1
EXHIBIT 4.12
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of June 11, 1997 by and between EXCITE, INC., a California corporation
(the "Company") and INTUIT INC., a Delaware corporation (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, an aggregate of 2,900,000 shares of Common Stock, at a price of $13.50
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 Xxxx Xxxx Xxxxxx,
Xxxxx 000, Xxxx Xxxx, Xxxxxxxxxx, at 10:00 a.m. Pacific Daylight Time, (i) with
respect to 1,000,000 of the Purchased Shares (the "Initial Shares") on June 25,
1997 or such later date following the satisfaction or waiver of all of the
conditions set forth in Sections 5.1 and 6.1 hereof 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 "First Closing"), and (ii) with respect to
the remaining Purchased Shares (the "Additional Shares") on or before two
business days following the satisfaction or waiver of all of the conditions set
forth in Sections 5.2 and 6.2 hereof 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 "Second Closing"). At the First Closing and the Second
Closing (as applicable), the Company will deliver to Investor a certificate
representing the number of Initial Shares or Additional Shares (as applicable)
that Investor has agreed to purchase hereunder at such closing 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:
2
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:
(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. The shares of Series E Stock are currently convertible into
Common Stock on a one-for-one basis.
(b) Common Stock. A total of 25,000,000 authorized shares of
Common Stock, no par value per share (the "Common Stock"), of which
approximately 12,370,633 shares were issued and outstanding as of May 31, 1997
(subject to increase only by employee stock option exercises subsequent to May
31, 1997). Subsequent to the Company's Annual Meeting of Shareholders on June
19, 1997, a total of 50,000,000 shares of Common Stock will be authorized.
(c) Options, Warrants, Reserved Shares. Except for: (i) the
conversion privileges of the Series E Stock, (ii) the approximately 3,750,626
shares of Common Stock issuable upon exercise of options outstanding as of May
31, 1997, including options granted subject to shareholder approval as the
Company's Annual Meeting of Shareholders to be held on June 19, 1997 (subject to
increase by grants of stock options subsequent to May 31, 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) approximately
2,965,957 shares of Common Stock reserved for future grants or sale as of May
31, 1997 under the Company's 1996 Equity Incentive Plan, including shares
reserved for future grant subject to shareholder approval at the Company's
Annual Meeting of Shareholders to be held on June 19, 1997 (subject to change
due to termination of stock options and grants of stock options subsequent to
May 31, 1997), (v) 680,330 shares of Series E-4 Preferred Stock issuable to
America Online, Inc. upon exercise of an exchange right, (vi) a warrant to
purchase an aggregate of 650,000 shares of Series E-3 Preferred Stock and
warrants to purchase 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.
2
3
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 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") which omits certain pricing information pursuant
to Rule 430A under the Securities Act of 1933, as amended (the "Act"), has been
prepared by the Company in conformity with the requirements of 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 and declared effective on June 6, 1997;
(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
3
4
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
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.
4
5
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.
The Purchased Shares have been approved for quotation on the Nasdaq National
Market, subject to notice of issuance.
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:
4.1 Authorization. All corporate action on the part of Investor and
its officers, directors and stockholders 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 current 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
5
6
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. The 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.
4.5 Standstill Obligation. Investor agrees that it will not, without
the approval of the Company's Board of Directors, 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 Investor and its
affiliates holding greater than 25% of the total Voting Securities. The
percentage limitation is referred to in this Section 4.5 as the "Standstill
Percentage." Notwithstanding the foregoing restriction:
(a) The Company shall promptly notify Investor in the event
that the Company enters into or intends to enter 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
Investor at least ten calendar days prior to entering into a binding
definitive agreement with respect to a Control Transaction, and will
further notify Investor after such discussions terminate. Investor's
obligation hereunder shall not be in effect for the duration of any
such discussions. The Investor acknowledges that such discussions may
constitute material inside information that will prevent open market
purchases or sales until a public announcement of such discussions.
(b) In the event of any person's or entity's acquisition of
Voting Securities from the Company or, from third parties or in the
open market, the Standstill Percentage will be increased to the
percentage of the Company's total Voting Securities held by such person
or entity immediately following such acquisition. The Company shall
promptly provide Investor with written notice of any such acquisition
of Voting Securities described in this paragraph (b).
(c) Investor's obligations under this Section 4.5 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 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
6
7
Securities. Upon becoming aware of such an intention by any third party
or group, the Company shall promptly provide Investor with written
notice of any such intention by any third party or group.
