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EXHIBIT 10.25
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT (this "AGREEMENT") is made as of November
25, 1996 (the "EFFECTIVE DATE"), by and among AMERICA ONLINE, INC., a Delaware
corporation with its principal offices at 00000 XXX Xxx, Xxxxxx, Xxxxxxxx 00000
("AOL"), GLOBAL NETWORK NAVIGATOR, INC., a Delaware corporation and wholly owned
subsidiary of AOL with its principal offices at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxx,
XX 00000 ("GNN"), and EXCITE, INC., a California corporation with its principal
offices at 0000 X. Xxxxxxxxx Xxxxxxxxx, Xxx. 000, Xxxxxxxx Xxxx, XX 00000
("EXCITE"). AOL and GNN are collectively referred to herein as AOL.
R E C I T A L S
A. AOL operates a business known as "WEBCRAWLER" (sometimes referenced
herein as "WC") that engages in the business of providing search and directory
services under the service xxxx "WebCrawler" on the World Wide Web and on the
AOL Network (as defined in the Commercial Agreement described below), and
selling advertising contracts with respect to "impressions" or "avails"
generated by such services (the "WC BUSINESS").
B. AOL desires to sell to Excite, and Excite desires to purchase from
AOL, substantially all of the assets of the WC Business in exchange for: (i) One
Million Two Hundred Fifty Thousand (1,250,000) shares of the Series E-1
Preferred Stock of Excite (the "ACQUISITION SHARES"); and (ii) the assumption by
Excite of certain enumerated liabilities of the WC Business, in each case all on
the terms and conditions set forth in this Agreement. In addition, in
consideration for services to be rendered by AOL to Excite pursuant to the
Operating Agreement (as defined below) in connection with the transfer of the WC
Business to Excite, Excite will issue to AOL Seven Hundred Thousand (700,000)
shares of the Series E-2 Preferred Stock of Excite (the "SERVICES SHARES"). The
Acquisition Shares and Services Shares are collectively referred to herein as
the "TRANSACTION SHARES."
C. AOL, in its own name or in the name of AOL Ventures, Inc. ("AOL
VENTURES"), currently holds 680,330 shares of Excite Common Stock (the "EXISTING
EXCITE SHARES") and a warrant to purchase an additional 650,000 shares of Excite
Common Stock (the "EXISTING AOL WARRANT"). As part of the transactions
contemplated by this Agreement and the Commercial Agreement, the Existing AOL
Warrant will be amended to become exercisable for shares of Excite Series E-3
Preferred Stock (the "WARRANT SHARES") and the expiration date with respect to
exercisability of the Existing AOL Warrant will be subject to the provisions of
the Commercial Agreement. Excite shall also grant AOL the right to exchange the
Existing Excite Shares for a similar number of common-equivalent shares of
Excite Series E-4 Preferred Stock. The shares of each series of Excite Series E
Preferred Stock (collectively, the "EXCITE PREFERRED SHARES") will have the
rights, preferences and privileges described in the form of the Certificate of
Determination attached hereto as Exhibit A (the "CERTIFICATE OF DETERMINATION").
The Excite Preferred Shares may not be sold or otherwise transferred by AOL or
any affiliate thereof, although such shares may be converted into shares of
Excite Common Stock pursuant to the
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Certificate of Determination, whereupon the shares will only be subject to any
applicable transfer restrictions under state and federal securities laws.
D. The Transaction Shares shall be issued to AOL either (i) in a
private placement pursuant to the exemption provided by Section 4(2) of the
Securities Act of 1933, as amended (the "1933 ACT") or (ii) pursuant to the
exemption from registration provided by Section 3(a)(10) of the 1933 Act under
which the parties will request the Department of Corporations of the State of
California (the "DEPARTMENT OF CORPORATIONS") to conduct a hearing for the
purpose of determining whether the proposed issuance of the Transaction Shares
in connection with the transactions contemplated herein is fair, just and
equitable (the "FAIRNESS HEARING") and upon such a finding, to grant a permit
qualifying such issuance (the "CALIFORNIA PERMIT").
E. The shares of Excite Common Stock issuable upon conversion of the
Excite Preferred Shares (the "CONVERSION SHARES") that are not qualified under
the California Permit shall have all the registration rights set forth in the
Registration Rights Agreement in the form attached hereto as Exhibit B (the
"REGISTRATION RIGHTS AGREEMENT"), and regardless of whether the Conversion
Shares are qualified under the California Permit, such shares shall have the
Form S-3 demand and piggyback registration rights set forth in the Registration
Rights Agreement.
F. The Excite Preferred Shares held by AOL shall be subject to the
voting requirements set forth in that certain Voting Trust Agreement in the form
attached hereto as Exhibit C (the "VOTING TRUST AGREEMENT"), the sole intent of
which will be to remove any class voting rights that would otherwise accrue to
the Excite Preferred Shares.
G. The parties understand that the closing of the transactions
contemplated by this Agreement is subject to a number of conditions. Pending the
closing of the transactions contemplated under this Agreement, the parties will
enter into an Operating Agreement in the form attached hereto as Exhibit D (the
"OPERATING AGREEMENT"), which will be binding upon the parties hereto from the
date hereof until the Closing (as defined in Section 1.4) or earlier termination
of this Agreement.
H. In connection with this Agreement, the parties are concurrently
entering into a Technology License, Distribution, Services and Co-Marketing
Agreement in the form attached hereto as Exhibit E (the "COMMERCIAL AGREEMENT").
The Commercial Agreement, Operating Agreement, Registration Rights Agreement and
Voting Trust Agreement are referred to herein as the "ANCILLARY AGREEMENTS."
NOW, THEREFORE, in consideration of the above recitals and the mutual
covenants hereinafter set forth, Excite and AOL hereby agree as follows:
1. PURCHASE AND SALE OF ASSETS.
1.1 CERTAIN DEFINITIONS. As used in this Agreement:
(a) WC Assets. The "WC ASSETS" means those tangible and
intangible assets, properties and rights that, as of the Closing Date (as
defined in Section 1.4), are owned or controlled by AOL or an entity controlled
by AOL, are used by AOL or an entity controlled by
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AOL in the operation and conduct of the WC Business as it is currently conducted
and as it is proposed to be conducted following the date hereof and which are
set forth on Schedules 1.2(a) through (e) of the WC Assets Letter. As used in
this Agreement, the phrase "as it is proposed to be conducted following the date
hereof" shall mean the conduct of the WC Business as if it were to be continued
in substantially the same manner in which it is currently being run by AOL,
except that the party owning the WC Business will be Excite and that the volume
of transactions processed by the WC Business will be consistent with projections
provided by AOL, provided however, that the parties recognize that additional
system capacity may be required to accommodate such projections, and provided
further, that the parties recognize that (i) no warranty is being made as to
whether the anticipated volume of transactions will be met, (ii) there is no
guarantee that the advertising revenues will not suffer if employees directly
involved with the WC Business do not continue their employment after the
Effective Date, and (iii) the acquisition of additional system capacity is
beyond the control of AOL.
(b) Intellectual Property. "INTELLECTUAL PROPERTY" means and
includes patents, patent applications and the right to file for patent
applications (including but not limited to continuations, continuations-in-part,
divisionals and reissues), trademarks, logos, service marks, trade names and
service names (in each case whether or not registered) and applications for and
the right to file applications for registration thereof, copyrights (whether or
not registered) and applications for and the right to file applications for
registration thereof, moral rights, mask works and mask work registrations and
applications for the right to file applications for registration thereof, trade
secrets, trade dress, publicity and privacy rights, and any other intellectual
property rights arising under the laws of the United States of America, any
State thereof, or any country or province.
1.2 AGREEMENT TO SELL AND PURCHASE WC ASSETS. Subject to the terms and
conditions of this Agreement, and in reliance on the representations, warranties
and covenants set forth in this Agreement, AOL agrees to sell, assign, transfer
and convey to Excite at the Closing (as defined in Section 1.4), and Excite
agrees to purchase and acquire from AOL at the Closing, all of AOL's right,
title and interest in and to all of the WC Assets. The WC Assets will be sold,
assigned, transferred and conveyed to Excite on the Closing Date, free and clear
of all mortgages, pledges, liens, licenses, rights of possession, security
interests, restrictions, encumbrances, charges, title retention, conditional
sale or other security arrangements and all claims or agreements of any nature
whatsoever, except as otherwise expressly disclosed on the AOL Exceptions Letter
(as defined below). The WC Assets to be purchased by Excite under this Agreement
shall consist of the following assets and properties owned or controlled by AOL
on the date hereof or on the Closing Date:
(a) Contracts. All right, title and interest of AOL in the
contracts, agreements, engagements, leases, advertising sales contracts and
licenses, written or oral, relating to the WC Business that are listed on
Schedule 1.2(a) of the WC Assets Letter (each a "WC CONTRACT" and collectively,
the "WC CONTRACTS"); provided, however, that this Agreement will not effect the
sale, assignment or transfer to Excite of any WC Contracts that by their terms
cannot be so sold, assigned or transferred to Excite without the consent of a
third party unless and until such consent has been obtained; provided further,
that, as to any such WC Contracts, AOL will take such actions and grant such
rights as may be necessary such that Excite will have
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the full right and benefit under such WC Contracts notwithstanding such failure
to sell, assign or transfer to Excite;
(b) Intellectual Property. All right, title and interest of
AOL in the Intellectual Property that is listed on Schedule 1.2(b) to the WC
Assets Letter (the "WC INTELLECTUAL PROPERTY"), provided that the WC
Intellectual Property shall not include the electronic or other media upon which
such WC Intellectual Property is stored;
(c) Software. All right, title and interest of AOL in any
computer software (in source and object code form) and related documentation
that is listed on Schedule 1.2(c) to the WC Assets Letter (the "WC SOFTWARE"),
provided that the WC Software shall not include the electronic or other media
upon which such WC Software is stored;
(d) Web Sites. All right, title and interest of AOL in any
World Wide Web sites maintained in connection with the WC Business, including
all related URL addresses and related rights (including all agreements listed on
Schedule 1.2(a), if any, related to "hot links" or other pointers to such Web
sites), that is listed on Schedule 1.2(d) to the WC Assets Letter (the "WC WEB
SITES");
(e) Tangible WC Assets. The tangible assets and tangible
embodiments of intangible assets, including all additions or accessions thereto
that occur from the date hereof until Closing, that are listed on Schedule
1.2(e) to the WC Assets Letter (the "WC TANGIBLE ASSETS").
