VOTING TRUST AGREEMENT
This Voting Trust Agreement (the "Agreement") is entered into as of
November 25, 1996 (the "Effective Date"), by and among Excite, Inc., a
California corporation (the "Company"), America Online, Inc., a Delaware
corporation (the "Shareholder"), AOL Ventures, Inc., a Delaware corporation and
wholly owned subsidiary of the Shareholder ("AOL Ventures"), and Xxxxxxx Xxxxxxx
(the "Voting Trustee"). References herein to the Shareholder shall be deemed to
include AOL Ventures.
In consideration of the mutual promises contained herein, the
Company,the Shareholder and the Voting Trustee agree as follows:
1. Purpose of Voting Trust; Effectiveness. The purpose of this Voting
Trust is to ensure that, during the term of this Agreement, votes, actions and
consents to be taken with respect to all voting shares of the Preferred Stock of
the Company held by the Shareholder and to be deposited into the trust created
hereby (the "Preferred Stock") shall be taken by the Voting Trustee on behalf of
the Shareholder in each instance and only in each such instance where the
General Corporation Law of the State of California (the "GCL") would require
that the outstanding shares of Preferred Stock be entitled to a separate class
vote (a "Class Voting Event") and, in any such instance, solely with respect to
such class vote. It is intended that upon a Class Voting Event, the Preferred
Stock shall be voted consistently with the majority of the Company's Common
Stock. Nothing herein shall preclude Shareholder from voting the Preferred Stock
on a Common Stock equivalent basis in accordance with the Company's Articles of
Incorporation with regard to any matter placed before the holders of Common
Stock of the Company, including any matter for which a class vote of the
Preferred Stock is required under the GCL. This Agreement shall be effective as
of the closing of the transactions contemplated by that certain Acquisition
Agreement of even date herewith by and between the Company, Shareholder and
Global Network Navigator, Inc. (the "Acquisition Agreement").
2. Agreement.
2.1 Available for Inspection. Conformed copies of this Agreement and
of each amendment hereto shall be kept on file with the Secretary of the Company
and shall be available for inspection by any holder of a "Voting Trust
Certificate" or any shareholder of the Company at the Company's principal office
during business hours. The Shareholder and the Voting Trustee shall be furnished
with a conformed copy of this Agreement.
2.2 Rights of Shareholder. The Shareholder shall have rights in the
Voting Trust Certificate(s) and in the shares of Preferred Stock deposited in
trust by such Shareholder subject to the terms and provisions of this Agreement.
Any heir, assignee or transferee or person entitled to an interest in the rights
of the Shareholder to the Voting Trust Certificate or the shares of Preferred
Stock deposited by such Shareholder in trust hereunder shall be subject to and
bound by the provisions of this Agreement. Except as otherwise provided herein,
the Shareholder will have all of the rights of a shareholder of the Company with
respect to the shares of Preferred Stock deposited into trust.
3. Transfer of Preferred Stock to Voting Trustee.
3.1 Stock Certificates. Upon the Closing, as such term is defined in
Section 1.4 of the Acquisition Agreement, the Company shall deliver to the
Voting Trustee certificates for the shares of Preferred Stock that are issued at
such time to the Shareholder pursuant to the Acquisition Agreement and referred
to therein as Transaction Shares, and if Shareholder exercises its right under
the Acquisition Agreement to exchange the shares of Company Common Stock held by
it for shares of Excite Preferred Stock at the Closing or thereafter, the
Company shall deliver to the Voting Trustee certificates for all shares of
Preferred Stock issuable to the Shareholder as the result of such exchange.
During the term of this Agreement, the Company or the Shareholder, as
applicable, will deliver to the Voting Trustee certificates for all shares of
Preferred Stock that are issued to Shareholder during such term, including, but
not limited to, all shares issued upon exercise of warrants held by Shareholder.
All such Stock certificates shall be endorsed in blank. The Company shall bear
all expenses of such transfers. Upon surrender of such endorsed stock
certificates transferred by the Shareholder or the Company, the Company shall
issue to the Voting Trustee one or more stock certificates representing the
shares of Preferred Stock deposited in trust hereunder and registered in the
name of the Voting Trustee as a trustee under this Voting Trust Agreement.
Unless otherwise specified by the Voting Trustee the stock certificates issued
in the name of the Voting Trustees shall be held by the Secretary of the
Company.
3.2 Delivery of Voting Trust Certificate. In exchange for the
certificates of shares of Preferred Stock delivered from time to time by the
Shareholder or the Company, the Voting Trustees shall issue and deliver to the
Shareholder Voting Trust Certificates representing the shares of Preferred Stock
deposited by such Shareholder. The Secretary of the Company may, on behalf of
the Voting Trustee, execute any and all Voting Trust Certificates issued
hereunder.
