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EXHIBIT 2.1
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (the "AGREEMENT") is entered
into as of this fifteenth day of January, 1998, by and among Excite, Inc., a
California corporation ("EXCITE"), XCite Acquisition Corporation, a Delaware
corporation and a wholly owned subsidiary of Excite ("MERGER SUB"), Matchlogic,
Inc., a Delaware corporation ("MATCHLOGIC"), and, with respect to Sections 1.6,
2, 4.4, 4.10 and 10 only, TL Ventures III, L.P, TL Ventures III Offshore, TL
Ventures III Interfund L.P., Sequel Limited Partnership, Sequel Euro Limited
Partnership, Internet Capital Group, L.L.C. and Data Strategies, Inc.
(collectively, the "PRINCIPAL STOCKHOLDERS") and with respect to Sections 1.3
and 7.8 only, Xxxx Xxxxxxxx.
RECITALS
A. The parties intend that, subject to the terms and conditions
hereinafter set forth, Merger Sub will merge with and into Matchlogic in a
reverse triangular merger (the "MERGER"), with Matchlogic to be the surviving
corporation of the Merger, pursuant to the terms and conditions of this
Agreement and a Certificate of Merger substantially in the form of Exhibit A
attached hereto (the "CERTIFICATE OF MERGER") and the applicable provisions of
the law of the State of Delaware. Upon the effectiveness of the Merger, all of
the outstanding Common Stock and Preferred Stock of Matchlogic will be
converted into Common Stock of Excite ("EXCITE COMMON STOCK"). In addition,
all outstanding options ("MATCHLOGIC OPTIONS") and warrants ("MATCHLOGIC
WARRANTS") to purchase shares of the Common Stock and Preferred Stock of
Matchlogic will be converted into options and warrants, respectively, to
purchase Excite Common Stock, all as provided in this Agreement and the
Certificate of Merger. The options and warrants exercisable for Excite Common
Stock issued in the Merger shall be referred to herein as the "EXCITE
SECURITIES."
B. The Merger is intended to be treated as a tax-free
reorganization pursuant to the provisions of Section 368(a)(1)(A) of the
Internal Revenue Code of 1986, as amended (the "CODE"), by virtue of the
provisions of Section 368(a)(2)(E) of the Code and as a "pooling of interests"
for accounting purposes.
NOW, THEREFORE, the parties intending to be bound hereby agree as
follows:
1. PLAN OF REORGANIZATION
1.1 The Merger. A Certificate of Merger will be filed with the
office of the Secretary of State of Delaware as soon as practicable after the
Closing Date (as defined in Section 6.1 hereof). The effective date and time
of such filing is referred to herein as the "EFFECTIVE TIME". At the Effective
Time, Merger Sub will be merged with and into Matchlogic pursuant to this
Agreement and the Certificate of Merger and in accordance with applicable
provisions of the law of the State of Delaware as follows:
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1.1.1 Conversion of Shares. Each share of Matchlogic
Common Stock (the "MATCHLOGIC COMMON STOCK") and each share of Matchlogic
Series A Preferred Stock (the "MATCHLOGIC SERIES A PREFERRED STOCK")
(collectively, the "MATCHLOGIC CAPITAL STOCK") issued and outstanding
immediately prior to the Effective Time, other than shares, if any, for which
dissenters rights have been or will be perfected in compliance with applicable
law, will by virtue of the Merger and at the Effective Time, and without
further action on the part of any holder thereof (the "MATCHLOGIC
STOCKHOLDER(S)"), be converted into the right to receive the "COMMON APPLICABLE
FRACTION" of a fully paid and nonassessable share of Excite Common Stock.
(i) The Total Excite Shares. The Total Excite
Shares issuable in connection with the Merger (the "TOTAL EXCITE SHARES") shall
be equal to an aggregate of three million two hundred thirty-six thousand three
hundred sixty-four (3,236,364) shares of Excite Common Stock.