(f) Documents. Copies of all financial records, logs, books,
records, files, customer lists and histories, lists of advertisers, supplier
lists and files, product component lists, engineering and design drawings,
diagrams and other documentation depicting or specifying the designs and
components of all the WC Contracts, the WC Intellectual Property, the WC
Software, the WC Web Sites, the WC Accounts or the Tangible WC Assets, as well
as any and all sales and marketing materials for the WC Business, provided that
the documents described herein shall not be deemed to include any of the assets
described in Schedules 1.2(a)-(e);
(g) Media. The electronic or other media upon which the WC
Intellectual Property and WC Software that is not transmitted electronically is
stored.
(h) Goodwill. All the goodwill of the WC Business.
1.3 ASSET TRANSFER; PASSAGE OF TITLE; DELIVERY; POWER OF ATTORNEY.
(a) Title Passage. Except as otherwise provided in this
Section, upon the Closing, title to all of the WC Assets shall pass to Excite;
and AOL shall deliver to Excite possession of all of the WC Assets as provided
in subsection 1.3(b), and shall further deliver to Excite a fully executed
Assignment and Xxxx of Sale in the form attached hereto as Exhibit F (the "XXXX
OF SALE"), as well as any other assignments, conveyances and bills of sale
sufficient to convey to Excite good and marketable title to all the WC Assets,
free and clear of all mortgages, pledges, liens, licenses, rights of possession,
security interests, restrictions, encumbrances, charges, title retention,
conditional sale or other security arrangements and all claims or
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agreements of any nature whatsoever, except as otherwise expressly disclosed on
the AOL Exceptions Letter, as well as such other instruments of conveyance as
counsel for Excite may reasonably deem necessary or desirable (both at and after
the Closing) to effect or evidence the transfers contemplated hereby;
(b) Delivery of WC Assets. The WC Assets shall be delivered by AOL
to Excite on the Closing Date at Excite's facility in Mountain View, California
or at such other location as Excite shall designate. Delivery shall be
effectuated by electronic transmission to the greatest extent possible.
1.4 CLOSING. The consummation of the purchase and sale of the WC Assets
and the delivery of the consideration therefor will take place at a closing to
be held at the offices of Excite's counsel, Fenwick & West LLP, Two Palo Alto
Square, Palo Alto, California (the "CLOSING") on March 31, 1997 or the earliest
practicable and mutually agreeable date following the satisfaction or waiver of
the conditions to closing set forth in Section 8 hereof (the "CLOSING DATE"), or
at such other time or date, and at such place, or by such other means of
exchanging documents, as may be agreed to by the parties hereto.
1.5 EXCHANGE RIGHT. At or within ninety (90) days following the
Closing, AOL shall have the right to exchange all or a portion of the Existing
Excite Shares for a similar number of common-equivalent Excite Series E-4
Preferred Shares with the rights, preferences and privileges described in the
form of the Certificate of Determination attached hereto as Exhibit A. Such
exchange shall be effectuated by the surrender by AOL within the time period
referenced above of the stock certificate(s) representing the Existing Excite
Shares to Excite along with a notice requesting Excite to issue the appropriate
number of Excite Series E-4 Preferred Shares to AOL, whereupon Excite or
Excite's transfer agent shall cancel the certificate(s) representing the
Existing Excite Shares and issue the certificate(s) for the Excite Series E-4
Preferred Shares. The date of the certificate(s) for the Excite Series E-4
Preferred Shares shall be the date on which Excite or Excite's transfer agent
receives the certificates for the Existing Excite Shares that are being
surrendered.
2. PURCHASE PRICE; PAYMENTS.
2.1 PURCHASE PRICE. In consideration of the sale, transfer, conveyance
and assignment of all the WC Assets to Excite at the Closing and the other
consideration provided by AOL hereunder, as of the Closing:
(a) Acquisition Shares. Excite will issue and deliver a certificate
or certificate(s) representing One Million Two Hundred Fifty Thousand
(1,250,000) shares of Excite Series E-1 Preferred Stock, registered in the name
of AOL (or such wholly-owned subsidiary of AOL as AOL may direct). In addition,
Excite will issue 700,000 shares of Series E-2 Preferred Stock in consideration
of the services to be provided by AOL, as provided for in the Operating
Agreement, attached hereto as Exhibit D.
(b) Assumption of Liabilities. Excite will deliver to AOL an
Assumption Agreement in the form attached hereto as Exhibit G, under which
Excite agrees to assume all the
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Assumed Liabilities (as defined in Section 3.1) and no other liabilities of the
WC Business or of AOL.
2.2 REGISTRATION RIGHTS. AOL shall have certain registration rights
with respect to the shares of Excite Common Stock issuable upon conversion of
the Excite Preferred Shares, as more fully set forth in the Registration Rights
Agreement and Section 6.3 hereof.
2.3 SALES TAX. Any sales or use tax liability that arises with respect
to the transfer of the WC Assets from AOL to Excite will be borne equally by AOL
and Excite.
3. ASSUMPTION OF LIABILITIES AND OBLIGATIONS
3.1 ASSUMED LIABILITIES. The following liabilities of AOL related to
the WC Business expressly listed below in this Section 3.1 will be assumed by
Excite (collectively, the "ASSUMED LIABILITIES"):
(a) WC Contracts. The obligations of AOL arising from and after the
Closing under those (and only those) WC Contracts specifically listed in
Schedule 1.2(a) to the WC Assets Letter, provided however, that notwithstanding
the foregoing, Excite will not assume, and the Assumed Liabilities will not
include, any obligation of AOL under any such WC Contract that arises or is
related to a breach of such WC Contract by AOL, to the extent such breach occurs
prior to the Closing Date other than an obligation of AOL that results from a
breach of a WC Contract by AOL during the Transition Period (as defined in the
Operating Agreement) if the breach results from an action (or lack of action)
taken at the direction of Excite or is taken to avoid a breach of the Operating
Agreement; and
(b) Listed Liabilities. Any liabilities expressly listed on
Schedule 3.1 to the WC Assets Letter, to the extent clearly and unambiguously
described therein.
3.2 LIABILITIES AND OBLIGATIONS NOT ASSUMED. Except as expressly set
forth in Section 3.1 above, Excite shall not assume or become obligated in any
way to pay any liabilities, debts or obligations of AOL or of the WC Business
whatsoever, including but not limited to any liabilities or obligations now or
hereafter arising from or with respect to, any current or future outstanding
options to purchase AOL Common Stock, the sale or license of any products or
services of AOL that occurred prior to the Closing, the termination by AOL of
the employment of any current or future employees of AOL or any of its
affiliates, any other claims brought against AOL arising from AOL's employment
of any person, any duties or obligations under any existing or future employee
benefit plans of AOL or any of its affiliates, any present or future obligations
or liabilities of AOL or any of its affiliates to existing or future employees
of AOL or any of its affiliates under the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended ("COBRA"), the Federal Worker Adjustment
and Retraining Act ("WARN") or any severance pay obligations of AOL or any of
its affiliates or any obligations or liabilities or arising from any breach or
default by AOL of any contract, agreement or commitment of AOL (including but
not limited to the Contracts that occurred (or arose from facts occurring) prior
to the Closing). All liabilities, debts and obligations of AOL not expressly
assumed by Excite hereunder are hereinafter referred to as the "EXCLUDED
LIABILITIES".
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3.3 NO OBLIGATIONS TO THIRD PARTIES. The execution and delivery of this
Agreement shall not be deemed to confer any rights upon any person or entity
other than the parties hereto, or make any person or entity a third party
beneficiary of this Agreement, or to obligate the parties to any person or
entity other than the parties to this Agreement. Assumption by Excite of any
liabilities or obligations of AOL under Section 3.1 shall in no way expand the
rights or remedies of third parties against Excite as compared to the rights and
remedies such parties would have against AOL if the Closing were not
consummated.
4. REPRESENTATIONS AND WARRANTIES OF EXCITE.
Excite hereby represents and warrants to AOL that except as set forth
on the Excite Disclosure Letter delivered concurrently herewith, all the
following statements are true, accurate and correct:
4.1 ORGANIZATION AND GOOD STANDING. Excite is a corporation duly
organized, validly existing and in good standing under the laws of the State of
California, and has the corporate power and authority to own, operate and lease
its properties and to carry on its business as now conducted and as proposed to
be conducted, and is qualified as a foreign corporation in each jurisdiction in
which a failure to be so qualified could reasonably be expected to have a
material adverse effect on its present operations or financial condition.
4.2 POWER, AUTHORIZATION AND VALIDITY.
4.2.1 Excite has the right, power, legal capacity and authority to
enter into and perform its obligations under this Agreement, and all agreements
to which Excite is or will be a party that are required to be executed pursuant
to this Agreement (the "EXCITE ANCILLARY AGREEMENTS"). The execution, delivery
and performance of this Agreement and the Excite Ancillary Agreements have been
duly and validly approved and authorized by Excite's Board of Directors.
