SEC has informed Netscape
that it will not review such registration statement or that the SEC has no
further comments on such registration statement (either event, the "SEC
CLEARANCE DATE") and (ii) for a reasonable period of time after the SEC
Clearance Date, but not in excess of thirty (30) days after the SEC Clearance
Date, if the Chief Executive Officer or Chief Financial Officer of Netscape,
acting in good faith, determines and advises GEIS in writing that there exists
any material nonpublic information about Netscape the disclosure of which would
not be in the best interests of Netscape's stockholders, which information would
otherwise be required by the Securities Act to be disclosed in the registration
statement to be filed pursuant to Section 2 above or required by the Exchange
Act to be disclosed in any filing under the Exchange Act.
4. OBLIGATIONS OF NETSCAPE. Subject to the limitations of Sections 5 and
11, Netscape shall (i) keep the registration statement filed in accordance with
Section 2 hereof effective and current until the earlier of (A) one (1) year
after the Closing Date or (B) such time as all Registrable Securities have been
sold thereunder or otherwise; (ii) prepare and file with the SEC such amendments
and supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to comply with the provisions of the
Securities Act with respect to the sale or other disposition of all securities
proposed to be registered in such registration statement; (iii) furnish to each
Holder such number of copies of any prospectus (including any preliminary
prospectus and any amended or supplemented prospectus) in conformity with the
requirements of the Securities Act, and such other documents, as each Holder may
reasonably request in order to effect the offering and sale of the shares of the
Registrable Securities to be offered and sold, but only while Netscape shall be
required under the provisions hereof to cause the registration statement to
remain current; (iv) use its commercially reasonable efforts to register or
qualify the Registrable Securities under the securities or blue sky laws of such
jurisdictions as each Holder shall reasonably request (provided that Netscape
shall not be required in connection therewith or as a condition thereto to
qualify to do business or to file a general consent to service of process in any
such jurisdiction where it has not been qualified); (v) promptly notify the
Holders when such registration statement or the prospectus included therein or
any prospectus
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<PAGE>
amendment or supplement or post-effective amendment has been filed, and, with
respect to such registration statement or any post-effective amendment, when the
same has become effective; (vi) cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be sold, which certificates shall conform to the requirements of
The Nasdaq National Market or any securities exchange on which the Registrable
Securities are then listed or admitted to trading; and (vii) use its
commercially reasonable efforts to list the Registrable Securities covered by
such registration statement with any securities exchange or quotation system on
which the publicly traded securities of Netscape are then listed or quoted.
5. SELLING PROCEDURES. Any sale of Registrable Securities pursuant to
the registration statement filed in accordance with Section 2 hereof shall be
subject to the following conditions and procedures:
(a) STOCKHOLDER NOTICE: The selling Holder shall provide written
notice ("STOCKHOLDER NOTICE") to Netscape no less than five (5) business days
prior to such Holder's intended sale in substantially the form of ANNEX A
attached hereto. Within two (2) business days of receipt of the Stockholder
Notice, Netscape will inform such Holder in writing if the registration
statement and final prospectus then on file with the SEC is current and
otherwise complies with the Securities Act such that sales may be made
thereunder. After receipt of notice from Netscape that the registration
statement is current and complies with the Securities Act, such Holder shall
then have ten (10) business days after the date of the intended sale, as
specified in the Stockholder Notice, to sell the Registrable Securities proposed
to be sold. After such ten (10) day period, the seller shall once again comply
with the procedures set forth in this Section 5(a) prior to any further sales;
(b) UPDATING THE PROSPECTUS: If Netscape informs the selling Holder
that the registration statement or final prospectus then on file with the SEC is
not current or otherwise does not comply with the Securities Act, Netscape shall
use commercially reasonable efforts to provide to the selling Holder and file
with the SEC, if necessary, a current prospectus that complies with the
Securities Act on or before the date of the intended sale of the Registrable
Securities as disclosed in the Stockholder's Notice, or, if it is not possible
for such current prospectus to be delivered on such date, then as soon as
possible thereafter; PROVIDED that no more than two (2) times during any
12-month period, Netscape may delay the preparation of and delivery to the