(ii) Common Applicable Fraction. The Common
Applicable Fraction shall be determined by dividing (A) the Total Excite Shares
(as defined above in Merger Subsection 1.1.1(i)) by (B) the "TOTAL MATCHLOGIC
SHARES", which shall be equal to the sum of: (i) the number of shares of
Matchlogic Common Stock outstanding immediately prior to the Effective Time,
(ii) the total number of shares of Matchlogic Common into which all shares of
Matchlogic Series A Preferred Stock that are outstanding as of the date hereof
could be converted, and (iii) the total number of shares of Matchlogic Common
Stock issuable upon exercise of all Matchlogic Options outstanding and vested
and Matchlogic Warrants outstanding immediately prior to the Effective Time.
(iii) Application of the Common Applicable
Fraction. The holders of Matchlogic Common Stock shall receive such number of
shares of Excite Common Stock equal to the Common Applicable Fraction
multiplied by the number of shares of Matchlogic Common Stock so held by such
stockholder. The holders of Matchlogic Series A Preferred Stock shall receive
such number of shares of Excite Common Stock equal to the Common Applicable
Fraction multiplied by the number of shares of Matchlogic Common Stock into
which each share of Matchlogic Series A Preferred Stock is convertible.
1.1.2 Matchlogic Options. At the Effective Time, Excite
will assume all outstanding options (both vested and unvested) to purchase
shares of Matchlogic Common Stock and each holder of a Matchlogic Option
granted (a) under the Matchlogic, Inc. 1997 Stock Plan (the "MATCHLOGIC OPTION
PLAN") or (b) outside of the Matchlogic Option Plan, shall be entitled, in
accordance with the existing terms of each such Matchlogic Option, to purchase
after the Effective Time that number of shares of Excite Common Stock
determined by multiplying the number of shares of Matchlogic Common Stock
subject to such Matchlogic Option at the Effective Time by the Common
Applicable Fraction, and the exercise price per share for each such assumed
option (the "ASSUMED OPTION") will equal the exercise price of the Matchlogic
Option immediately prior to the Effective Time divided by the Common Applicable
Fraction. If the foregoing calculation results in an Assumed Option (a) being
exercisable for a fraction of a share, then the number of shares of Excite
Common Stock subject to such Assumed Option will
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be rounded down to the nearest whole number with no cash being payable for such
fractional share, or (b) being exercisable for an exercise price that includes
a fraction of a cent, the exercise price shall be rounded up to the nearest
whole cent. The term, exercisability, vesting schedule, status as an
"incentive stock option" under Section 422A of the Code, if applicable, and all
other terms of the Assumed Options will otherwise be unchanged. The continuous
term of employment with Matchlogic will be credited to each holder of an
Assumed Option as if it were employment with Excite for purposes of determining
the vesting and the number of shares subject to exercise after the Effective
Time. Promptly following the Effective Time, Excite will issue to each holder
of an Assumed Option a document evidencing the foregoing assumption by Excite.
Attached hereto as Exhibit 1.1.2 is list of all holders of Matchlogic Options
and the number of options held by each, the number of shares of Excite Common
Stock for which each Matchlogic Option will become exercisable and the exercise
price of each such assumed option. To the extent required by, and subject to
the provisions of, such Matchlogic Option Plan, Excite shall comply with the
terms of the Matchlogic Option Plan and use its reasonable best efforts to
preserve the incentive stock option status after the Effective Time of the
Assumed Options which qualified as incentive stock options prior to the
Effective Time.
1.1.3 Matchlogic Warrants. At the Effective Time, Excite
will assume all outstanding warrants (including the warrant issuable to Silicon
Valley Bank upon the Closing) to purchase shares of Matchlogic Capital Stock
and each holder of a Matchlogic Warrant (an "ASSUMED WARRANT") shall be
entitled, in accordance with the existing terms of such Matchlogic Warrant, to
purchase after the Effective Time that number of shares of Excite Common Stock
determined by multiplying the number of shares of Matchlogic Capital Stock
subject to such Matchlogic Warrant at the Effective Time by the Common
Applicable Fraction, and the exercise price per share for each such assumed
Warrant will equal the exercise price of the Matchlogic Warrant immediately
prior to the Effective Time divided by the Common Applicable Fraction. If the
foregoing calculation results in an Assumed Warrant being exercisable for a
fraction of a share, then the number of shares of Excite Common Stock subject
to such Assumed Warrant will be rounded down to the nearest whole number with
no cash being payable for such fractional share. The terms of the Matchlogic
Warrants will otherwise be unchanged.