4. Acceptance of Trust. The Voting Trustee hereby accepts the trust
created hereby in accordance with all of the terms and conditions contained in
this Agreement.
5. Voting Trust Certificates. The Voting Trust Certificates to be
issued and delivered by the Voting Trustee under this Agreement in respect of
any shares of Preferred Stock shall be legended as required by the terms of the
agreement between the Company and such Shareholder pursuant to which such
Shareholder acquired its Preferred Stock, together with substantially the
following legend:
SALE, PLEDGE OR OTHER DISPOSITION OR TRANSFER OF THIS VOTING
TRUST CERTIFICATE AND THE SHARES OF STOCK OF EXCITE, INC.
REPRESENTED HEREBY IS RESTRICTED BY THE TERMS OF A VOTING
TRUST AGREEMENT WHICH MAY BE EXAMINED AT THE OFFICES OF THE
COMPANY IN MOUNTAIN VIEW, CALIFORNIA.
6. Transfer of Certificates.
6.1 Transfer Procedures. The Voting Trust Certificates shall be
transferable only on the books of the Company upon surrender of such Voting
Trust Certificates (duly endorsed in blank or accompanied by a proper instrument
of assignment duly executed in blank, together with all requisite tax stamps
attached thereto and an amount sufficient to pay all federal, state and local
taxes or other governmental charges, if any, then payable in connection with
such transfer) by the registered holder in person or by such holder's duly
authorized attorney to the Company. Upon the surrender of any Voting Trust
Certificate for transfer (provided such transfer does not violate the
restrictions on transfer contained herein, in any other agreement to which the
Shareholders may be bound, or imposed by law), the Company shall cancel such
Voting Trust Certificate and issue to the transferee one or more new Voting
Trust Certificates in the same form and representing the same number of shares
of Preferred Stock as the Voting Trust Certificates presented for cancellation.
6.2 Registered Owner. The Voting Trustee may treat the registered
holder of each of such Voting Trust Certificates as the absolute owner thereof
for all purposes whatsoever, and accordingly shall not be required to recognize
any legal, equitable or other claim or interest in such Voting Trust Certificate
on the part of any other person, whether or not it or they shall have express or
other notice thereof.
6.3 Lost, Stolen Certificates. If a Voting Trust Certificate is
lost, stolen, mutilated, or destroyed, the Voting Trustee, in his discretion,
may cause to be issued a duplicate of such certificate upon receipt of: (a)
evidence of such fact satisfactory to them; (b) indemnity satisfactory to them;
(c) the existing certificate, if mutilated; and (d) the reasonable fees and
expenses incurred in connection with the issuance of a new Voting Trust
Certificate.
6.4 Securities Laws. The Voting Trust Certificates may not be
offered, sold, transferred or hypothecated in the absence of registration or the
availability of an exemption from registration under the Securities Act of 1933,
as amended (the "Act") and any applicable state law regulating securities. Every
holder of Voting Trust Certificates agrees not to sell, transfer, pledge or
hypothecate the Voting Trust Certificates unless the Voting Trustee shall be
reasonably satisfied that such sale or other disposition does not violate the
provisions of any agreement of which the Shareholder is a party and unless
either: (i) the transfer of the Voting Trust Certificates is registered under
the Act pursuant to a current and effective registration statement at the time
of such sale, transfer, pledge or hypothecation and is registered or qualified
under any applicable state law regulating securities; or (ii) the Voting Trustee
has been furnished an opinion of counsel satisfactory in form and substance to
the Voting Trustee that the Voting Trust Certificates may be so transferred or
disposed of without such registration or qualification. Every holder of Voting
Trust Certificates agrees that the Voting Trustee may refuse to transfer any
Voting Trust Certificate except as aforesaid.
7. Dividends.
7.1 Paid to Voting Trustees. The Voting Trustee shall receive and
distribute to the registered holders of Voting Trust Certificates any dividends
or distributions paid in cash or property other than voting securities of the
Company in respect of the Preferred Stock received by the Voting Trustee to
holders of voting Trust Certificates in proportion to their respective interests
in the underlying Preferred Stock deposited hereunder. The Voting Trustee also
shall receive and hold, subject to the terms of this Agreement, any voting
preferred stock of the Company issued by reason of any capital reorganization,
stock split, stock dividend, combination or the like and shall issue and deliver
Voting Trust Certificates therefor to the holders of the Voting Trust
Certificates in proportion to their respective interests as shown on the books
of the Voting Trustee.