4.2.2 No filing, authorization or approval, governmental or
otherwise, is necessary to enable Excite to enter into, and to perform its
obligations under this Agreement and the Excite Ancillary Agreements, except for
(a) filings required under federal antitrust laws; and (b) such filings as may
be required to comply with federal and state securities laws.
4.2.3 This Agreement and the Excite Ancillary Agreements are, or
when executed by Excite will be, valid and binding obligations of Excite
enforceable in accordance with their respective terms, except as to the effect,
if any, of (a) applicable bankruptcy and other similar laws affecting the rights
of creditors generally, (b) rules of law governing specific performance,
injunctive relief and other equitable remedies and (c) the enforceability of
provisions requiring indemnification in connection with the offering, issuance
or sale of securities;
4.2.4 Due Authorization. The Excite Preferred Shares, when issued
and delivered by Excite pursuant to the terms of this Agreement, will be duly
authorized, validly issued, fully paid and non-assessable and will be free and
clear of all liens, encumbrances and
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adverse claims. Based in part on the representations made by AOL in Section 5
hereof, the Excite Preferred Shares and (assuming no change in applicable law
and no unlawful distribution of the Excite Preferred Shares by AOL or other
parties) the shares of Excite Common Stock issued upon conversion of the Excite
Preferred Shares, will be issued in full compliance with the registration and
prospectus delivery requirements of the 1933 Act and the registration and
qualification requirements of all securities laws of the States of the United
States (collectively, "BLUE SKY LAWS").
4.3 NO VIOLATION OF EXISTING AGREEMENTS. Neither the execution and
delivery of this Agreement nor any Excite Ancillary Agreement, nor the
consummation of the transactions contemplated hereby or thereby, will conflict
with, or (with or without notice or lapse of time, or both) result in a
termination or material breach or violation of (a) any provision of the Articles
of Incorporation of Excite, or the Bylaws of Excite, all as currently in effect,
(b) in any material respect, any agreement material to Excite's business (c) any
federal, state, local or foreign judgment, writ, decree, order, statute, rule or
regulation applicable to Excite or its assets or properties.
4.4 DISCLOSURE. Excite has made available to AOL an investor
disclosure package consisting of true and complete copies of (a) the final
prospectus from the initial public offering of Excite's Common Stock dated April
3, 1996, and (b) all Forms 10-Q and 8-K filed by Excite with the Securities and
Exchange Commission (the "SEC") since December 31, 1995 and up to the date of
this Agreement (collectively, the "EXCITE DISCLOSURE PACKAGE"). The Excite
Disclosure Package, as of the date filed with the SEC, unless subsequently
amended, this Agreement, the exhibits and schedules hereto, and any certificates
or documents to be delivered to AOL pursuant to this Agreement, when taken
together, do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements contained
herein and therein, in light of the circumstances under which such statements
were made, not misleading.
4.5 CAPITALIZATION. The authorized capital stock of Excite consists
of 25,000,000 shares of Common Stock and 4,000,000 shares of Preferred Stock.
11,965,450 shares of Excite Common Stock were issued and outstanding and no
shares of Excite Preferred Stock were outstanding as of November 15, 1996. An
aggregate of 2,200,000 shares of Excite Common Stock are reserved and authorized
for issuance pursuant to the Excite 1995 Equity Incentive Plan, an aggregate of
1,500,000 shares of Excite Common Stock are reserved and authorized for issuance
pursuant to the Excite 1996 Equity Incentive Plan, an aggregate of 150,000
shares of Excite Common Stock are reserved and authorized for issuance pursuant
to the Excite 1996 Directors Stock Option Plan, and an aggregate of 150,000
shares of Excite Common Stock are reserved and authorized for issuance pursuant
to the Excite 1996 Employee Stock Purchase Plan (all such plans are referred to
herein as the "STOCK PLANS"). As of November 15, 1996, options to purchase
2,387,107 shares of Excite Common Stock were outstanding under the Stock Plans
and no options have been issued outside of the Stock Plans. Without giving
effect to the transactions contemplated hereby, warrants to purchase 705,451
shares of Excite Common Stock are outstanding. All issued and outstanding shares
of Excite Common Stock have been duly authorized and validly issued, are fully
paid and non assessable, are not subject to any right of rescission, and have
been offered, issued, sold and delivered by Excite in compliance with all
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registration or qualification requirements (or applicable exemptions therefrom)
of applicable federal and state securities laws. Except as set forth in this
Section 4.5, there are no options, warrants, calls, commitments, conversion
privileges or preemptive or other rights or agreements outstanding to purchase
any of Excite's authorized but unissued capital stock or any securities
convertible into or exchangeable for shares of Excite Capital Stock or
obligating Excite to grant, extend, or enter into any such option, warrant,
call, right, commitment, conversion privilege or other right or agreement, and
there is no liability for dividends accrued but unpaid. There are no voting
agreements, rights of first refusal or other restrictions (other than normal
restrictions on transfer under applicable federal and state securities laws)
applicable to any of Excite's outstanding securities. Excite is not under any
obligation to register under the Securities Act any securities that may be
subsequently issued.
4.6 LITIGATION. There is no claim, action, suit or proceeding pending
or, to Excite's knowledge, threatened, against Excite, at law, in equity, by way
of arbitration or before any governmental department, commission, board or
agency that might have a material adverse effect on Excite, nor is Excite aware
of any reasonable basis therefor. There are no judgments, decrees, injunctions
or orders of any court, governmental department, commission, agency,
instrumentality or arbitrator against Excite.
5. REPRESENTATIONS AND WARRANTIES OF AOL.
AOL represents and warrants to Excite that, except as set forth in the
AOL Disclosure Letter delivered concurrently with the execution hereof, all of
the following statements are true, accurate and correct:
5.1 CORPORATE ORGANIZATION. AOL is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Delaware.
AOL is duly qualified to transact business as a foreign corporation, and is in
good standing, in all jurisdictions where the failure to be so qualified would
adversely affect the WC Business. AOL has all necessary corporate power and
authority to own and use the WC Assets and to operate the WC Business and to
enter into this Agreement and all assignments or other documents that AOL is
required to execute and deliver hereunder, including without limitation the
Ancillary Agreements (the "AOL ANCILLARY AGREEMENTS"), and holds all permits,
licenses, orders and approvals of all federal, state and local governmental or
regulatory bodies necessary and required therefor. For purposes of this Section
5.1 and with respect to Section 5.2, each representation and warranty given
herein and therein shall be deemed, as applicable, a separate representation and
warranty of each of AOL (not including GNN) and GNN.
5.2 POWER AND AUTHORITY; NO DEFAULT UPON TRANSFER. The execution,
delivery and performance by AOL of this Agreement and the AOL Ancillary
Agreements, and the consummation of all the transactions contemplated hereby and
thereby, have been duly and validly authorized by AOL by all necessary corporate
action of AOL's Board of Directors and shareholders. This Agreement and the AOL
Ancillary Agreements, when executed and delivered by AOL, will be duly and
validly executed and delivered and will be the valid and binding obligations of
AOL, enforceable against AOL in accordance with their respective terms, except
as to the effect, if any, of (a) applicable bankruptcy and other similar laws
affecting the rights of
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creditors generally, (b) rules of law governing specific performance, injunctive
relief and other equitable remedies and (c) the enforceability of provisions
requiring indemnification in connection with the offering, issuance or sale of
securities. Neither the execution and delivery of this Agreement or the AOL
Ancillary Agreements by AOL, nor the performance by AOL of its obligations under
this Agreement or the AOL Ancillary Agreements, will (i) violate AOL's
Certificate of Incorporation or By-Laws, (ii) result in a material violation or
breach of, or permit any third party to rescind any term or provision of, or
constitute a default under, any loan, note, indenture, mortgage, deed of trust,
security agreement, lease or material contract, WC Contract, license or other
agreement to which AOL is a party or by which AOL or any of the WC Assets is
bound or (iii) violate any law, statute, rule or regulation or order, writ,
judgment, injunction or decree of any court, administrative agency or government
body applicable to AOL or the WC Business.
5.3 TITLE. AOL has good and marketable title to all of the WC Assets,
free and clear of all mortgages, pledges, liens, licenses, rights of possession,
security interests, restrictions, encumbrances, charges, title retention,
conditional sale or other security arrangements and all claims or agreements of
any nature whatsoever. Title to all the WC Assets is freely transferable from
AOL to Excite without obtaining the consent or approval of any person or party.
5.4 EMPLOYEES. Included as Schedule 5.4 to the AOL Disclosure Letter is
a complete list of AOL's employees whose work relates directly to the WC
Business as of the date hereof, including, with respect to each full-time
employee a description of the title and responsibilities of each such employee,
the current compensation payable to each such employee, the date of hire and the
date and amount of last compensation adjustment and any contract, agreement,
understanding or ongoing commitment of AOL to such employee, whether or not in
written form, and with respect to each part-time employee a description of the
title and responsibilities of each such employee.
5.5 CONDITION AND COMPLETENESS OF TANGIBLE WC ASSETS. Schedule 1.2(e)
to the WC Assets Letter contains a complete list of all WC Tangible Assets, and
such list sets forth all of the tangible assets required to conduct the WC
Business as presently conducted and as it is proposed to be conducted following
the date hereof. As of the Closing, all of the material WC Tangible Assets will
be in good working condition and repair, ordinary wear and tear excepted.