1.1.4 Adjustments for Capital Changes. If prior to the
Effective Time, Excite recapitalizes through a split-up of its outstanding
shares into a greater number, or a combination of its outstanding shares into a
lesser number, reorganizes, reclassifies or otherwise changes its outstanding
shares into the same or a different number of shares of other classes (other
than through a split-up or combination of shares provided for in the previous
clause), or declares a dividend on its outstanding shares payable in shares or
securities convertible into shares, the number of shares of Excite Common Stock
into which the shares of Matchlogic Capital Stock, Matchlogic Options and
Matchlogic Warrants are to be converted will be adjusted appropriately so as to
maintain the proportionate interests of the holders of the Matchlogic Capital
Stock, Matchlogic Options and Matchlogic Warrants and the holders of Excite
shares.
1.1.5 Dissenting Shares. Holders of shares of Matchlogic
Capital Stock who have complied with all requirements for perfecting
dissenter's rights, as set forth in the general
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corporation law of the State of Delaware (the "DELAWARE LAW"), shall be
entitled to their rights under the Delaware Law with respect to such shares
("DISSENTING SHARES").
1.2 Fractional Shares. No fractional shares of Excite Common
Stock will be issued in connection with the Merger, but in lieu thereof, the
holder of any shares of Matchlogic Capital Stock who would otherwise be
entitled to receive a fraction of a share of Excite Common Stock will receive
from Excite, promptly after the Effective Time, an amount of cash equal to (i)
the closing price of Excite Common Stock as reported on NASDAQ National Market
System on the date immediately prior to the date of Closing, multiplied by (ii)
the fraction of a share to which such holder would otherwise be entitled.
1.3 Escrow Agreement. At the closing of the Merger (the
"CLOSING"), Excite will withhold that number of shares of Excite Common Stock
otherwise issuable to the Matchlogic Stockholders in accordance with Section
1.1 (the "ISSUABLE SHARES") as determined pursuant to this Section 1.3 (rounded
down to the nearest whole number of shares to be issued to each Matchlogic
Stockholder) and deliver such shares (the "ESCROW SHARES") to Chase Trust
Company of California (the "ESCROW AGENT"), as escrow agent, to be held by the
Escrow Agent as collateral for Matchlogic's and the Matchlogic Stockholder's
obligations under Section 10.2 and pursuant to the provisions of an escrow
agreement (the "ESCROW AGREEMENT") in substantially the form of Exhibit 1.3.
The Escrow Shares will be represented by a certificate or certificates issued
in the name of the Matchlogic Stockholders and delivered to the Escrow Agent
and will be held as collateral for Damages suffered by an Indemnified Person
(each as defined in Section 10.2) for breaches of the representations,
warranties and covenants of Matchlogic contained in this Agreement. The Escrow
Shares shall equal seven and one-half percent (7-1/2%) of the Issuable Shares.