(d) Investor shall not be obligated to dispose of any Voting
Securities if the aggregate percentage of the Total Securities
beneficially owned by Investor is increased as a result of a
recapitalization, reclassification or other restructuring of the
Company or a repurchase of securities by the Company or any other
action taken by the Company.
In the event that Investor is permitted to acquire additional shares of
the Company's Voting Securities pursuant to the provisions of this Section 4.5
which results in Investor and its affiliates holding greater than 25% of the
total Voting Securities, the Standstill Percentage shall be increased to the
percentage of Voting Securities so held by Investor, provided, however, that the
Standstill Percentage shall immediately be reduced to 25% at such time as
Investor and its affiliates hold 25% or less of the total Voting Securities.
For purposes of this Section 4.5:
"Control Transaction" shall mean any merger, share exchange or
other acquisition (or series of related transactions of such nature) as
a result of which the holders of Voting Securities of the Company
immediately prior thereto continue to own beneficially Voting
Securities representing less than 50% of the Voting Securities of the
Company (or any successor entity) immediately thereafter.
"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 exercisable 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.
The covenants set forth in this Section 4.5 shall expire on or
the earlier to occur of (i) 42 months from the date of this Agreement and (ii)
the termination of the standstill obligations of America Online, Inc. originally
set forth in Section 9 of the Series D Preferred Stock Purchase Agreement dated
as of March 8, 1996 by and among the Company and the Investors listed therein
(and the Company shall provide prompt written notice to Investor of such
termination).
4.6 Resale Restrictions. Investor agrees that it will not,
without the prior written consent of the Company, for a period of eighteen (18)
months following the date of this Agreement, directly or indirectly offer, sell,
contract to sell or otherwise dispose of or otherwise transfer (a "Disposition")
the economic risk of ownership of the Purchased Shares, or any other securities
of the Company owned by it. Subsequent to such eighteen (18) month period and
until the date that is three (3) years from the date of this Agreement, Investor
will not, without the prior written consent of the Company, effect a Disposition
of any of the Purchased Shares or of any other securities of the Company owned
by it on any one trading day in an amount in excess
7
8
of five percent (5%) of the total trading volume for the five (5) consecutive
trading days ended on the date immediately prior to the date of such sale
(without taking into consideration any shares sold by Investor); provided,
however, that such restriction shall not apply to any sales of such shares in
(i) a private transaction not effected on the Nasdaq National Market or any
other stock exchange or automated quotation system, or (ii) an underwritten
public offering of such shares. The foregoing restrictions shall not apply
during any period of time that Investor's "standstill" obligations set forth in
Section 4.5 are not in effect as a result of (or would not be in effect if the
covenants contained in Section 4.5 had not terminated by operation of the last
sentence of such Section 4.5) the provisions of paragraphs (a) or (c) of such
Section 4.5.
5. CONDITIONS TO INVESTOR'S OBLIGATIONS AT CLOSING.
5.1 First Closing. The obligations of Investor under Section 2 of
this Agreement to purchase the Initial Shares at the First Closing are subject
to the fulfillment or waiver, on or before the Closing, of each of the following
conditions, and the Company shall use its best efforts to cause such conditions
to be satisfied on or before the First Closing:
5.1.1 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 First Closing with the same effect as though
such representations and warranties had been made on and as of the date of the
First Closing.
5.1.2 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 First
Closing and shall have obtained all approvals, consents and qualifications
necessary to complete the purchase and sale described herein.
5.1.3 Compliance Certificate. The Company shall have delivered
to Investor at the First Closing a certificate signed on its behalf by its
President, Chief Executive Officer, or Chief Financial Officer certifying that
the conditions specified in Sections 5.1.1 and 5.1.2 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.
5.1.4 Registration; Securities Exemptions. The offer and sale of
the Initial 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.
5.1.5 Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the First
Closing and all documents incident thereto shall be reasonably satisfactory in
form and substance to Investor and to Investor's special
8
9
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 First
Closing), certified by the Secretary of the Company as true and correct copies
thereof as of the First 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.
5.1.6 No Material Change. There shall have been no material
adverse change in the business, affairs, prospects, operations, properties,
assets or condition of the Company.
5.1.7 Xxxx-Xxxxx-Xxxxxx Act. All applicable waiting periods (and
all extensions thereof) under the HSR Act shall have expired or otherwise been
terminated.
5.1.8 Letter Agreement. Either (i) the Company shall have
executed and delivered a definitive agreement (the "Definitive Agreement")
incorporating the terms of the Binding Letter Agreement dated June 11, 1997
between the Company and Investor (the "Letter Agreement") in the form attached
hereto as Exhibit A or if the Definitive Agreement has not been so executed and
delivered, the Company and Investor shall continue to be negotiating the
Definitive Agreement in good faith.
5.1.9 Nasdaq Listing. The Initial Shares shall have been
approved for quotation on the Nasdaq National Market, subject to notice of
issuance.
5.1.10 Final Prospectus, Prospectus Supplement, Etc. The Company
shall have delivered to Investor a final prospectus which contains the pricing
and other terms omitted from the Registration Statement on the date the
Registration Statement became effective. Any required prospectus supplement
shall have been filed, or any required Post-Effective Amendment to the
Registration Statement shall have been filed and declared effective, with the
Securities and Exchange Commission.
5.2 SECOND CLOSING. The obligations of Investor under Section 2 of
this Agreement to purchase the Additional Shares at the Second Closing are
subject to the fulfillment or waiver, on or before the Closing, of each of the
following conditions, and the Company shall use its best efforts to cause such
conditions to be satisfied on or before the Second Closing:
5.2.1 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 Second Closing with the same effect as though
such representations and warranties had been made on and as of the date of the
Second Closing.
9
10
5.2.2 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 Second
Closing and shall have obtained all approvals, consents and qualifications
necessary to complete the purchase and sale described herein.
5.2.3 Compliance Certificate. The Company shall have delivered
to Investor at the Second Closing a certificate signed on its behalf by its
President, Chief Executive Officer, or Chief Financial Officer certifying that
the conditions specified in Sections 5.2.1 and 5.2.2 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.
5.2.4 Registration; Securities Exemptions. The offer and sale of
the Additional 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.
5.2.5 Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the Second
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
Second Closing), certified by the Secretary of the Company as true and correct
copies thereof as of the Second 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.
In the event that the documents listed in Sections 5.2.5(a)
and 5.2.5(b) above have not been amended since the date of the First Closing,
the Company may, in lieu of providing such documents, deliver a certificate
signed by its Secretary to the effect that such documents have not been amended
or rescinded subsequent to the date of the First Closing and that such documents
remain in full force and effect.
5.2.6 No Material Change. There shall have been no material
adverse change in the business, affairs, prospects, operations, properties,
assets or condition of the Company.
10
11
5.2.7 Nomination and Observer Agreement. The Company shall have
executed and delivered a letter agreement in the form attached hereto as Exhibit
B (the "Nomination and Observer Agreement").
5.2.8 Registration Rights Agreement. The Company shall have
executed and delivered the Registration Rights Agreement in the form attached
hereto as Exhibit C (the "Registration Rights Agreement").
5.2.9 Right of First Refusal Agreement. The Company shall have
executed and delivered the Right of First Refusal Agreement in the form attached
hereto as Exhibit D (the "Right of First Refusal Agreement").
5.2.10 Nasdaq Listing. The Additional Shares shall have been
approved for quotation on the Nasdaq National Market, subject to notice of
issuance.
5.2.11 Final Prospectus, Prospectus Supplement, Etc. The Company
shall have delivered to Investor a final prospectus which contains the pricing
and other terms omitted from the Registration Statement on the date the
Registration Statement became effective. Any required prospectus supplement
shall have been filed, or any required Post-Effective Amendment to the
Registration Statement shall have been filed and declared effective, with the
Securities and Exchange Commission.
5.2.12 Amendment to Investors' Rights Agreement. The Amendment
to Restated and Amended Investors' Rights Agreement in the form attached hereto
as Exhibit E (the "Amendment") shall have been executed and delivered by the
Company and the holders of at least a majority of the Registrable Securities (as
defined in the Restated and Amended Investors' Rights Agreement dated as of
March 8, 1996, by and among the Company and the Investors named therein, as
amended through November 25, 1996).
5.2.13 Definitive Agreement. The Company shall have executed and
delivered the Definitive Agreement, or substantive content owned by Investor has
been available on the Excite network with the consent of Investor for sixty (60)
days; provided, however, that in the event that the Company shall not have
executed and delivered the Definitive Agreement, the parties shall continue to
by bound by the Letter Agreement.
6. CONDITIONS TO THE COMPANY'S OBLIGATIONS AT CLOSING.
6.1. First Closing. The obligations of the Company under this
Agreement to sell the Initial Shares to Investor at the First Closing are
subject to the fulfillment or waiver on or before the First Closing of each of
the following conditions by Investor, and Investor shall use its best efforts to
cause such conditions to be satisfied on or before the First Closing:
6.1.1 Representations and Warranties. The representations and
warranties of Investor contained in Section 4 shall be true and correct on the
date of the First Closing with the same effect as though such representations
and warranties had been made on and as of the First Closing.
11
12
6.1.2 Payment of Purchase Price. Investor shall have delivered
to the Company the purchase price for the Initial Shares specified for Investor
in Section 1 hereof in accordance with the provisions of Section 2.
6.1.3 Registration; Securities Exemptions. The offer and sale of
the Initial 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.
6.1.4 Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the First
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.
6.1.5 Xxxx-Xxxxx-Xxxxxx Act. All applicable waiting periods (and
all extensions thereof) under the HSR Act shall have expired or otherwise been
terminated.
6.1.6 Letter Agreement. Either (i) the Investor shall have
executed and delivered the Definitive Agreement or (ii) if the Definitive
Agreement has not been so executed and delivered, the Company and Investor shall
continue to be negotiating the Definitive Agreement in good faith.
6.1.7 Nasdaq Listing. The Initial Shares shall have been
approved for quotation on the Nasdaq National Market, subject to notice of
issuance.
6.1.8 Final Prospectus, Prospectus Supplement, Etc. The Company
shall have delivered to Investor a final prospectus which contains the pricing
and other terms omitted from the Registration Statement on the date the
Registration Statement became effective. Any required prospectus supplement
shall have been filed, or any required Post-Effective Amendment to the
Registration Statement shall have been filed and declared effective, with the
Securities and Exchange Commission.
6.2 Second Closing. The obligations of the Company under this
Agreement to sell the Additional Shares to Investor at the Second Closing are
subject to the fulfillment or waiver on or before the Second Closing of each of
the following conditions by Investor, and Investor shall use its best efforts to
cause such conditions to be satisfied on or before the Second Closing:
6.2.1 Representations and Warranties. The representations and
warranties of Investor contained in Section 4 shall be true and correct on the
date of the Second Closing with the same effect as though such representations
and warranties had been made on and as of the Second Closing.
12
13
6.2.2 Payment of Purchase Price. Investor shall have delivered
to the Company the purchase price for the Additional Shares specified for
Investor in Section 1 hereof in accordance with the provisions of Section 2.
6.2.3 Registration; Securities Exemptions. The offer and sale of
the Additional 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.
6.2.4 Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated at the Second
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.
6.2.5 Nomination and Observer Agreement. The Investor shall have
executed and delivered the Nomination and Observer Agreement.
6.2.6 Registration Rights Agreement. The Investor shall have
executed and delivered the Registration Rights Agreement.
6.2.7 Right of First Refusal Agreement. The Investor shall have
executed and delivered the Right of First Refusal Agreement.
6.2.8 Nasdaq Listing. The Additional Shares shall have been
approved for quotation on the Nasdaq National Market, subject to notice of
issuance.
6.2.9 Final Prospectus, Prospectus Supplement, Etc. The Company
shall have delivered to Investor a final prospectus which contains the pricing
and other terms omitted from the Registration Statement on the date the
Registration Statement became effective. Any required prospectus supplement
shall have been filed, or any required Post-Effective Amendment to the
Registration Statement shall have been filed and declared effective, with the
Securities and Exchange Commission.
6.2.10 Amendment to Investors' Rights Agreement. The Investor
shall have executed and delivered the Amendment.
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
First Closing and Second 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.
13
14
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, attention: General
Counsel, with a copy to Xxxx X. Xxxxxxx, Fenwick & West LLP, Two Palo Xxxx
Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000, or in the case of Investor, at 0000
Xxxxxxxxxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000, attention: Treasurer, with a copy
to: General Counsel, 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, other than the anticipated reimbursement by the Company
of up to $200,000.00 in expenses incurred by Xxxxxxxxx, Xxxxxxxx & Company LLC
and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated. 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. All costs in connection with the preparation,
execution delivery and performance of this Agreement (including Investor's
costs, which include, without limitation, reasonable attorney fees but other
than any required filing fees under the HSR Act (the cost of which HSR Act
filing fees shall be shared equally between the Company and Investor) shall be
borne by the Company from the proceeds from the Purchased Shares.
14
15
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.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
15
16
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
THE COMPANY: INVESTOR:
------------ ---------
Excite, Inc. Intuit Inc.
a California corporation a Delaware corporation
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxxxxx Xxxxxx
------------------------------- -------------------------------------
Title: Executive VP, CAO/CFO Title: Exec. VP
---------------------------- ----------------------------------
[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]
16
