1
EXHIBIT 10.31
EXCITE, INC.
FORM OF STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of ___, 1997 by and between EXCITE, INC., a California corporation
(the "Company") and __________, a _________________ (the "Investor").
W I T N E S S E T H:
WHEREAS, the Company desires to sell to Investor, and Investor desires
to purchase from the Company, shares of the Company's Common Stock on the terms
and conditions set forth in this Agreement;
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. AGREEMENT TO PURCHASE AND SELL STOCK. The Company agrees to sell to
Investor at the Closing, and Investor agrees to purchase from the Company at the
Closing, _________ shares of Common Stock at a price of $_______ per share. The
shares of Common Stock purchased and sold pursuant to this Agreement will be
collectively hereinafter referred to as the "Purchased Shares."
2. CLOSING.
2.1 The Closing. The purchase and sale of the Purchased Shares
will take place at the offices of Fenwick & West LLP, Two Palo Xxxx Xxxxxx,
Xxxxx 000, Xxxx Xxxx, Xxxxxxxxxx, at ____ a.m. Pacific Daylight Time, on _____,
1997 or at such other time and place as the Company and Investor mutually agree
upon (which time and place are referred to in this Agreement as the "Closing").
At the Closing, the Company will deliver to Investor a certificate representing
the number of Purchased Shares that Investor has agreed to purchase hereunder
against delivery to the Company by Investor of the full purchase price of such
Purchased Shares, paid by (i) a check payable to the Company's order, (ii) wire
transfer of funds to the Company, or (iii) any combination of the foregoing.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to Investor that the statements in the following
paragraphs of this Section 3 are all true and correct:
3.1 Organization, Good Standing and Qualification. The Company
is a corporation duly organized, validly existing and in good standing under the
laws of the State of California. The Company is qualified to do business as a
foreign corporation in each jurisdiction where failure to be so qualified would
have a material adverse effect on its financial condition, business, prospects
or operations.
3.2 Capitalization. Immediately prior to the Closing the
capitalization of the Company will consist of the following:
2
(a) Preferred Stock. A total of 4,000,000 authorized
shares of Preferred Stock, no par value per share (the "Preferred Stock"),
consisting of 1,250,000, 700,000, 650,000 and 680,330 shares designated as
Series E-1 Preferred Stock, Series E-2 Preferred Stock, Series E-3 Preferred
Stock and Series E-4 Preferred Stock, respectively (collectively, the "Series E
Stock"), of which 1,250,000 and 700,000 shares of Series E-1 Preferred Stock and
Series E-2 Preferred Stock, respectively, were issued and outstanding. The
rights, preferences and privileges of the Series E Stock are as stated in the
Company's Amended and Restated Articles of Incorporation (the "Restated
Articles") and as provided by law.
(b) Common Stock. A total of 25,000,000 authorized
shares of Common Stock, no par value per share (the "Common Stock"), of which
shares will be issued and outstanding.
(c) Options, Warrants, Reserved Shares. Except for:
(i) the conversion privileges of the Series E Stock, (ii) the ________ shares of
Common Stock issuable upon exercise of options outstanding as of _________,
1997, (iii) 297,500 shares of Common Stock reserved for issuance under the
Company's 1996 Directors Stock Option Plan and 1996 Employee Stock Purchase
Plan, (iv) ________ shares of Common Stock reserved for future grants or sale
under the Company's 1996 Equity Incentive Plan, (v) 680,330 shares of Series E-4
Preferred Stock issuable to America Online, Inc. upon exercise of an exchange
right, (vi) warrants to purchase an aggregate of 650,000 shares of Series E-3
Preferred Stock and 9,451 shares of Common Stock, there are not outstanding any
options, warrants, rights (including conversion or preemptive rights) or
agreements for the purchase or acquisition from the Company of any shares of its
capital stock or any securities convertible into or ultimately exchangeable or
exercisable for any shares of the Company's capital stock.
3.3 Subsidiaries. Other then The XxXxxxxx Group, Inc., a
Delaware corporation, and Excite U.K. Limited, a United Kingdom corporation (the
"Subsidiaries"), the Company does not presently own or control, directly or
indirectly, any interest in any other corporation, partnership, trust, joint
venture, association, or other entity.