The Escrow Shares will be delivered and, subject to the provisions of the
succeeding sentence, will be held by the Escrow Agent from the Closing until
(a) the date on which Excite has received audited financial statements together
with a report thereon from Excite's independent auditors covering the combined
results of Excite and Matchlogic for the first fiscal year of Excite ending
after the Closing Date (i.e., the year ending December 31, 1998), for items
expected to be encountered in the audit process,[ provided that Excite shall
have until March 31, 1999 to review the audit results to determine if any claim
for Damages exists under Section 10.2 of this Agreement and Excite shall
provide notice of any claim for Damages on or prior to March 31, 1999,] and (b)
three hundred sixty (360) days from the Closing Date for all other items (the
"ESCROW PERIOD"). Notwithstanding the foregoing and as more fully provided in
the Escrow Agreement, (i) on the first business day after ninety days following
the Effective Time (the "FIRST INTERIM DISTRIBUTION DATE") the Escrow Agent
shall distribute to the Matchlogic Stockholders, on a pro rata basis, that
portion of the Escrow Shares equal to two and one-half percent (2-1/2%) of the
Issuable Shares (less that number of Escrow Shares having a value (as
determined in accordance with the Escrow Agreement) sufficient to cover all
Claims (as defined below) for which as of such First Interim Distribution Date
Excite shall have given a Notice of Claim (as defined below) and which remain
unsettled in which case such Escrow Shares shall be held exclusively for and in
addition to the remainder of the Escrow Shares the satisfaction of any
settlement or other resolution of any and all such Claims as determined under
the provisions of Section 5 of the Escrow Agreement), and (ii) on the first
business day after three hundred and sixty (360) days following the Effective
Time (the "SECOND INTERIM
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DISTRIBUTION DATE"), the Escrow Agent shall distribute to the Matchlogic
Stockholders, on a pro rata basis, the remainder of the Escrow Shares (less
that number of Escrow Shares having a value (as determined in accordance with
the Escrow Agreement) sufficient to cover all Claims for which as of such
Second Interim Distribution Date Excite shall have given a Notice of Claim and
which remain unsettled in which case such Escrow Shares shall be held for the
satisfaction of any settlement or other resolution of any and all such Claims
(including Claims for which Exicte had given a Notice of Claim as of the First
Interim Distribution Date and which remain unsettled as of the Second Interim
Distribution Date) as determined under the provisions Section 5 of the Escrow
Agreement). In all cases as to matters which an Indemnified Person has given a
Notice of Claim for Damages during the Escrow Period, such period with respect
thereto shall continue until such claim for Damages is finally resolved and the
Matchlogic Stockholder's indemnification obligations under Section 10.2 hereof
with respect thereto are fully satisfied.
In the event that the Merger is approved by the Matchlogic
Stockholders, as provided herein, the Matchlogic Stockholders shall, without
any further act of any Matchlogic Stockholder, be deemed to have consented to
and approved (i) the use of the Escrow Shares as collateral for the Matchlogic
Stockholder's indemnification obligations under Section 10.2 in the manner set
forth in the Escrow Agreement, (ii) the appointment of Xxxx Xxxxxxxx as the
representative of the Matchlogic Stockholders (the "REPRESENTATIVE") under the
Escrow Agreement and as the attorney-in-fact and agent for and on behalf of
each Matchlogic Stockholder (other than holders of Dissenting Shares), and the
taking by the Representative of any and all actions and the making of any
decisions required or permitted to be taken by the Representative under the
Escrow Agreement (including, without limitation, the exercise of the power to:
(a) execute and deliver the Escrow Agreement; (b) authorize delivery to Excite
of Escrow Shares in satisfaction of claims by Excite; (c) agree to, negotiate,
enter into settlements and compromises of and demand arbitration and comply
with orders of courts and awards of arbitrators with respect to such claims;
(d) resolve any claim made pursuant to Section 10.2; and (e) take all actions
necessary in the judgment of the Representative for the accomplishment of the
foregoing) and (iii) to all of the other terms, conditions and limitations in
the Escrow Agreement.
1.4 Effects of the Merger. At the Effective Time: (a) the
separate existence of Merger Sub will cease and Merger Sub will be merged with
and into Matchlogic, and Matchlogic will be the surviving corporation, pursuant
to the terms of the Certificate of Merger, (b) the Certificate of Incorporation
and Bylaws of Matchlogic will be amended and restated to be the same as the
Certificate of Incorporation and Bylaws of Merger Sub; provided, however, that
the corporate name of Matchlogic will not change, (c) the Board of Directors
and officers of Excite will remain unchanged except as provided in Section 7.9
hereinbelow, (d) all the directors of Matchlogic immediately prior to the
Effective Time will resign and Excite will appoint new directors of the
surviving corporation and the officers of Matchlogic immediately prior to the
Effective Time will resign and Excite will appoint the new officers of the
surviving corporation, (e) each share of Matchlogic Capital Stock outstanding
immediately prior to the Effective Time will be converted into Excite Common
Stock and each Matchlogic Option and Matchlogic Warrant outstanding immediately
prior to the Effective Time will be assumed by Excite, each as provided in
Sections 1.1 and 1.2, and (f) the Merger will, from and after the Effective
Time, have all of the effects provided by applicable law.