Holders of a current prospectus for up to thirty (30) days on each such occasion
if the Chief Executive Officer or Chief Financial Officer of Netscape, acting in
good faith, determines and advises GEIS in writing that there exists any
material nonpublic information about Netscape the disclosure of which would not
be in the best interests of Netscape's stockholders, and which information would
otherwise be required by the Securities Act to be disclosed in such current
prospectus or required by the Exchange Act to be disclosed in any filing under
the Exchange Act;
(c) GENERAL: Notwithstanding the foregoing, Netscape shall notify
each Holder (A) of any request by the SEC or any other federal or state
governmental authority during the period of effectiveness of the registration
statement for amendments or supplements to the registration statement or related
prospectus or for additional information relating to the registration statement,
(B) of the issuance by the SEC or any other federal or state governmental
authority of any stop order suspending
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<PAGE>
the effectiveness of the registration statement or the initiation of any
proceedings for that purpose, (C) of the receipt by Netscape of any notification
with respect to the suspension of the qualification or exemption from
qualification of any of the Registrable Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose, or (D) of
the happening of any event which makes any statement made in the registration
statement or related prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or which
requires the making of any changes in the registration statement or prospectus
so that, in the case of the registration statement, it will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
and that in the case of the prospectus, it will not contain an untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading. In such event, Netscape may suspend use of the prospectus
on written notice to each Holder, in which case each Holder shall not dispose of
Registrable Securities covered by the registration statement or prospectus until
copies of a supplemented or amended prospectus are distributed to the Holders or
until the Holders are advised in writing by Netscape that the use of the
applicable prospectus may be resumed. Netscape shall use its commercially
reasonable efforts to obtain the withdrawal of any order suspending the
effectiveness of the registration statement, or the lifting of any suspension of
the qualification (or exemption from qualification) of any of the securities for
sale in any jurisdiction, at the earliest practicable moment. Subject to the
provisions of Sections 5(a) and 5(b), Netscape shall, upon the occurrence of any
event contemplated by clause (D), as soon as practicable but in any event within
15 days, prepare and file with the SEC a supplement or post-effective amendment
to the registration statement or a supplement to the related prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable Securities
being sold thereunder, such prospectus will not contain an untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
6. AVAILABILITY OF FORM S-3. Netscape represents that it is currently
eligible to utilize Form S-3 for the registration for resale of its Common
Stock.
7. EXPENSES. Netscape shall pay all of the out-of-pocket expenses
incurred, other than underwriting or selling discounts and commissions and the
fees and disbursements of any counsel retained by GEIS, in connection with the
registration of Registrable Securities pursuant to this Declaration, including,
without limitation, all SEC, National Association of Securities Dealers, Inc.
and blue sky registration and filing fees, listing or quotation fees, printing
expenses, transfer agents' and registrars' fees, and the reasonable fees and
disbursements of Netscape's outside counsel and independent accountants.
8. INDEMNIFICATION. In the event of any offering registered pursuant to
this Declaration:
(a) INDEMNIFICATION BY NETSCAPE: Netscape will indemnify each
Holder, such Holder's directors and officers and each person controlling a
Holder, 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
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<PAGE>
statement) of a material fact contained in any registration statement, final
prospectus, or any amendment or supplement thereto, incident to any offering
registered pursuant to this Declaration, 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 Netscape of any rule or
regulation promulgated under the Securities Act or state securities laws
applicable to Netscape in connection with any such registration, and subject to
Section 8(c), will reimburse each such Holder, and each person controlling such
Holder, for any legal and any other out-of-pocket expenses reasonably incurred
in connection with investigating, preparing or defending any such claim, loss,
damage, liability or action, provided that Netscape will not be liable in any
such case to the extent that any such claim, loss, damage, or liability 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 Netscape by such Holder or controlling person and
stated to be specifically for use therein.