5.6 LITIGATION. There is no claim, action, suit or proceeding pending
or, to AOL's knowledge, threatened, against AOL (including but not limited to
any claim, action, suit or proceeding relating to or affecting the WC Business
or the WC Assets), at law, in equity, by way of arbitration or before any
governmental department, commission, board or agency that might have a material
adverse effect on the WC Business or the WC Assets, nor is AOL aware of any
reasonable basis therefor. There are no judgments, decrees, injunctions or
orders of any court, governmental department, commission, agency,
instrumentality or arbitrator against AOL affecting the WC Assets or the WC
Business.
5.7 CONTRACTS AND COMMITMENTS. Schedule 5.7, attached to the WC Assets
Letter, lists and describes all contracts, agreements, understandings and
commitments of AOL directly related to the WC Business, whether written or oral
(other than oral agreements to employ
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employees of AOL): (i) that involve the payment by any party thereto of
consideration in an amount of $20,000 or more; (ii) under which performance may
extend beyond six (6) months after the Closing Date; (iii) that involve the
lending or borrowing of money or any guarantees by AOL or the payment of
indebtedness or performance of an obligation of any third party; (iv) that
involve transactions not in the ordinary course of the WC Business; (v) that
involve the lease or purchase of real estate; (vi) that involve the purchase or
license of any Intellectual Property related to or used in the WC Business; or
(vii) that are otherwise material to the WC Business or the WC Assets (the
"MATERIAL WC Contracts"). AOL is not in violation, breach or default of any of
the Material WC Contracts. AOL has delivered to Excite a true and correct copy
of each written WC Contract included in the WC Assets and listed on Schedule
1.2(a). AOL has obtained, or by Closing will obtain, all written consents of
third parties required to assign and transfer all Material WC Contracts to
Excite without the breach or violation of any such Material WC Contract. The
Material WC Contracts, together with the Commercial Agreement and this
Agreement, constitute in every material respect, sufficient contractual rights
to continue to operate the WC Business in the manner in which it has been
previously conducted by AOL and as it is proposed to be conducted following the
date hereof. AOL has not entered into any contracts, agreements, understandings
or commitments directly related to the WC Business, whether written or oral,
outside of the ordinary course of business since November 4, 1996.
5.8 INTELLECTUAL PROPERTY. Schedule 1.2(b) of the AOL Disclosure Letter
sets forth all Intellectual Property used to conduct the WC Business as it is
now being conducted by AOL, and such WC Intellectual Property is sufficient to
conduct the WC Business as it is now being conducted and as it is proposed to be
conducted following the date hereof, in every material respect. AOL owns,
possesses, has the exclusive right to make, use, sell and license, has the right
to bring actions for the infringement of, and where necessary, has made timely
and proper application for protection of, all WC Intellectual Property rights
that are used in the WC Business or that comprise a portion of the WC Assets.
AOL has not granted any third party any outstanding licenses or other rights to
any of the WC Intellectual Property and AOL is not liable, nor has it made any
contract or arrangement whereby it may become liable, to any person for any
royalty or other compensation for the use of any WC Intellectual Property. AOL
has not received notice of any claim that any WC Intellectual Property infringes
any Intellectual Property right of any third party and there is no basis for
such claim known to AOL. All employees and consultants of AOL and any other
third parties who have been involved in product development for AOL have
executed invention assignment agreements and all employees and consultants who
have access to confidential or trade secret information concerning AOL's
technology or products have executed nondisclosure agreements, each
substantially similar to the form of agreement attached hereto as Schedule 5.8.
To the best of AOL's knowledge, no former employee or consultant of AOL has
possession of any software (in source code or object code form) that is owned by
AOL and used in the WC Business.
5.9 COMPLETENESS OF WC ASSETS. The WC Assets, as described in Section
1.2 and listed on Schedules 1.2(a) through (e), constitute in every material
respect, all of the assets that have been used in the operation of the WC
Business, and that are sufficient to continue to operate the WC Business in the
manner in which it has been conducted by AOL prior to the date hereof and as it
is proposed to be conducted following the date hereof.
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5.10 COMPLIANCE WITH LAWS. In the operation of the WC Business, AOL
has, to the best of AOL's knowledge, duly complied with all applicable laws,
rules, regulations and orders of federal, state, local and foreign governments
(including but not limited to all export control laws and regulations of the
United States of America or any governmental, authority or agency of the United
States government), except where the failure to comply would not have a
materially adverse effect on the WC Assets or the WC Business, and AOL is not in
default with respect to any order, judgment, writ, injunction, decree, award,
rule or regulation of any court, governmental or regulatory body or arbitrator
which restrains or limits the operations of the WC Business or the use of the WC
Assets.
5.11 LABOR AND EMPLOYEE RELATIONS. There are no agreements between any
union, labor organization or other collective bargaining agent in respect of any
employee of AOL who is involved with the WC Business. The relations between AOL
and the employees of the WC Business are generally good in that the WC business
has not experienced excessive turnover and the employees of the WC Business are
generally supportive of management's goals.
5.12 AUTHORIZATION FOR THIS AGREEMENT. Except for filings required
under federal antitrust laws, no authorization, approval, consent of, or filing
with any governmental department, bureau, agency, public board, authority or
other third party is required for the consummation by AOL of the transactions
contemplated by this Agreement.
5.13 TAXES. At the Closing, and upon the date of any subsequent
transfer of WC Assets to Excite in accordance with this Agreement, there will be
no federal, state or local tax liens against any of the WC Assets to be
transferred to Excite hereunder. AOL has paid or will pay, when due, any
federal, state or local taxes attributable to periods prior to the Effective
Date with respect to the WC Assets or the WC Business which, if unpaid, may
result in a lien against any of the WC Assets.
5.14 MATERIAL MISSTATEMENTS OR OMISSIONS. No representation or warranty
by AOL in this Agreement, and no document, written statement, certificate or
schedule furnished or to be furnished to Excite by (or on behalf of) AOL
pursuant thereto, when construed together with all other such representations,
warranties, documents, written statements, certificates or schedules contains,
or will, when furnished, contain, any untrue statement of a material fact, or
omits, or will then omit to state, a material fact necessary to make any
statement of facts contained herein or therein not materially misleading. There
have been no events or transactions, or information which has come to the
attention of AOL which, as related directly to the WC Business or the WC Assets,
could reasonably be expected to have a material adverse effect on the business,
operations, affairs, prospects or condition of the WC Business or the WC Assets
other than for general economic or industry conditions or trends.
5.15 ENVIRONMENTAL MATTERS. To AOL's knowledge, without any independent
investigation, the facilities in which the WC Business operates (the
"FACILITIES") are not in violation of any federal, state or local law, ordinance
or regulation relating to disposal of Hazardous Materials (as defined below) or
the environmental conditions on or under such properties or facilities,
including but not limited to, soil and groundwater conditions. During the time
AOL has owned, leased or occupied the Facilities, AOL has not used, generated,
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manufactured or stored on or under any part of the Facilities, or transported to
or from any part of the Facilities, any Hazardous Materials in violation of
CERCLA (as defined below) or any other applicable state or federal environmental
law. AOL has no knowledge of any presence, disposals, releases or threatened
releases of any Hazardous Materials on, from or under any part of the
Facilities. For purposes of this Section, "HAZARDOUS MATERIALS" means any
hazardous or toxic substance, material or waste that is, or becomes prior to the
Closing, regulated or defined as a "hazardous substance," "pollutant",
"contaminant", "toxic chemical", "hazardous material", "toxic substance" or
"hazardous chemical" or similar hazardous substance under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
("CERCLA"), or any other similar state or federal law, statute, ordinance, rule
or regulation having a scope of purpose similar to that of CERCLA.
5.16 REPRESENTATIONS WITH RESPECT TO EXCITE PREFERRED SHARES. AOL and
AOL Ventures (each referred to as AOL for purposes of this Section 5.16 only),
each hereby represent and warrant to Excite, with respect to the Excite
Preferred Shares, as follows:
(a) Experience. AOL has experience in evaluating and investing in
private placement transactions so that AOL is capable of evaluating the merits
and risks of AOL's investment in Excite. AOL, by reason of AOL's business or
financial experience or the business or financial experience of AOL's
professional advisors who are unaffiliated with and who are not compensated by
Excite or any affiliate or selling agent of Excite, directly or indirectly, has
the capacity to protect AOL's own interests in connection with the purchase of
the securities hereunder. AOL is an accredited investor (as defined in Rule
501(a) under Regulation D under the 1933 Act), and intends for Excite to rely
upon AOL's representations when accepting AOL's investment.
(b) Investment. AOL is acquiring the Excite Preferred Shares for
investment purposes only, for AOL's own account, not as a nominee or agent, and
not with a view to, or for resale in connection with, any distributions thereof
within the meaning of the 1933 Act. AOL understands that the Excite Preferred
Shares have not been, and will not be, registered under the 1933 Act and are
being issued in accordance with a specific exemption from the registration
provisions of the 1933 Act, which depends upon, among other things, the bona
fide nature of the investment intent and the accuracy of AOL's representations
as expressed herein.
(c) Rule 144. AOL acknowledges that the Excite Preferred Shares
must be held indefinitely unless subsequently registered under the 1933 Act or
an exemption from such registration requirement is available. AOL is aware of
the provisions of Rule 144 promulgated under the 1933 Act, which permit limited
resale of securities purchased in a private placement, subject to the
satisfaction of certain conditions.