7.2 Paid to Shareholder. In lieu of receiving cash dividends upon
the Preferred Stock and paying the same to the holders of Voting Trust
Certificates pursuant to the provisions of this Agreement, the Voting Trustee
may instruct the Company in writing to pay such dividends to the holders of the
Voting Trust Certificates. Upon receipt of such written instructions, the
Company shall pay such dividends directly to the holders of the Voting Trust
Certificates. The Voting Trustee may at any time revoke such instructions and by
written notice to the Company direct it to make dividend payments to the Voting
Trustee. Upon such instructions being given by the Voting Trustee to the
Company, and until revoked by it, all liability of the Voting Trustee with
respect to such dividends shall cease.
8. Dissolution of the Company. In the event that upon dissolution or
total or partial liquidation of the Company, whether voluntary or involuntary,
the Voting Trustee shall receive the moneys, securities, rights or property to
which the holders of the Preferred Stock deposited hereunder are entitled, then
the Voting Trustee shall distribute the same among the registered holders of
Voting Trust Certificates in accordance with the terms of the Company's Articles
of Incorporation in proportion to the registered holders' respective interests
as shown by the books of the Voting Trustee, or the Voting Trustee may in his
discretion deposit such moneys, securities, rights or property with any bank or
trust company with authority and instructions to distribute the same as above
provided, and upon such deposit all further obligations or liabilities of the
Voting Trustee in respect of such moneys, securities, rights or property so
deposited shall cease.
9. Successor Voting Trustees. The Voting Trustee may at any time resign
by delivering to the Company his resignation in writing, to be effective in
accordance with its terms, including without limitation any specification of a
successor. Except as otherwise provided herein, if the Voting Trustee shall
resign or be removed and a successor is not automatically appointed pursuant to
the preceding sentence, then a successor will be appointed by the Company.
Except as otherwise provided herein, the successor Voting Trustee may be removed
at any time upon the request of the Shareholder.
10. Rights and Powers of Voting Trustee. Until the termination of this
Agreement as provided herein, at each Class Voting Event, including without
limitation, any vote involving a change in control of the Company, and whether
occurring at a duly called and held meeting of Company shareholders or with
respect to any written consent of shareholders of the Company, the Voting
Trustee shall vote, in person or by proxy, the shares deposited hereunder in a
manner that is consistent with the vote of the holders of a majority of the
Company's voting Common Stock (which Common Stock shall be deemed to include the
shares of Company Common Stock issuable upon conversion of the shares of
Preferred Stock deposited hereunder). The Voting Trustee shall have no authority
to sell, pledge, hypothecate, or otherwise
dispose of any of the shares deposited pursuant to this Agreement, provided
however, that if the holders of a majority of the Company's voting Common Stock
and preferred stock that is not held by the Voting Trustee on behalf of the
Shareholder tender their shares pursuant to a tender offer under Section 14(d)
of the Securities Exchange Act of 1934, as amended, the Voting Trustee shall
tender the shares deposited hereunder, receive the proceeds in consideration
thereof and distribute such proceeds to the Shareholder.
11. Liability of Voting Trustee. In voting, or otherwise acting
hereunder with respect to shares deposited hereunder, the Voting Trustee shall
be entitled to exercise his own absolute discretion and judgment subject to the
conditions imposed by Section 10 hereof; but he assumes no responsibility in
respect to any action taken by him or his agents, and neither the Voting Trustee
nor any of his agents shall incur any responsibility or liability by reason of
any error of law or anything done or suffered or omitted, except for individual
malfeasance. Neither the Voting Trustee nor any of his agents shall be required
to give any bond or other security for the discharge of duties.
12. Expenses of Voting Trustee. The Voting Trustee may employ counsel,
and provide for such other assistance as may be convenient, in the performance
of his functions. The Company shall indemnify the Voting Trustee against all
expenses, claims and liabilities incurred by him in connection with or arising
out of this Agreement for the discharge of his duties hereunder to the
fullextent permitted by law. The Company shall, at the request of the Voting
Trustee, advance funds to pay expenses incurred for legal or other assistance
provided to the Voting Trustees or for legal fees or other expenses incurred by
the Voting Trustee in the defense of any action, claim or proceeding arising as
aforesaid.
13. Surrender of Shares for Cancellation. The Voting Trustee may at any
time in his discretion, and to such extent as he may deem advisable, deliver in
exchange for Voting Trust Certificates, certificates for shares of the Company
in an amount equal to the shares represented by such Voting Trust Certificates
in order to enable the surrender to the Company for cancellation of the shares
so delivered, or otherwise as the Voting Trustee may in his absolute discretion
deem advisable, and the delivery of any such shares of the Company to any one or
more holders of Voting Trust Certificates shall not entitle such holder or
holders or any other holder or holders of Voting Trust Certificates to demand
delivery of all or any part of the shares of the Company remaining deposited
hereunder.