3.4 Due Authorization; No Violation. All corporate action on the
part of the Company and its officers, directors and shareholders necessary for
the authorization, execution and delivery of, and the performance of all
obligations of the Company under, this Agreement, and the authorization,
issuance, reservation for issuance and delivery of all of the Purchased Shares
being sold under this Agreement, has been taken or will be taken prior to the
Closing, and this Agreement constitutes a valid and legally binding obligation
of the Company, enforceable in accordance with its terms, except as may be
limited by (i) applicable bankruptcy, insolvency, reorganization or others laws
of general application relating to or affecting the enforcement of creditors'
rights generally and (ii) the effect of rules of law governing the availability
of equitable remedies. Neither the execution, delivery or performance by the
Company of this Agreement nor the consummation by the Company of the
transactions contemplated hereby will (i) conflict with or result in a breach of
any provision of the Restated Articles or the Company's Bylaws, (ii) cause a
default (or give rise to any right of termination, cancellation or acceleration)
under any of the terms, conditions or provisions of any agreement, instrument or
obligation to which the Company is a party, or (iii) violate any law, statute,
rule or regulation or judgment, order, writ, injunction
2
3
or decree of any governmental authority, in each case applicable to the Company
or its properties or assets.
3.5 Valid Issuance of Stock. The Purchased Shares, when issued,
sold and delivered in accordance with the terms of this Agreement for the
consideration provided for herein, will be duly and validly issued, fully paid
and nonassessable.
3.6 Registration Statement.
(a) A registration statement on Form S-1 (File No.
333-22669) with respect to the Purchased Shares (the "Registration Statement"),
including a prospectus (the "Prospectus") subject to completion, has been
prepared by the Company in conformity with the requirements of the Securities
Act of 1933, as amended (the "Act"), and the applicable rules and regulations
(the "Rules and Regulations") of the Securities and Exchange Commission (the
"Commission") under the Act and has been filed with the Commission;
(b) No order preventing or suspending the use of the
Registration Statement has been issued. The Registration Statement does not
include any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading at the time the Registration
Statement becomes effective and at all times subsequent thereto up to and on the
Closing; provided, however, that none of the representations and warranties
contained in this subparagraph (b) shall apply to information contained in or
omitted from the Registration Statement or Prospectus, or any amendment or
supplement thereto, in reliance upon, and in conformity with, written
information relating to the Investor furnished to the Company by the Investor
specifically for use in the preparation thereof. The Registration Statement and
the Prospectus, and any amendments or supplements thereto, have contained and
will continue to contain all material information required to be included
therein by the Act and the Rules and Regulations and will in all material
respects conform to the requirements of the Act and the Rules and Regulations.
3.7 Governmental Consents. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state or local governmental authority on the part of
the Company is required in connection with the consummation of the transactions
contemplated by this Agreement, except for qualifications or filings under the
Act and the Rules and Regulations and all other applicable securities laws as
may be required in connection with the transactions contemplated by this
Agreement. All such qualifications will be effective on the Closing, and all
such filings be made within the time prescribed by law.
3.8 Absence of Changes. Subsequent to the respective dates as of
which information is given in the Registration Statement and Prospectus, there
has not been (i) any material adverse change in the condition (financial or
otherwise), earnings, operations, business or business prospects of the Company
and its Subsidiaries taken as a whole, (ii) any transaction that is material to
3
4
the Company and its Subsidiaries taken as a whole, except transactions entered
into in the ordinary course of business, (iii) any obligation, direct or
contingent, that is material to the Company and its Subsidiaries taken as a
whole incurred by the Company, except obligations incurred in the ordinary
course of business, (iv) any change in the capital stock or outstanding
indebtedness of the Company that is material to the Company and its Subsidiaries
taken as a whole, (v) any dividend or distribution of any kind declared, paid or
made on the capital stock of the Company, or (vi) any loss or damage (whether or
not insured) to the property of the Company which has been sustained or will
have been sustained which has a material adverse effect on the condition
(financial or otherwise), earnings, operations, business or business prospects
of the Company and its Subsidiaries taken as a whole.
3.9 Litigation. There is no action, suit, proceeding, claim,
arbitration or investigation ("Action") pending (or, to the best of the
Company's knowledge, currently threatened) against the Company, its activities,
properties or assets or, to the best of the Company's knowledge, against any
officer, director or employee of the Company in connection with such officer's,
director's or employee's relationship with, or actions taken on behalf of, the
Company which (i) might prevent the consummation of the transactions
contemplated hereby or (ii) is required to be disclosed in the Registration
Statement or Prospectus and is not so disclosed.
3.10 Agreements. There are no agreements, contracts, leases or
documents of the Company of a character required to be described or referred to
in the Registration Statement or Prospectus or to be filed as an exhibit to the
Registration Statement by the Act or the Rules and Regulations which have not
been accurately described in all material respects in the Registration Statement
or Prospectus or filed as exhibits to the Registration Statement.
3.11 Nasdaq Listing. The Common Stock is registered pursuant to
Section 12(g) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and is listed on the Nasdaq National Market. The Company has taken no
action designed to cause, or likely to result in, the termination of the
registration of the Common Stock under the Exchange Act or the delisting of the
Common Stock from the Nasdaq National Market, nor has the Company received any
notification that the Commission or the National Association of Securities
Dealers, Inc. is contemplating the termination of such registration or listing.
3.12 Exchange Act Filings. The Company has filed in a timely
manner all reports and other information required to be filed with the
Commission pursuant to the Exchange Act during the twelve calendar months and
any portion of a month immediately preceding the filing of the Registration
Statement.
3.13 Xxxx-Xxxxx-Xxxxxx Act. The Company shall, if required under
the HSR Act (as defined below), promptly file any Notification and Report Forms
and related material that it may be required to file with the Federal Trade
Commission and the Antitrust Division of the United States Department of Justice
under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 0000 (xxx "XXX Xxx"),
shall use its best efforts to obtain an early termination of the applicable
waiting period, and shall make any further filings or information submissions
pursuant thereto that may be necessary, proper or advisable.
4. REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF INVESTOR.
Investor hereby represents and warrants to, and agrees with, the Company, that:
4
5
4.1 Authorization. All ___________ action on the part of
Investor and its ____________________ necessary for the authorization, execution
and delivery of, and the performance of all obligations of Investor under, this
Agreement has been taken or will be taken prior to the Closing, and this
Agreement constitutes a valid and legally binding obligation of Investor,
enforceable in accordance with its terms, except as may be limited by (i)
applicable bankruptcy, insolvency, reorganization or others laws of general
application relating to or affecting the enforcement of creditors' rights
generally and (ii) the effect of rules of law governing the availability of
equitable remedies.
4.2 Purchase for Own Account. The Purchased Shares to be
purchased by Investor hereunder will be acquired for investment for Investor's
own account, not as a nominee or agent, and not with a view to the public resale
or distribution thereof within the meaning of the Act, and Investor has no
present intention of selling, granting any participation in, or otherwise
distributing the same.
4.3 Disclosure of Information. Investor has received a copy of
the Registration Statement and has received or has had full access to all the
information it considers necessary or appropriate to make an informed investment
decision with respect to the Purchased Shares to be purchased by Investor under
this Agreement. Investor further has had an opportunity to ask questions and
receive answers from the Company regarding the terms and conditions of the
offering of the Purchased Shares and to obtain additional information (to the
extent the Company possessed such information or could acquire it without
unreasonable effort or expense) necessary to verify any information furnished to
Investor or to which Investor had access. The foregoing, however, does not in
any way limit or modify the representations and warranties made by the Company
in Section 3.
4.4 Xxxx-Xxxxx-Xxxxxx Act. Investor shall, if required under the
HSR Act, promptly file any Notification and Report Forms and related material
that it may be required to file with the Federal Trade Commission and the
Antitrust Division of the United States Department of Justice under the HSR Act,
shall use its best efforts to obtain an early termination of the applicable
waiting period, and shall make any further filings or information submissions
pursuant thereto that may be necessary, proper or advisable.
5. CONDITIONS TO INVESTOR'S OBLIGATIONS AT CLOSING. The obligations of
Investor under Section 2 of this Agreement are subject to the fulfillment or
waiver, on or before the Closing, of each of the following conditions.
5.1 Representations and Warranties True. Each of the
representations and warranties of the Company contained in Section 3 shall be
true and correct on and as of the Closing with the same effect as though such
representations and warranties had been made on and as of the date of the
Closing.
5.2 Performance. The Company shall have performed and complied
with all agreements, obligations and conditions contained in this Agreement that
are required to be performed or complied with by it on or before the Closing and
shall have obtained all approvals, consents and qualifications necessary to
complete the purchase and sale described herein.
5
6
5.3 Compliance Certificate. The Company shall have delivered to
Investor at the Closing a certificate signed on its behalf by its President,
Chief Executive Officer, or Chief Financial Officer certifying that the
conditions specified in Sections 5.1 and 5.2 have been fulfilled and stating
that there shall have been no material adverse change in the business, affairs,
prospects, operations, properties, assets or condition of the Company not
previously disclosed to Investor in writing.
5.4 Registration; Securities Exemptions. The offer and sale of
the Purchased Shares to Investor pursuant to this Agreement shall be registered
under the 1933 Act and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or are pending or threatened, and shall be
exempt from the qualification requirements of the California Corporate
Securities Law of 1968, as amended, and the rules thereunder (the "Law") and the
registration and/or qualification requirements of all other applicable state
securities laws.
5.5 Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the Closing and
all documents incident thereto shall be reasonably satisfactory in form and
substance to Investor and to Investor's special counsel, and they shall each
have received all such counterpart originals and certified or other copies of
such documents as they may reasonably request. Such documents shall include (but
not be limited to) the following:
(a) Certified Charter Documents. A copy of the
Restated Articles and the Bylaws of the Company (as amended through the date of
the Closing), certified by the Secretary of the Company as true and correct
copies thereof as of the Closing.