(b) INDEMNIFICATION BY HOLDERS: Each Holder will indemnify Netscape,
each of its directors and officers, each underwriter, if any, of Netscape's
securities covered by such a registration statement and each person who controls
Netscape or such underwriter within the meaning of Section 15 of the Securities
Act, against all claims, losses, damages and liabilities (or actions in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any such registration statement,
final prospectus, or any amendment or supplement thereto, incident to any
offering registered pursuant to this Declaration 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 not misleading, and will reimburse
Netscape, such directors, officers, underwriters or control persons 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, final prospectus, or any amendment or
supplement thereto, in reliance upon and in conformity with written information
furnished to Netscape by such Holder and stated to be specifically for use
therein; provided, however, that the obligations of each Holder hereunder shall
be several and not joint and shall be limited to the net proceeds (after
expenses and commissions) from the sale of Registrable Securities by such Holder
as contemplated herein.
(c) DEFENDING CLAIMS: Each party entitled to indemnification under
this Section 8 (the "INDEMNIFIED PARTY") shall give notice to the party required
to provide indemnification (the "INDEMNIFYING PARTY") promptly after such
Indemnified Party receives written notice 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 be
unreasonably withheld), and the Indemnified Party may participate in such
defense at such party's expense, 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 Agreement, except to the
extent, but only to the extent, that the Indemnifying Party's ability to defend
against such claim or litigation is impaired as a result of such failure to give
notice. Notwithstanding the foregoing sentence, the Indemnified Party may
retain its own counsel to conduct the defense of any such claim or
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<PAGE>
litigation, and shall be entitled to be reimbursed by the Indemnifying Party for
expenses incurred by the Indemnified Party in defense of such claim or
litigation, in the event that the Indemnifying Party does not assume the defense
of such claim or litigation within sixty days after the Indemnifying Party
receives notice thereof from the Indemnified Party. Further, an Indemnifying
Party shall be liable for amounts paid in settlement of any such claim or
litigation only if the Indemnifying Party consents in writing to such settlement
(which consent shall not be unreasonably withheld). 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 a release from all liability
with respect to such claim or litigation.
(d) CONTRIBUTION: If the indemnification provided for in this
Section 8 from the Indemnifying Party is unavailable to an Indemnified Party
hereunder in respect of any claim, loss, damage or liability referred to herein,
then the Indemnifying Party, to the extent such indemnification is unavailable,
in lieu of indemnifying such Indemnified Party, shall contribute to the amount
paid or payable by such Indemnified Party as a result of such claims, losses,
damages or liabilities in such proportion as is appropriate to reflect the
relative benefit to or fault of the Indemnifying Party and Indemnified Parties
in connection with the actions that resulted in such claims, losses, damages and
liabilities. The relative benefit to such Indemnifying Party and Indemnified
Parties shall be determined by reference to, among other things, the gross
proceeds received by each such party from the sale of Registrable Securities in
the manner contemplated hereby and the benefit received by Netscape in
consideration for the issuance of the Registrable Securities pursuant to the
Purchase Agreement. The relative fault of such Indemnifying Party and
Indemnified Parties shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such Indemnifying Party or
Indemnified Parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the claims, losses, damages or liabilities
referred to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or
proceeding. The parties hereto agree that it would not be just and equitable if
contribution pursuant to this paragraph were determined by PRO RATA allocation
or by any other method of allocation that does not take account of the equitable
considerations referred to above in this paragraph. No party guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any party.
Notwithstanding the provisions of this Section 8(d), no Holder shall be required
to contribute any amount in excess of the amount of net proceeds received by
such Holder from the sale of Registrable Securities giving rise to such claims,
losses, damages or liabilities.
(e) The obligations of Netscape and each Holder under this Section 8
shall survive the completion of any offering of stock pursuant to a registration
statement under this Declaration.