14. Conversion of Shares Into Common Stock. If the Shareholder or any
subsequent holder of Voting Trust Certificates wishes to convert the shares of
Preferred Stock in which it has a beneficial interest into shares of the
Company's Common Stock (a "Converting Holder"), the following procedure shall be
followed: (i) the Converting Holder shall deliver Voting Trust Certificate(s) to
the Company (covering the beneficial interest in all shares to be converted)
together with instructions as to how many shares of Preferred Stock are to be
converted into Common Stock; (ii) the shares requested to be converted shall be
deemed converted immediately upon receipt of such instructions and Voting Trust
Certificate(s) by the Company; (iii) the Company, shall immediately instruct its
transfer agent to issue shares of Common Stock to the Converting Holder or its
successors or assigns in accordance with the instructions of Converting Holder
(and pursuant to the terms of the Company's Amended and Restated Articles of
Incorporation); and (iv) the Company shall inform the Voting Trustee of the
conversion and the Voting Trustee shall promptly issue to the Converting Holder
new Voting Trust Certificates representing the interest in any shares not
converted by the Converting Holder. Any shares of Common Stock issued upon
conversion shall no longer be subject to this Agreement. Except as otherwise
provided by this Agreement, a Converting Holder shall have no right to the
delivery of any shares of Preferred Stock not converted under this Section14.
15. Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed to have been duly given on the
date of service if served personally or on the date of mailing if mailed by
first class mail, registered or certified, postage prepaid and addressed as
follows: if to registered holders of Voting Trust Certificates, at the address
for each such holder set forth on his Voting Trust Certificate; if to the Voting
Trustee at the address specified below its signature on this Agreement; if to
the Company, at Excite, Inc., 0000 X. Xxxxxxxxx Xxxx., Xxxxx 000, Xxxxxxxx Xxxx,
XX 00000; or such different address as may be specified to the other parties by
notice given as provided herein.
16. Term. This Agreement shall continue in effect until and shall
terminate upon the earlier to occur of (i) the date on which no shares of
Preferred Stock are held by Shareholder, or (ii) the effective date of a merger
or consolidation of the Company or an exchange or other reorganization where the
Company is not the surviving or parent corporation; or (iii) the voluntary or
involuntary dissolution of the Company, or (iv) the death, resignation or
incapacity to act of the Voting Trustee if no other trustee is appointed
pursuant hereto to fill the vacancy within 90 days after such death, resignation
or incapacity; or (v) ten years from the Effective Date. Renewal of the Voting
Trust may be effected pursuant to the provisions of the GCL.
17. Conversion of Shares. Upon termination, the holder of the Voting
Trust Certificate may present such Voting Trust Certificate to the Voting
Trustee and, upon such presentation, the Voting Trustee shall deliver to such
holder a certificate or certificates, expressed to be fully paid and
nonassessable, for shares of Preferred Stock, as provided in the Voting Trust
Certificate.
18. Execution of this Agreement. This Agreement may be executed in
several counterparts, each of which shall be an original.
19. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the executors, administrators, heirs, successors and assigns of
the parties.
20. Governing Law. This Agreement shall be governed by and construed in
accordance with the corporation law of the State of California, excluding that
body of law known as conflicts of law.
22. Successors and Assigns. Except as expressly set forth to the
contrary in this Agreement, this Agreement shall be binding upon and inure to
the benefit of the successors, assigns, heirs, administrators, executors and
legal representatives of the parties hereto; provided, however, that the
transfer of any interest in this Agreement shall be subject to the transferee's
consent to be bound by all provisions of this Agreement.
23. Captions. The captions to Sections of this Agreement have been
inserted for identification and reference purposes and shall not by themselves
determine the construction or interpretation of this Agreement.
24. Amendment. Except as otherwise provided, any term of this Voting
Trust may be amended and the observance of any term of this Voting Trust may be
waived (either generally or in a particular instance and either retroactively or
prospectively), only with the consent of the Company, the Voting Trustee and the
Shareholder.
IN WITNESS WHEREOF, the Company, the Voting Trustee, AOL Ventures and
the Shareholder have executed this Voting Trust Agreement as of the date first
written above.
AMERICA ONLINE, INC.: EXCITE, INC.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxx Xxxx
-------------------------- -----------------------------
Name: Name:
------------------------ -----------------------------
Title: Title:
------------------------------ -----------------------------
AOL VENTURES, INC.:
By: /s/ Miles Gilburne
---------------------------------
Name:
-------------------------------
Title:
------------------------------
THE VOTING TRUSTEE:
/s/ Xxxxxxx Xxxxxxx
- ----------------------------------
Xxxxxxx Xxxxxxx
c/o Excite, Inc.
0000 X. Xxxxxxxxx Xxxx., Xxx. 000
Xxxxxxxx Xxxx, XX 00000