(d) Access to Data. AOL has met with representatives of Excite and
thereby has had the opportunity to ask questions of, and receive answers from,
said representatives concerning Excite and the terms and conditions of this
transaction, as well as to obtain any information requested by AOL. Any
questions raised by AOL or its representatives concerning the transaction have
been answered to the satisfaction of AOL and its representatives. AOL's
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decision to purchase the Excite Preferred Shares is based in part on AOL's own
evaluation of the risks and merits of the purchase and Excite's proposed
business activities.
(e) Tax Consequences. AOL has reviewed with its own tax advisors
the federal, state, local and foreign tax consequences of the investment in the
Excite Preferred Shares. AOL is relying solely on such advisors and not on any
statements or representations of Excite or any of its agents and understands
that AOL (and not Excite) shall be responsible for AOL's own tax liability (if
any) that may arise as a result of the investment in the Excite Preferred
Shares.
(f) Transferability. AOL agrees, acknowledges and understands
that, without the consent of Excite, the Excite Preferred Shares may not be
sold, pledged, transferred or otherwise disposed of, provided that such
restrictions shall not prevent AOL from converting the Excite Preferred Shares
to shares of Excite Common Stock pursuant to the Certificate of Determination
whereupon such shares may be transferred subject to applicable securities law
restrictions.
(g) Legends. AOL acknowledges and understands that the securities
of Excite issued hereunder shall bear the following legends (and any other
legends required under state securities laws in the opinion of legal counsel for
Excite):
(i) The Excite Preferred Shares shall bear the following legend:
THE SECURITIES REPRESENTED HEREBY MAY NOT BE GIFTED, TRANSFERRED,
PLEDGED, RESOLD OR OTHERWISE DISPOSED OF. THE SHARES EVIDENCED BY
THIS CERTIFICATE (1) ARE CONVERTIBLE INTO SHARES OF COMMON STOCK
OF THE COMPANY AT THE OPTION OF THE HOLDER, OR (2) UPON CERTAIN
CONSENTS OF THE HOLDERS OF THE COMPANY'S SERIES E PREFERRED STOCK,
ALL PURSUANT TO AND UPON THE TERMS AND CONDITIONS SPECIFIED IN THE
COMPANY'S ARTICLES OF INCORPORATION. A COPY OF SUCH ARTICLES OF
INCORPORATION MAY BE OBTAINED, WITHOUT CHARGE, AT THE COMPANY'S
PRINCIPAL OFFICE.
(ii) The Excite Preferred Shares and the shares of Excite Common
Stock into which such Excite Preferred Share may be converted
shall bear the following legends:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE
SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE
TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE
APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR
EXEMPTION THEREFROM. INVESTORS SHOULD
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BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF
THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE ISSUER OF
THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE REASONABLY SATISFACTORY TO THE ISSUER TO THE EFFECT THAT
ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND
ANY APPLICABLE STATE SECURITIES LAWS.
5.17 BROKERAGE AND FINDER'S FEES. Neither AOL nor any of its affiliates
has employed any broker, finder or agent, or agreed to pay or incurred any
brokerage fee, finder's fee or commission with respect to the transactions
contemplated by this Agreement, or dealt with anyone purporting to act in the
capacity of a broker, finder or agent with respect thereto as a result of which
any claim for a fee can be asserted against Excite.
6. COVENANTS OF EXCITE.
Excite covenants and agrees with AOL as follows:
6.1 CONFIDENTIAL INFORMATION. All copies of financial information,
marketing and sales information, pricing, marketing plans, business plans,
financial and business projections, manufacturing processes and procedures,
formulae, methodologies, inventions, product designs, product specifications and
drawings, and other confidential and/or proprietary information of AOL disclosed
to Excite in connection with the transactions contemplated by this Agreement
("AOL CONFIDENTIAL INFORMATION") will be held in confidence and not used or
disclosed by Excite or any of its employees, affiliates or stockholders for a
period of three (3) years from the Effective Date and will be promptly destroyed
by Excite or returned to AOL, upon AOL's written request to Excite; provided,
however that from and after the Closing, the foregoing covenant shall not be
applicable to any AOL Confidential Information related to the WC Business that
is included in the WC Assets. Excite's employees, affiliates and stockholders
will not be given access to AOL Confidential Information from and after the
Closing other than AOL Confidential Information related to the WC Business that
is included in the WC Assets, except on a "need to know" basis. It is agreed
that AOL Confidential Information will not include information that: (a) is
proven to have been known to Excite prior to receipt of such information from
AOL; (b) is disclosed by a third party having the legal right to disclose such
information and who owes no obligation of confidence to AOL; (c) is now, or
later becomes part of the general public knowledge or literature in the art,
other than as a result of a breach of this Agreement by Excite; or (d) is
independently developed by Excite without the use of any AOL Confidential
Information. The provisions of this Section 6.1 and of Section 7.5 supersede any
existing non-disclosure agreements entered into between the parties with respect
to AOL Confidential Information and Excite Confidential Information, provided
however that existing non-disclosure agreements entered into between the parties
with respect to confidential information that does not constitute AOL
Confidential Information or Excite Confidential Information as defined herein
shall not be affected by this Section 6.1 or Section 7.5.
6.2 XXXX-XXXXX-XXXXXX COMPLIANCE. Promptly after execution of this
Agreement, Excite shall cooperate with AOL to prepare and file such
notifications as are required pursuant to
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the Xxxx-Xxxxx-Xxxxxx Pre-Merger Notification Act of 0000 (xxx "XXX XXX").
Excite and AOL shall share the filing fees of such filings equally.
6.3 FAIRNESS HEARING. Excite shall request the Department of
Corporations to conduct a Fairness Hearing and upon agreement of the Department
of Corporations to do so, make all necessary filings in a timely manner and take
all necessary measures as soon as practicable to facilitate the granting by the
Department of Corporations of the California Permit. If Excite is unable to
obtain, for whatever reason, the California Permit or if existing law is
interpreted to the effect that the California Permit does not provide an
exemption from registration under the 1933 Act, Excite shall file a shelf
registration statement on Form S-3 with respect to the shares of Excite Common
Stock into which the Transaction Shares are convertible, in the time period and
as further provided in the Registration Rights Agreement. All of the shares of
Excite Common Stock into which the Transaction Shares are convertible shall be
entitled to certain demand and piggyback registration rights as further provided
in the Registration Rights Agreement.
6.4 SATISFACTION OF CLOSING CONDITIONS. Excite shall use reasonable
best efforts to satisfy the conditions to AOL's obligations set forth in
Sections 8.1 and 8.3 prior to December 31, 1996, provided however that Excite's
failure to satisfy such conditions shall not be deemed a breach of this
Agreement.
6.5 ELECTION OF AOL REPRESENTATIVE TO BOARD. Excite will use all
reasonable efforts to have the holders of a sufficient number of the voting
shares of Excite stock execute a voting agreement (or provide another instrument
with the same effect) to ensure the election of a representative of AOL to the
Board of Directors of Excite for so long as AOL holds at least 1,315,165 shares
of Excite Common Stock on an as converted to Common Stock basis and as adjusted
for stock splits, reclassifications, recapitalizations and similar events.
6.6 SURVIVAL OF COVENANTS. The covenants set forth in Section 6.2 shall
survive the Closing. The covenants set forth in Section 6.1 above shall survive
the termination of this Agreement for any reason.
7. COVENANTS OF AOL.
AOL covenants and agrees with Excite as follows:
7.1 ACCESS TO INFORMATION. From the date hereof to the Closing Date,
AOL will afford to the representatives of Excite, including its counsel and
auditors, during normal business hours, access to any and all of the WC Assets
and information with respect to the WC Business to the end that Excite may have
a reasonable opportunity to make such a full investigation of the WC Assets and
of the WC Business in advance of the Closing Date as it shall reasonably desire,
and the officers of AOL will confer with representatives of Excite and will
furnish to Excite, either orally or by means of such records, documents, and
memoranda as are available or reasonably capable of preparation, such
information as Excite may reasonably request, and AOL will furnish to Excite's
auditors all consents and authority that they may reasonably request in
connection with any examination of Excite. In addition, AOL will afford the
Excite's
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representatives, including its counsel and auditors, reasonable access to the
Facilities and all WC Assets located at the Facilities at reasonable times.
7.2 CONSENT OF THIRD PARTIES. Prior to the Closing Date, AOL shall
obtain the consent in writing of all persons necessary to permit AOL to assign
and transfer all of the WC Assets (including but not limited to the WC
Contracts) to Excite, free and clear of all liens, security interests,
restrictions, claims and encumbrances (other than the Assumed Liabilities) and
to perform its obligations under, and to conclude the transactions contemplated
by, this Agreement in order that the performance hereof will not result in the
termination of, or any violation, breach or default under, any WC Contracts or
any material contracts, loans, notes, agreements, obligations, leases, permits
or licenses to which AOL is a party or by which any of AOL's property is bound.
Notwithstanding the foregoing, AOL shall only be required to use all reasonable
efforts to obtain the rights for Excite to use the PLS licenses covering all
existing service and development hardware for the CPL text retrieval engine,
indexer and summarizer and for PLweb, provided that the scope of such rights
shall be as reasonably requested by Excite.
7.3 FURTHER ASSURANCES. From and after the Closing Date, AOL shall
promptly execute and deliver to Excite any and all such further assignments,
licenses, endorsements and other documents as Excite may reasonably request for
the purpose of effecting the transfer of AOL's title to the WC Assets to Excite
and/or carrying out the provisions of this Agreement and the Ancillary
Agreements, including, but not limited to, granting Excite a non-exclusive,
world-wide, perpetual, transferable, irrevocable and royalty-free license to
make use of any and all AOL Intellectual Property not included in the WC Assets
to the extent necessary or desirable to allow Excite to fully exploit the WC
Assets and the WC Business.
7.4 USE OF NAME "WEBCRAWLER". Subject to AOL's rights (if any) under
the Operating Agreement, after the Closing Date, AOL shall cease to use the
trademark and trade name "WebCrawler" or any similar name, without the prior
written consent of Excite. AOL hereby grants Excite the rights to use the
WebCrawler trademark and tradename after the date hereof and until the Closing.
7.5 CONFIDENTIAL INFORMATION. All copies of financial information,
marketing and sales information, pricing, marketing plans, business plans,
financial and business projections, manufacturing processes and procedures,
formulae, methodologies, inventions, product designs, product specifications and
drawings, and other confidential and/or proprietary information of Excite
disclosed to AOL in connection with the transactions contemplated by this
Agreement ("EXCITE CONFIDENTIAL INFORMATION") will be held in confidence and not
used or disclosed by AOL or any of its employees, affiliates or stockholders for
a period of three (3) years from the Effective Date and will be promptly
destroyed by AOL or returned to Excite, upon Excite's written request to AOL.
AOL's employees, affiliates and stockholders will not be given access to Excite
Confidential Information except on a "need to know" basis. It is agreed that
Excite Confidential Information will not include information that: (a) is proven
to have been known to AOL prior to receipt of such information from the Excite;
(b) is disclosed by a third party having the legal right to disclose such
information and who owes no obligation of confidence to the Excite; (c) is now,
or later becomes part of the general public knowledge or literature in the art,
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other than as a result of a breach of this Agreement by AOL; or (d) is
independently developed by AOL without the use of any Excite Confidential
Information.
7.6 EMPLOYEES. At Excite's request, AOL shall cooperate with Excite in
identifying those of AOL's employees that are currently employed in connection
with the WC Business that Excite may wish to hire either as employees or
consultants (including, but not limited to, Xxxxx Xxxxxxxxx and Xxxx Xxxxx) and
in facilitating the employment or the engagement as consultants by Excite, after
the Closing Date, of such individuals (including any employees who become such
after the Effective Date), which Excite elects to employ or engage as a
consultant, including permitting Excite to interview and offer employment or
consulting agreements to such employees. The parties hereby acknowledge that
Excite is under no obligation whatsoever to employ any current or future
employees of AOL or any of its affiliates and that AOL and its affiliates alone
remain responsible for all obligations and liabilities, whether arising under
statute, regulation or contract, to present and future employees of AOL and its
affiliates arising out of their employment (or the termination of their
employment) with AOL or any of AOL's affiliates, including but not limited to
any obligations and liabilities arising under or from any existing or future
Employee Plans or other employee benefit plans of AOL or any of its affiliates,
any present or future obligations or liabilities of AOL or any of its affiliates
to existing or future employees of AOL under COBRA or WARN or any severance pay
obligations of AOL or any of its affiliates.
7.7 XXXX-XXXXX-XXXXXX COMPLIANCE. Promptly after execution of this
Agreement, AOL shall cooperate with Excite to prepare and file such
notifications as are required pursuant to the HSR Act. Excite and AOL shall
share the filing fees of such filings equally.
7.8 SATISFACTION OF CLOSING CONDITIONS. AOL shall use reasonable best
efforts to satisfy the conditions to Excite's obligations set forth in Sections
8.1 and 8.2 prior to December 31, 1996, provided however that AOL's failure to
satisfy such conditions shall not be deemed a breach of this Agreement.
7.9 UPDATE OF SCHEDULES 1.2(A) AND 5.7. Within fourteen days of the
date hereof, AOL shall deliver to Excite revised Schedules 1.2(a) and 5.7 that
will contain all contracts, agreements, understandings and commitments of AOL
directly related to the WC Business, whether written or oral, and all Material
WC Contracts, that were not included on the Schedule 1.2(a) and 5.7,
respectively, delivered to Excite and in its possession as of November 4, 1996.
7.10 CONSENTS OF GNN. Prior to the Closing, AOL will cause GNN to
execute and deliver all necessary consents and approvals necessary to effectuate
the transactions contemplated hereby.
7.11 SURVIVAL OF COVENANTS. Each of the covenants set forth in Sections
7.3, 7.4, 7.6 and this Section 7.11 shall survive the Closing. The covenants set
forth in Section 7.5 above shall survive the termination of this Agreement for
any reason. The remaining covenants of this Section 7 shall expire at the
Closing or other termination of this Agreement.
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8. CONDITIONS TO CLOSING.
8.1 CONDITION TO EXCITE'S AND AOL'S OBLIGATIONS. The obligations of
each of Excite and AOL hereunder shall be subject to the satisfaction and
fulfillment of each of the following conditions, except as either party may
expressly waive in writing (but only with respect to such party's own
obligations hereunder):
(a) Xxxx-Xxxxx-Xxxxxx Compliance. All applicable waiting periods
under the HSR Act shall have expired or early termination shall have been
granted by both the Federal Trade Commission and the United States Department of
Justice.
(b) Certificate of Determination. The Certificate of Determination
shall have been filed with and accepted by the Secretary of State of the State
of California.
(c) Ancillary Agreements. Excite and AOL shall have each executed
and delivered the Commercial Agreement, Operating Agreement, Registration Rights
Agreement and Voting Trust Agreement.
(d) Commercial Agreement. The Commercial Agreement shall be in
effect. The Closing shall be delayed if (i) either party has committed a
material breach of its material covenants, obligations, representations or
warranties under the Commercial Agreement (a "MATERIAL BREACH") and the
non-breaching party has given notice of its intent to terminate the Commercial
Agreement as the result of such Material Breach, until such time as the Material
Breach is cured, but only if the Material Breach is cured within the cure period
provided for in Section 12.2 of the Commercial Agreement, (ii) there is a
dispute as to whether a Material Breach has occurred or whether such Material
Breach has been cured, until such time as the dispute is resolved pursuant to
the dispute resolution procedures set forth in Section 16 of the Commercial
Agreement.
8.2 CONDITIONS TO EXCITE'S OBLIGATIONS. The obligations of Excite
hereunder shall be subject to the satisfaction and fulfillment of each of the
following conditions, except as Excite may expressly waive the same in writing:
(a) Conduct of WC Business. From the date hereof to the Closing
Date, AOL shall have faithfully performed its obligations under the Operating
Agreement in all material respects. With respect to matters not contemplated by
the Operating Agreement, this Agreement, and the Ancillary Agreements, AOL shall
have conducted the WC Business only in the ordinary course, consistent with
AOL's past practices, or as may be consented to by Excite in writing.
(b) Accuracy of Representations and Warranties on Closing Date. The
representations and warranties made herein by AOL in Section 5 (as qualified by
the AOL Disclosure Letter) shall be true and correct in all material respects,
and not misleading in any material respect, on and as of the date given, and on
and as of the Closing Date with the same force and effect as though such
representations and warranties were made on and as of the Closing Date, provided
however, that the representations and warranties made by AOL in Section 5.10 on
and as of the Closing Date shall not be deemed to be qualified by the AOL
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Disclosure Letter, and provided further, that it shall not be a condition to
Excite's obligations that certain representations and warranties made herein by
AOL in Section 5 (as qualified by the AOL Disclosure Letter) and which are
specifically identified on Exhibit H shall be true and correct in all material
respects, and not misleading in any material respect, on and as of the Closing
Date with the same force and effect as though such representations and
warranties were made on and as of the Closing Date, if the reason why such
representations and warranties can not be reasserted as of the Closing Date is
because Excite has assumed the operation of the WC Business after the date
hereof.
(c) Compliance. As of the Closing Date, AOL shall have complied in
all material respects with, and shall have fully performed, in all material
respects, all conditions, covenants and obligations of this Agreement imposed on
AOL and required to be performed or complied with by AOL at, or prior to, the
Closing Date.
(d) Officer's Certificate. AOL shall deliver a certificate signed
by a duly authorized officer of AOL certifying that the conditions set forth in
Section 8.2(a), (b) and (c) have been fully complied with.
(e) Delivery of WC Assets. AOL shall have delivered, and Excite
shall have received, the WC Assets.
(f) Opinion of AOL's Counsel. Excite shall have received an opinion
of Piper & Marbury L.L.P., counsel for AOL, dated the Closing Date and
containing the customary provisions for a transaction of the type contemplated
herein.
(g) AOL's Consents Obtained. All consents required to be obtained
by AOL pursuant to Section 7.2 shall have been obtained.
(h) Certificate of Corporate Proceedings. AOL shall deliver a
certified copy of the resolutions of the Board of Directors of AOL authorizing
the execution and delivery by AOL of this Agreement, and all related agreements,
and the consummation of the transactions contemplated hereby and thereby;
(i) Further Documents. AOL shall deliver such further certificates
and documents, including any specific assignments and other instruments of
conveyance as Excite and/or Excite's counsel may reasonably request.
(j) Xxxx of Sale. AOL shall have executed and delivered the Xxxx of
Sale.
8.3 CONDITIONS TO AOL'S OBLIGATIONS. The obligations of AOL hereunder
shall be subject to the satisfaction and fulfillment of each of the following
conditions, except as AOL may expressly waive the same in writing:
(a) Accuracy of Representations and Warranties on Closing Date. The
representations and warranties made herein by Excite in Section 4 hereof (as
qualified by the Excite's Disclosure Letter) shall be true and correct in all
material respects, and not misleading in any material respect, on and as of the
date given, and on and as of the Closing Date with the same
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force and effect as though such representations and warranties were made on and
as of the Closing Date.
(b) Compliance. As of the Closing Date, Excite shall have complied
in all material respects with, and shall have fully performed, the terms,
conditions, covenants and obligations of this Agreement imposed thereon to be
performed or complied with by Excite at, or prior to, the Closing Date.
(c) Officer's Certificate. Excite shall deliver a certificate
signed by a duly authorized officer of Excite certifying that the conditions set
forth in Section 8.3(a) and (b) have been fully complied with.
(d) Opinion of Excite's Counsel. AOL shall have received an opinion
of Fenwick & West LLP, counsel for Excite, dated the Closing Date and containing
the customary provisions for a transaction of the type contemplated herein.
(e) Assumption of Liabilities. Excite shall have executed and
delivered the Assumption of Liabilities in the form of Exhibit L with respect to
the Assumed Liabilities.
(f) Certificate of Corporate Proceedings. Excite shall deliver a
certified copy of the resolutions of the Board of Directors of Excite
authorizing the execution and delivery by Excite of this Agreement, and all
related agreements, and the consummation of the transactions contemplated hereby
and thereby.
(g) Further Documents. Excite shall deliver such further
certificates and documents as AOL and/or AOL's counsel may reasonably request.
(h) AOL Board Representation. A voting agreement (or other
instrument with the same effect) shall have been executed by the holders of a
sufficient number of shares of Excite stock to ensure the election of a
representative of AOL to the Board of Directors of Excite for so long as AOL
holds at least 1,315,165 shares of Excite Common Stock on an as converted to
Common Stock basis and as adjusted for stock splits, reclassifications,
recapitalizations and similar events.
9. INDEMNIFICATION.
9.1 SURVIVAL OF WARRANTIES. All representations and warranties made by
AOL or Excite herein, or in any certificate, schedule or exhibit delivered
pursuant hereto, shall survive the Closing for a period of one (1) year after
December 31, 1996; provided however, that the representations and warranties
made by AOL in Sections 5.7, 5.8 and 5.9 shall survive the Closing for a period
of two (2) years after December 31, 1996 and provided further that
representations, warranties and covenants involving intentional fraud or willful
misconduct shall survive the Closing until the applicable statute of limitations
has expired.
9.2 INDEMNIFIED LOSSES. For the purpose of this Section 9.2 and when
used elsewhere in this agreement, "LOSS" shall mean and include any and all
liability, loss, damage, claim, expense, cost, fine, fee, penalty, obligation or
injury including, without limitation, those
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resulting from any and all actions, suits, proceedings, demands, assessments,
judgments, award or arbitration, together with reasonable costs and expenses
including the reasonable attorneys' fees and other legal costs and expenses
relating thereto; provided, however, that Loss shall not include punitive or
exemplary damages.
9.3 INDEMNIFICATION BY AOL. Subject to the provisions and limitations
set forth in this Section 9, AOL agrees to defend, indemnify and hold harmless
Excite, any parent, subsidiary or affiliate of Excite and any director, officer,
employee, stockholder, agent or attorney of Excite or of any parent, subsidiary
or affiliate of Excite (collectively, the "EXCITE INDEMNITEES") from and against
any Loss which arises out of or results from:
(a) any breach of any covenant, or the inaccuracy or untruth of any
representation or warranty of AOL made herein;
(b) taxes, assessments and other governmental charges of any kind
or nature whatsoever, including without limitation any sales or use tax
applicable to the transfer of the WC Assets payable by AOL pursuant to Section
2.3, any withholding, social security or unemployment levies, arising out of, or
payable with respect to, the WC Business through the Closing Date, except for
such liabilities as are specifically and expressly assumed by Excite in Section
3.1 hereof;
(c) liability for noncompliance with any bulk sales, bulk transfer
or similar laws applicable to the transactions contemplated by this Agreement or
any claims asserting that any transactions contemplated by this Agreement
constitute a fraudulent conveyance or similar claim;
(d) any Excluded Liability and any other demand, claim, debt, suit,
cause of action, arbitration or other proceeding (including, but not limited to,
a warranty claim, a strict product liability claim or any other claim) that is
made or asserted by any third party that relates to any product or service that
was sold, licensed or otherwise provided by AOL to any customer;
(e) any demand, claim, debt, suit, cause of action or proceeding
made or asserted by any employee or independent contractor or any former
employee or independent contractor of AOL, that relates in any manner to any
termination by AOL of its employment or the services of such employee or
independent contractor or any other matter relating to AOL's employment of such
employee or independent contractor.
9.4 INDEMNIFICATION BY EXCITE. Subject to the provisions and
limitations set forth in this Section 9, Excite agrees to defend, indemnify and
hold harmless AOL, any parent, subsidiary or affiliate of AOL and any director,
officer, employee, stockholder, agent or attorney of AOL or of any parent,
subsidiary or affiliate of AOL (collectively, the "AOL INDEMNITEES") from and
against and in respect of any Loss which arises out of or results from:
(a) any breach by Excite of any covenant, or the inaccuracy or
untruth of any representation or warranty of Excite made herein;
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(b) the failure of Excite to timely pay or perform any of the
Assumed Liabilities;
(c) the failure of Excite to timely pay any sales or use tax
applicable to the transfer of the WC Assets payable by Excite pursuant to
Section 2.3.
provided however, that nothing in this Section 9.4 shall impose on Excite any
duty to indemnify AOL for any Excluded Liabilities.
9.5 MINIMUM AND MAXIMUM DAMAGES.
(a) The indemnification provided for subsections 9.3 and 9.4 shall
not apply unless and until aggregate Losses for which one or more indemnified
party seeks indemnification under this section, exclusive of legal fees, exceeds
$125,000.00 (the "BASKET") and then only to the extent that aggregate Losses
exceed the Basket. Excite and AOL will each use its best efforts to obtain
recoveries under all applicable insurance policies for all Losses.
(b) The maximum damages for which Excite is indemnified pursuant to
Section 9.3 (i) for Losses suffered as the result of breaches of the
representations and warranties contained in Sections 5.7, 5.8 and 5.9 shall be
equal to (A) the average of the Excite closing price on the Nasdaq National
Market System for the ten (10) day period ending on the date hereof (the "EXCITE
AVERAGE PRICE"), multiplied by (B) the number of Transaction Shares (such
product is referred to as the "TRANSACTION VALUE"); (ii) shall be unlimited with
respect to Losses suffered as the result of intentional fraud or willful
misconduct, and (iii) shall be twenty-five percent (25%) of the Transaction
Value with respect to all other Losses.
(c) The maximum damages for which AOL is indemnified pursuant to
Section 9.4 shall be equal to the Transaction Value, except with respect to
Losses suffered as the result of intentional fraud or willful misconduct for
which such indemnification shall be unlimited.
9.6 PROCEDURES FOR INDEMNIFICATION. If any action, suit or proceeding
shall be commenced against, or any claim or demand be asserted against, AOL or
Excite, as the case may be, in respect of which AOL or Excite is entitled to
demand indemnification under Section 9 of this Agreement, then as a condition
precedent thereto, the party seeking indemnification ("INDEMNITEE") shall
promptly notify the other party ("INDEMNITOR") in writing to that effect, and
with reasonable particularity and with reference to the applicable provision(s)
of this Agreement. The Indemnitor shall have the right to assume the entire
control of the defense, compromise or settlement of such action, suit,
proceeding or claim and including the selection of counsel, subject to the right
of the Indemnitee to participate (at its expense and with counsel of its choice)
in the defense, compromise or settlement of such action, suit, proceeding, claim
or demand, and in connection therewith, the Indemnitee shall cooperate fully in
all respects with the Indemnitor in any such defense, compromise or settlement.
The Indemnitor will not compromise or settle any such action, suit, proceeding,
claim or demand without the prior written consent of the Indemnitee, which
consent will not be unreasonably withheld or delayed. So long as the Indemnitor
is defending in good faith any such action, suit, proceeding, claim or demand
asserted by a third party against the Indemnitee, the Indemnitee shall not
settle or compromise such
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action, suit, proceeding, claim or demand without the prior written consent of
the Indemnitor, which consent will not be unreasonably withheld or delayed. The
Indemnitee shall make available to the Indemnitor or its agents all records and
other materials in the Indemnitee's possession reasonably required for
contesting any third party claim or demand. If the Indemnitor shall fail to
promptly and adequately defend any such action, suit, proceeding, claim or
demand, then the Indemnitee may defend, through counsel of its own choosing,
such action, suit, proceeding, claim or demand and (so long as Indemnitee gives
the Indemnitor at least ten (10) days' notice of the terms of the proposed
settlement thereof and permits the Indemnitor to then undertake the defense
thereof if Indemnitor objects to the proposed settlement) to settle such action,
suit, proceeding, claim or demand and to recover from the Indemnitor the amount
of such Losses.
9.7 PERIOD FOR MAKING CLAIMS. A claim or claims for
indemnification under this Section 9 must be brought, if at all, at any time
within one (1) year after December 31, 1996, provided however, that any claim or
claims for indemnification for breaches of the representations and warranties
made by AOL in Sections 5.7, 5.8 and 5.9 may be brought at any time within two
(2) years after December 31, 1996, and any claim or claims for indemnification
resulting from breaches of the representations, warranties and covenants made
herein involving intentional fraud or willful misconduct may be brought at any
time until the applicable statute of limitations (including extensions) has
expired.
9.8 INDEMNIFICATION PAYMENTS.
(a) Payments made by AOL to Excite in satisfaction of its
indemnification obligations under this Section 9 shall, at the option of AOL, be
made either (a) in cash or (b) in shares of Excite Common Stock, with each share
valued at the Excite Average Price.
(b) Payments made by Excite to AOL in satisfaction of its
indemnification obligations under this Section 9 shall, at the option of Excite,
be made either (a) in cash or (b) by adjusting the Conversion Price, as defined
in the Certificate of Determination, so that upon conversion of the Excite
Preferred Shares into shares of Excite Common Stock, AOL will receive an
additional number of shares of Excite Common Stock, with each share valued at
the Excite Average Price, that have a value equal to the amount of the
indemnification payments due to AOL from Excite.
9.9 SOLE REMEDY. Except with respect to the covenants contained in
Sections 6.1, 7.3 and 7.5, for which injunctive relief shall be available, the
indemnification provided for in this Section 9 shall be the sole remedy with
respect to any claims arising under this Agreement.
10. TERMINATION OF AGREEMENT
10.1 PRIOR TO CLOSING.
(a) This Agreement may be terminated at any time prior to the
Closing by the mutual written consent of each of the parties hereto.
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(b) Unless otherwise agreed by the parties hereto, this Agreement
will be terminated if the Closing shall not have occurred on or before March 31,
1997.
10.2 AT THE CLOSING. At the Closing, this Agreement may be terminated
and abandoned:
(a) By Excite if any of the conditions precedent to Excite's
obligations set forth in Section 8.1 or 8.2 above have not been fulfilled or
waived at and as of the Closing; or
(b) By AOL if any of the conditions precedent to AOL's obligations
set forth in Section 8.1 or 8.3 above have not been fulfilled or waived at and
as of the Closing.
Any termination of this Agreement under this Section 10.2 will be effective by
the delivery of notice of the terminating party to the other party hereto.
11. AMENDMENT OF STANDSTILL PROVISIONS. Effective upon the Closing,
Section 9 of the Series D Preferred Stock Purchase Agreement (the "PURCHASE
AGREEMENT") shall be amended as follows:
11.1 STANDSTILL PERCENTAGE. The first sentence of Section 9 of the
Purchase Agreement shall be amended in its entirety as follows:
Without the written consent of the Company, AOL Ventures, Inc., Tribune
Company, and their respective affiliates (collectively, the "Standstill
Investors"), each agrees not to acquire any additional shares of the
Company's Voting Securities (as defined below) in the open market or
otherwise if and to the extent such acquisition results in (i) Tribune
Company and its affiliates holding greater than 20% of the total Voting
Securities or (ii) AOL Ventures, Inc. and its affiliates holding
greater than 25% of the total Voting Securities. Each such percentage
limitation is referred to in this Section 9 as the "Standstill
Percentage."
11.2 CONTROL TRANSACTION. The first sentence of Section 9(a) of
the Purchase Agreement shall be amended in its entirety as follows:
To the extent not prohibited by a nondisclosure agreement, the Company
shall promptly notify each Standstill Investor in the event that the
Company enters into any bona fide discussions with any third party
which the Company reasonably believes will result in a Control
Transaction (as defined below). Notwithstanding the foregoing, the
Company will provide notice to each Standstill Investor at least five
calendar days prior to entering into a binding definitive agreement
with respect to a Control Transaction, and will further notify each
Standstill Investor after such discussions terminate.
11.3 THIRD PARTY OFFER. Section 9(c) of the Purchase Agreement
shall be amended in its entirety as follows:
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Each Standstill Investor's obligations shall terminate upon the making
of a bona fide offer by any third party or group (within the meaning of
Rule 13d-5 under the Securities Exchange Act of 1934, as amended) of an
intention to acquire Voting Securities of the Company which, if
successful, would not be covered under (b) above and would result in
such party or group owning or having the right to acquire beneficial
ownership of more than twenty percent (20%) of the Company's Voting
Securities.
11.4 DEFINITION OF VOTING SECURITIES. The definition of "Voting
Securities" set forth in Section 9 of the Purchase Agreement shall be amended in
its entirety as follows:
"Voting Securities" shall mean the shares of Common Stock and Preferred
Stock of the Company and in addition, any other securities of the
Company convertible into or exerciseable for Common Stock which have a
conversion or exercise price less than the market price of the
Company's Common Stock at the time any additional share of Common Stock
or other Company securities are acquired, but shall not include options
exerciseable for Common Stock held by employees of the Company.
Except as expressly amended hereby, all other terms and conditions of
the Purchase Agreement shall remain in full force and effect.
12. MISCELLANEOUS.
12.1 EXPENSES. Each of the parties hereto shall bear its own expenses
(including without limitation attorneys' fees) in connection with the
negotiation and consummation of the transactions contemplated hereby.
12.2 NOTICES. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be personally or sent by certified or
registered United States mail, postage prepaid, or sent by nationally recognized
overnight express courier and addressed as follows:
(a) if to Excite, at:
Excite, Inc.
0000 X. Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Attention: President
Facsimile: 415/943-2888
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with a copy to:
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, CA 9306
Attention: Xxxx X. Xxxxxxx
Facsimile: 415/494-0674
(b) If to AOL:
America Online, Inc.
00000 XXX Xxx
Xxxxxx, XX 00000
Attention: General Counsel
Facsimile: 703/265-2208
with a copy to:
Piper & Marbury L.L.P.
0000 Xxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX. 00000-0000
Attention: Xxxxx X. Xxxxxx
Facsimile; 202/223-2085
12.3 ENTIRE AGREEMENT; CAPTIONS. This Agreement, the Schedules hereto
(which are incorporated herein by reference) and the agreements to be executed
and delivered in connection herewith, together constitute the entire agreement
and understanding between the parties and there are no agreements or commitments
with respect to the transactions contemplated herein except as set forth in this
Agreement. This Agreement supersedes any prior offer, agreement or understanding
between the parties with respect to the transactions contemplated hereby. The
captions in this Agreement are for convenience only and shall not be considered
a part of or affect the construction or interpretation of any provision of this
Agreement.
12.4 AMENDMENT; WAIVER. Any term or provision of this Agreement may be
amended only by a writing signed by AOL and Excite. The observance of any term
or provision of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) only by a writing
signed by the party to be bound by such waiver. No waiver by a party of any
breach of this Agreement will be deemed to constitute a waiver of any other
breach or any succeeding breach.
12.5 NO THIRD PARTY BENEFICIARIES. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or to give any
person, firm or corporation, other than the parties hereto, any rights or
remedies under or by reason of this Agreement.
12.6 EXECUTION IN COUNTERPARTS. For the convenience of the parties,
this Agreement may be executed in one or more counterparts, each of which shall
be deemed an original but all of which together shall constitute one and the
same instrument.
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12.7 ASSIGNMENT. These rights and obligations of the parties to this
Agreement may not be delegated or assigned by any party hereto without the prior
written consent of the other party and any such attempted delegation or
assignment shall be void.
12.8 BENEFIT AND BURDEN. This Agreement shall be binding upon, shall
inure to the benefit of, and be enforceable by and against, the parties hereto
and their respective successors and permitted assigns.
12.9 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of California (excluding
application of any choice of law doctrines that would make applicable the law of
any other state or jurisdiction) and, where appropriate, applicable federal law.
12.10 SEVERABILITY. If any provision of this Agreement is for any
reason and to any extent deemed to be invalid or unenforceable, then such
provision shall not be voided but rather shall be enforced to the maximum extent
then permissible under then applicable law and so as to reasonably effect the
intent of the parties hereto, and the remainder of this Agreement will remain in
full force and effect.
12.11 ATTORNEYS' FEES. Should a suit or arbitration be brought to
enforce or interpret any provision of this Agreement, the prevailing party shall
be entitled to recover reasonable attorneys' fees to be fixed in amount by the
Court or the Arbitrator(s) (including without limitation costs, expenses and
fees on any appeal). The prevailing party will be entitled to recover its costs
of suit or arbitration, as applicable, regardless of whether such suit or
arbitration proceeds to a final judgment or award.
12.12 SECTIONS AND EXHIBITS. Except as otherwise indicated, all
references in this Agreement to "Section(s)" and "Exhibit(s)" are intended to
refer to Section(s) to this Agreement and Exhibit(s) to this Agreement,
respectively.
12.13 DISPUTE RESOLUTION. All disputes arising under this Agreement
shall be resolved pursuant to the dispute resolution procedures set forth in the
Commercial Agreement.
12.14 CONSTRUCTION OF AGREEMENT. This Agreement has been negotiated by
the respective parties hereto and their attorneys and the language hereof will
not be construed for or against either party.
12.15 PUBLIC ANNOUNCEMENT. Upon execution of the Agreement by both
parties, and until the Closing, all press releases and other public and private
communications shall be made by the parties only with the mutual written consent
of AOL and Excite, except that each party may make such disclosures as are
required by applicable law, provided, however, that a copy of such disclosure
shall first be submitted to the other party within a reasonable time period
prior to the dissemination thereof.
[THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Excite and AOL executed and delivered this
Agreement by their duly authorized representatives as of the Effective Date.
AMERICA ONLINE, INC.: EXCITE, INC.:
By: /s/ Miles Gilburne By: /s/ Xxxxxx Xxxx
-------------------------------- --------------------------------
Name: Name:
------------------------------ ------------------------------
Its: Its:
------------------------------- -------------------------------
GLOBAL NETWORK NAVIGATOR, INC.:
By: /s/ Xxx Leodris
--------------------------------
Name:
------------------------------
Its:
-------------------------------
WITH RESPECT TO SECTION 11 ONLY:
AOL VENTURES, INC.: TRIBUNE COMPANY:
By: /s/ Miles Gilburne By: /s/ Xxxxx Xxxxxx
-------------------------------- --------------------------------
Name: Name: Xxxxx Xxxxxx
------------------------------ ------------------------------
Its: Its: Sr. Vice President
------------------------------- -------------------------------
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