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9. REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. Netscape agrees to:
(a) use all commercially reasonable efforts to file with the SEC in a
timely manner all reports and other documents required of Netscape under the
Securities Act and the Exchange Act; and
(b) furnish to each Holder forthwith upon request (i) a written
statement by Netscape that it has complied with the reporting requirements of
the Securities Act and the Exchange Act, or that it qualifies as a registrant
whose securities may be resold pursuant to Form S-3 (at any time that it so
qualifies), (ii) a copy of the most recent annual or quarterly report of
Netscape and (iii) such other information as may be reasonably requested in
availing each Holder of any rule or regulation of the SEC which permits the
selling of any such securities pursuant to Form S-3.
10. ASSIGNMENT OF REGISTRATION RIGHTS. The rights of a Holder pursuant to
this Declaration may be assigned by a Holder to a transferee of Registrable
Securities only if: (a) Netscape is, within a reasonable time after such
transfer, furnished with written notice of the name and address of such
transferee and a copy of a duly executed written instrument in form reasonably
satisfactory to Netscape pursuant to which such transferee assumes all of the
obligations and liabilities of its transferor hereunder, agrees itself to be
bound hereby and provides Netscape with such reasonable information as Netscape
may request to permit the transferee to sell such Registrable Securities
pursuant to the registration statement filed in accordance with Section 2
hereof, and (b) immediately following such transfer, the disposition of such
Registrable Securities by the transferee is restricted under the Securities Act.
11. AMENDMENT OF REGISTRATION RIGHTS. The Holders of a majority of the
Registrable Securities then outstanding may, with the consent of Netscape, amend
the registration rights granted hereunder.
12. TERMINATION. The registration rights set forth in this Declaration
shall terminate with respect to a Holder (and the shares held by such Holder
shall cease to constitute Registrable Securities) upon the earlier of (i) such
time as all of the Registrable Securities then held by such Holder can be sold
by such Holder in a three-month period in accordance with Rule 144 under the
Securities Act and (ii) one year following the Closing Date of the Acquisition.
13. OBLIGATIONS OF HOLDERS. By exercising any rights hereunder, each
Holder shall be deemed to assume all obligations of a Holder hereunder as though
such Holder were a signatory hereto. Netscape may require Holders to execute an
instrument whereby such Holders expressly assume all obligations of Holders
hereunder as a condition precedent to any obligations of Netscape hereunder.
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ANNEX A
STOCKHOLDER NOTICE
IN ORDER THAT THE PROPOSED SALE OF THE SUBJECT SHARES MAY BE EFFECTED
PLEASE PROMPTLY FAX OR MAIL THIS NOTICE TO:
NETSCAPE COMMUNICATIONS CORPORATION
501 EAST MIDDLEFIELD ROAD
MOUNTAIN VIEW, CA 94043
ATTENTION: MONICA VOLTA, STOCK ADMINISTRATOR
FAX: (650) 428-4363
PH: (650) 937-5890
RE: NETSCAPE
Pursuant to Section 5(a) of the Declaration of Registration Rights attached as
EXHIBIT C to that certain Purchase Agreement dated November 6, 1997 between
Netscape Communications Corporation, a Delaware corporation ("NETSCAPE"), and GE
Information Services, Inc., a Delaware corporation ("GEIS"), please be advised
that it is the intention of ____________________________________________ (name
of Selling Stockholder) to sell __________ shares of the Common Stock (the
"SHARES") of Netscape on ___________ (date of intended sale).
Please provide Netscape's written confirmation that the registration statement
on Form S-3 (Registration No. 333-_______), as amended (if amended), and the
related final Prospectus, as amended or supplemented (if amended or
supplemented), on file with the Securities and Exchange Commission as of the
date hereof is current and that the sale discussed in the above paragraph can be
made within ten (10) business days of the intended sale date by countersigning
below. Return Netscape's written confirmation to the undersigned at the
following address: _________________________________________ or fax it to the
undersigned at _____________________________.
Date: STOCKHOLDER:
-------------------
--------------------------------------
(Name of Stockholder)
--------------------------------------
(Authorized Signatory)
--------------------------------------
(Title, if applicable)
Acknowledged and confirmed by Netscape this day of 199 .
------ ------------ ---
By:
-----------------------------
Name:
Title:
