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Exhibit 4.06
VOTING AGREEMENT
This Voting Agreement (this "Agreement") is made and entered into as of
November 25, 1996, by and among Excite, Inc., a California corporation
("Excite"), America Online, Inc., a Delaware corporation ("AOL"), and the
parties other than Excite and AOL whose signatures are affixed hereto (the
"Shareholders"). AOL and the Shareholders are sometimes collectively referred
to herein as the "Holders."
A. AOL has entered into an Acquisition Agreement (the
"Acquisition Agreement") and an Operating Agreement with Excite, each dated as
of November 25, 1996, pursuant to which Excite will issue to AOL an aggregate
of 1,950,000 shares of Excite Series E Preferred Stock. In addition, AOL holds
680,330 shares of Excite Common Stock and a warrant to purchase 650,000 shares
of Excite Common Stock.
B. It is a condition to the closing of the Acquisition Agreement
that Excite make such arrangements as are necessary to ensure that AOL will
have the right to have an AOL representative elected to the Board of Directors
of Excite for so long as AOL holds at least 1,315,165 shares of Excite stock on
an as converted to Common Stock basis.
C. AOL, the Shareholders and Excite desire to enter into this
Agreement to set forth their agreements and understandings with respect to how
shares of Excite's Common and Preferred Stock ("Capital Stock") held by them
will be voted with respect to the election of an AOL representative to the
Excite Board of Directors.
NOW THEREFORE, in consideration of the above recitals and the mutual
covenants made herein, the parties hereby agree as follows:
1. ELECTION OF BOARD OF DIRECTORS.
1.1 VOTING; AOL REPRESENTATION. During the term of this
Agreement, each Holder agrees to vote all shares of Capital Stock of Excite now
or hereafter directly or indirectly owned (of record or beneficially) by such
Holder, in such manner as may be necessary to elect (and maintain in office),
as a member of Excite's Board of Directors, one individual designated by AOL
from time to time in a writing delivered to Excite and signed by AOL. For
purposes of this Agreement, any individual who is designated for election to
Excite's Board of Directors pursuant to this Section 1.1 is hereinafter
referred to as the "AOL Board Designee."
1.2 CHANGES IN AOL BOARD DESIGNEES. From time to time
during the term of this Agreement, AOL may, in its sole discretion:
(a) elect to remove from Excite's Board of Directors the
incumbent AOL Board Designee who occupies a Board seat for which AOL
is entitled to designate the AOL Board Designee under Section 1.1;
and/or
(b) designate a new AOL Board Designee for election to a
Board seat for which AOL is entitled to designate the AOL Board
Designee under Section 1.1 (whether to replace a prior AOL Board
Designee or to fill a vacancy in such Board seat).
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In the event of such a removal and/or designation of an AOL Board Designee under
this Section 1.2, the Holders shall vote their shares of Excite's Capital Stock
as provided in Section 1.1 to cause: (a) the removal from Excite's Board of
Directors of the AOL Board Designee so designated for removal by AOL; and (b)
the election to Excite's Board of Directors of any new AOL Board Designee so
designated for election to Excite's Board of Directors by AOL.
1.3 NOTICE. Excite shall promptly give each of the Holders written
notice of any proposal by AOL to remove or elect a new AOL Board Designee. In
any election of directors pursuant to this Section 1, the Holders shall vote
their shares in a manner sufficient to elect to Excite's Board of Directors the
individuals to be elected thereto as provided in this Section 1.
2. FURTHER ASSURANCES. Each of the Holders and Excite agree not to vote
any shares of Capital Stock, or to take any other actions, that would in any
manner defeat, impair, or adversely affect the stated intentions of the parties
under Section 1 of this Agreement.
3. ENFORCEMENT OF AGREEMENT. Each of the Shareholders acknowledges and
agrees that any breach by any of him, her or it of this Agreement shall cause
AOL irreparable harm which may not be adequately compensable by money damages.
Accordingly, in the event of a breach or threatened breach by a Shareholder of
any provision of this Agreement, Excite and AOL shall each be entitled to the
remedies of specific performance, injunction or other preliminary or equitable
relief, including the right to compel any such breaching Shareholder, as
appropriate, to vote such Shareholder's shares of Capital Stock of Excite in
accordance with the provisions of this Agreement, in addition to such other
rights remedies as may be available to Excite or AOL for any such breach or
threatened breach, including but not limited to the recovery of money damages.
4. TERM. This Agreement shall commence as of the Closing (as such
term is defined in Section 1.4 of the Acquisition Agreement) and shall
terminate upon the first to occur of the following:
(a) Such time as AOL or its wholly-owned subsidiaries hold less than
1,315,165 shares of Excite stock on an as converted to Common Stock basis
(as adjusted for stock splits or similar events);
(b) The delivery by AOL of a written notice to Excite to
terminate this Agreement;
(c) Immediately prior to the closing of any of the following: (i)
any consolidation or merger of Excite with or into any other corporation
or corporations in which the holders of Excite's outstanding shares
immediately before such consolidation or merger do not, immediately after
such consolidation or merger, retain stock representing a majority of the
voting power of the surviving corporation of such consolidation or merger
or stock representing a majority of the voting power of a corporation that
wholly owns, directly or indirectly, the surviving corporation of such
consolidation or merger; (ii) the sale, transfer or assignment of
securities of Excite representing a majority of the voting power of all
Excite's outstanding voting securities by the holders thereof to an
acquiring party in a single transaction or series of related transactions;
(iii) any other sale, transfer or assignment of securities of Excite
representing over fifty percent (50%) of the voting power of Excite's then
outstanding
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voting securities by the holders thereof to an acquiring party; or (iv)
the sale of all or substantially all Excite's assets.
5. GENERAL PROVISIONS.
5.1 ENTIRE AGREEMENT; CAPTIONS. This Agreement and the agreements to
be executed and delivered in connection with the Acquisition Agreement, together
constitute the entire agreement and understanding between the parties and there
are no agreements or commitments with respect to the transactions contemplated
herein except as set forth in this Agreement and the Acquisition Agreement. This
Agreement and the Acquisition Agreement supersede any prior offer, agreement or
understanding between the parties with respect to the transactions contemplated
hereby. The captions in this Agreement are for convenience only and shall not be
considered a part of or affect the construction or interpretation of any
provision of this Agreement.
5.2 NOTICES. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be personally or sent by certified or
registered United States mail, postage prepaid, or sent by nationally recognized
overnight express courier and addressed as follows:
(a) if to Excite, at:
Excite, Inc.
0000 X. Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Attention: President
Facsimile: 415/943-2888
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
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5.3 AMENDMENT; WAIVER. Any term or provision of this Agreement may
be amended only by a writing signed by AOL, Excite and a majority of the
Shareholders, provided however, that any Shareholder who does not agree to such
amendment shall not be bound by such amendment but will be otherwise bound to
the terms of this Agreement that are not in conflict with such amendment. The
observance of any term or provision of this Agreement may be waived (either
generally or in a particular instance and either retroactively or prospectively)
only by a writing signed by the party to be bound by such waiver. No waiver by a
party of any breach of this Agreement will be deemed to constitute a waiver of
any other breach or any succeeding breach.
5.4 NO THIRD PARTY BENEFICIARIES. Nothing expressed or implied in
this Agreement is intended, or shall be construed, to confer upon or to give any
person, firm or corporation, other than the parties hereto, any rights or
remedies under or by reason of this Agreement.
5.5 EXECUTION IN COUNTERPARTS. For the convenience of the parties,
this Agreement may be executed in one or more counterparts, each of which shall
be deemed an original but all of which together shall constitute one and the
same instrument.
5.6 ASSIGNMENT. These rights and obligations of the parties to this
Agreement may not be delegated or assigned by any party hereto without the prior
written consent of the other party and any such attempted delegation or
assignment shall be void.
5.7 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of California (excluding
application of any choice of law doctrines that would make applicable the law of
any other state or jurisdiction) and, where appropriate, applicable federal law.
5.8 SEVERABILITY. If any provision of this Agreement is for any
reason and to any extent deemed to be invalid or unenforceable, then such
provision shall not be voided but rather shall be enforced to the maximum extent
then permissible under then applicable law and so as to reasonably effect the
intent of the parties hereto, and the remainder of this Agreement will remain in
full force and effect.
5.9 ATTORNEYS' FEES. Should a suit or arbitration be brought to
enforce or interpret any provision of this Agreement, the prevailing party shall
be entitled to recover reasonable attorneys' fees to be fixed in amount by the
Court or the Arbitrator(s) (including without limitation costs, expenses and
fees on any appeal). The prevailing party will be entitled to recover its costs
of suit or arbitration, as applicable, regardless of whether such suit or
arbitration proceeds to a final judgment or award.
5.10 SECTIONS AND EXHIBITS. Except as otherwise indicated, all
references in this Agreement to "Section (s)" and "Exhibit(s)" are intended to
refer to Section (s) to this Agreement and Exhibit(s) to this Agreement,
respectively.
5.11 DISPUTE RESOLUTION. All disputes arising under this Agreement
between AOL and Excite shall be resolved pursuant to the dispute resolution
procedures set forth in the Commercial Agreement.
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5.12 CONSTRUCTION OF AGREEMENT. This Agreement has been negotiated
by the respective parties hereto and their attorneys and the language hereof
will not be construed for or against either party.
[THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date and
year first above written.
EXCITE, INC.: AMERICA ONLINE, INC.:
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By: /s/Xxxxxxx Xxxxxxx By: /s/ Miles Gilburn
-------------------------------- ----------------------------------
Name: Xxxxxxx Xxxxxxx Name: Miles Gilburn
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Title: Vice President, Title: Senior VP, Corporate
Development
Finance and Administration --------------------------------
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SHAREHOLDERS:
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INSTITUTIONAL VENTURE PARTNERS IVP FOUNDERS FUND I, L.P.
VI, L.P.
By Its General Partner By Its General Partner
Institutional Venture Management Institutional Venture Management
VI, L.P. VI, L.P.
By /s/ Xxxxxxxx X. Xxxx By /s/ Xxxxxxxx X. Xxxx
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Xxxxxxxx X. Xxxx, Xxxxxxxx X. Xxxx,
General Partner General Partner
INSTITUTIONAL VENTURE XXXXXXX XXXXXXX XXXXXXXX & XXXXX VIII
MANAGEMENT VI, L.P.
By /s/ Xxxxxxxx X. Xxxx By /s/ Xxxxx Xxxxxx
----------------------------- -------------------------------------
Xxxxxxxx X. Xxxx, Xxxxx Xxxxxx, General Partner
General Partner
KPCB VII FOUNDERS FUND KPCB INFORMATION SCIENCES ZAIBATSU
FUND II
By /s/ Xxxxx Xxxxxx By /s/ Xxxxx Xxxxxx
----------------------------- ----------------------------------
Xxxxx Xxxxxx, General Partner Xxxxx Xxxxxx, General Partner
ITOCHU TECHNOLOGY, INC. ITOCHU CORPORATION
By /s/Sigeki Nishiyamo By /s/Xxxx Xxxxxxxxx
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Name Sigeki Nishiyamo Name Xxxx Xxxxxxxxx
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Title Executive Vice President Title General Manager, Information
-------------------------- Technology and Information
Department
----------------------------
(SIGNATURES CONTINUED ON NEXT PAGE)
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TRIBUNE COMPANY AOL VENTURES, INC.
By /s/ Xxxxx Xxxxxx By /s/ Miles Gilburn
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Name Xxxxx Xxxxxx Name Miles Gilburn
---------------------------- -------------------------------
Title Senior VP Title Senior VP, Corporate
----------------------------- Devleopment
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/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxx Xxxxxx
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Xxxxxx X. Xxxxxxx Xxxxx Xxxxxx
/s/ Xxxxxx X. Xxxxx, XX /s/ Xxxxxx X. Xxxxxxx
---------------------------------- ------------------------------------
Xxxxxx X. Xxxxx, XX Xxxxxx X. Xxxxxxx
/s/ Xxxxx Xxxxxxxxxx /s/ Xxxxx Xxxxxx
---------------------------------- ------------------------------------
Xxxxx Xxxxxxxxxx Xxxxx Xxxxxx
/s/ Xxxx XxXxxxxx /s/ Xxxxx Xxxxx
---------------------------------- ------------------------------------
Xxxx XxXxxxxx Xxxxx Xxxxx
IDG HOLDINGS, INC.
/s/ Xxxxxx Xxxxxxx By
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Xxxxxx Xxxxxxxx
Name ________________________________
Title _______________________________
XXXXXXX RIVER PARTNERSHIP VII CUC INTERNATIONAL INC.
By /s/ Xxxxxxx X. Xxxxx Xx. By
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Name Xxxxxxx X. Xxxxx Xx. Name
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Title General Partner
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(SIGNATURE PAGE TO EXCITE/AOL VOTING AGREEMENT)
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ROSEWOOD STONE GROUP, INC.
By /s/ Xxxxxxx Xxxxxx
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Name Xxxxxxx Xxxxxx
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Title President
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(SIGNATURE PAGE TO EXCITE/AOL VOTING AGREEMENT)
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