(b) Corporate Actions. A copy of the resolutions of
the Board of Directors evidencing the approval of this Agreement, the issuance
of the Purchased Shares and the other matters contemplated hereby.
5.6 No Material Change. There shall have been no material
adverse change in the business, affairs, prospects, operations, properties,
assets or condition of the Company.
5.7 Xxxx-Xxxxx-Xxxxxx Act. All applicable waiting periods (and
all extensions thereof) under the HSR Act shall have expired or otherwise been
terminated.
6. CONDITIONS TO THE COMPANY'S OBLIGATIONS AT CLOSING. The obligations
of the Company to Investor under this Agreement are subject to the fulfillment
or waiver on or before the Closing of each of the following conditions by
Investor:
6.1 Representations and Warranties. The representations and
warranties of Investor contained in Section 4 shall be true and correct on the
date of the Closing with the same effect as though such representations and
warranties had been made on and as of the Closing.
6.2 Payment of Purchase Price. Investor shall have delivered to
the Company the purchase price specified for Investor in Section 1 hereof in
accordance with the provisions of Section 2.
6
7
6.3 Registration; Securities Exemptions. The offer and sale of
the Purchased Shares to Investor pursuant to this Agreement shall be registered
under the 1933 Act and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or are pending or threatened, and shall be
exempt from the qualification requirements of the Law and the registration
and/or qualification requirements of all other applicable state securities laws.
6.4 Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the Closing and
all documents incident thereto shall be reasonably satisfactory in form and
substance to the Company and to the Company's legal counsel, and the Company
shall have received all such counterpart originals and certified or other copies
of such documents as it may reasonably request.
6.5 Xxxx-Xxxxx-Xxxxxx Act. All applicable waiting periods (and
all extensions thereof) under the HSR Act shall have expired or otherwise been
terminated.
7. MISCELLANEOUS.
7.1 Survival of Warranties. The representations, warranties and
covenants of the Company and Investor contained in or made pursuant to this
Agreement shall survive the execution and delivery of this Agreement and the
Closing and shall in no way be affected by any investigation of the subject
matter thereof made by or on behalf of Investor, its counsel or the Company, as
the case may be.
7.2 Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties.
7.3 Governing Law. This Agreement shall be governed by and
construed under the internal laws of the State of California as applied to
agreements among California residents entered into and to be performed entirely
within California, without reference to principles of conflict of laws or choice
of laws.
7.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7.5 Headings. The headings and captions used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement. All references in this Agreement to sections,
paragraphs, exhibits and schedules shall, unless otherwise provided, refer to
sections and paragraphs hereof and exhibits and schedules attached hereto, all
of which exhibits and schedules are incorporated herein by this reference.
7.6 Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
deposit with the United States Post Office, by registered or certified mail,
postage prepaid and addressed to the party to be notified in the case of the
Company, at 000 Xxxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000 with a copy to Xxxx X.
7
8
Xxxxxxx, Fenwick & West LLP, Two Palo Xxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000,
or in the case of Investor, at _________________________ with a copy to:
___________ or at such other address as any party may designate by giving ten
(10) days advance written notice to the other party.
7.7 No Finder's Fees. Each party represents that it neither is
nor will be obligated for any finder's or broker's fee or commission in
connection with this transaction. Investor agrees to indemnify and
to hold harmless the Company from any liability for any commission or
compensation in the nature of a finders' or broker's fee (and any asserted
liability) for which Investor or any of its officers, partners, employees, or
representatives is responsible. The Company agrees to indemnify and hold
harmless Investor from any liability for any commission or compensation in the
nature of a finder's or broker's fee (and any asserted liability) for which the
Company or any of its officers, employees or representatives is responsible.
7.8 Costs, Expenses. Each party shall pay its own costs in
connection with the preparation, execution and delivery of this Agreement.
7.9 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and Investor. Any
amendment or waiver effected in accordance with this Section shall be binding
upon each holder of any Purchased Shares at the time outstanding, each future
holder of such securities, and the Company.
7.10 Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision(s) shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision(s) were so excluded and shall be enforceable in
accordance with its terms.
7.11 Entire Agreement. This Agreement, together with any
exhibits or schedules hereto, constitutes the entire agreement and understanding
of the parties with respect to the subject matter hereof and supersedes any and
all prior negotiations, correspondence, agreements, understandings duties or
obligations between the parties with respect to the subject matter hereof.
7.12 Further Assurances. From and after the date of this
Agreement, upon the request of Investor or the Company, the Company and Investor
shall execute and deliver such instruments, documents or other writings as may
be reasonably necessary or desirable to confirm and carry out and to effectuate
fully the intent and purposes of this Agreement.
8
9
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
THE COMPANY: INVESTOR:
Excite, Inc.
a California corporation Name: _____________________________
By: ___________________________ By: _______________________________
Title: ________________________ Title: ____________________________
9