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1.5 S-3 Registration Rights and Registration on Form S-8.
1.5.1 S-3 Registration Rights. Effective upon the
Effective Time, each Matchlogic Stockholder who receives shares of Excite
Common Stock in the Merger pursuant to Section 1.1 hereof and each holder of an
Assumed Warrant shall be granted Form S-3 registration rights (other than
pursuant to the assumption of Assumed Options, which shall be covered by a Form
S-8 pursuant to Section 1.5.2 hereof) under the 1933 Act on the terms and
subject to the conditions and limitations of the Registration Rights Agreement
attached hereto as Exhibit 1.5.1A. Within ninety (90) days of the Closing,
Excite will cause to be filed a Registration Statement on Form S-3 covering the
resale of all securities issued (other than Assumed Options which shall be
covered by the Form S-8, pursuant to Section 1.5.2 hereof). Excite will use
reasonable commercial efforts to cause the Registration Statement to become
effective promptly after filing and shall keep such Registration Statement
effective until such time as the recipients of the Excite Common Stock are
eligible to sell all of the Excite Common Stock (other than those covered by
the Form S-8) in a three (3) month period pursuant to the resale restrictions
provided for in Rule 144 under the Securities Act. Each Matchlogic Stockholder
shall agree that the Excite Securities issued to such Matchlogic Stockholder
(the "LOCK-UP SHARES"), to the extent requested by Excite or an underwriter of
securities of Excite, be subject, on a pro rata basis, to the lock-up
provisions included in the Registration Rights Agreement. In the event Excite
initiates an underwritten offering of at least twenty million dollars
($20,000,000.00) of newly issued shares of Excite Common Stock with nationally
recognized underwriters while the S-3 Registration Statement is effective each
Matchlogic Stockholder agrees to be subject to the lock-up provisions set forth
in the Registration Rights Agreement.
1.5.2 Registration on Form S-8. In addition, Excite shall
use reasonable commercial efforts to cause the shares of Excite Common Stock
that are issuable upon exercise of the Assumed Options to be registered under
the Securities Act on Form S-8 ("FORM S-8"). Matchlogic will reasonably
cooperate with Excite to the best of Matchlogic's ability in the preparation of
the Form S-8.
1.6 Qualify as a Tax-Free Reorganization. The parties intend to
adopt this Agreement as a plan of reorganization and to consummate the Merger
in accordance with the provisions of Section 368(a)(1)(A) of the Code. The
parties believe that the total value of the Excite Common Stock to be received
in the Merger by the Matchlogic Stockholders is equal, in each instance, to the
total value of the Matchlogic Capital Stock to be surrendered in exchange
therefor. The Excite Common Stock and Excite Securities issued in the Merger
will be issued solely in exchange for Matchlogic Capital Stock, Matchlogic
Options and Matchlogic Warrants, respectively, and no other transaction other
than the Merger represents, provides for or is intended to be an adjustment to
the consideration paid for the Matchlogic Capital Stock, Matchlogic Options and
Matchlogic Warrants. Except for cash paid in lieu of fractional shares or for
Dissenting Shares, no consideration that could constitute "other property"
within the meaning of Section 356 of the Code is being paid by Excite for the
Matchlogic Capital Stock in the Merger. The parties shall not take a position
on any tax returns inconsistent with this Section 1.6. In addition, Excite
represents now, and as of the Closing Date, that it presently intends to
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continue Matchlogic's historic business or use a significant portion of
Matchlogic's business assets in a business. Excite has no current plan or
intention to liquidate Matchlogic, to merge Matchlogic with and into another
corporation, to sell or otherwise dispose of the stock of Matchlogic or to
cause Matchlogic to sell or otherwise dispose of any of its assets, except for
dispositions made in the ordinary course of business or transfers described in
Section 368(a)(2)(C) of the Code. At the Closing, the Chief Financial Officers
of Excite and Matchlogic shall each execute and deliver tax certificates in the
forms of Exhibits 1.6A-B, together with an acknowledgment that such
certificates will be relied upon by counsel to Matchlogic and counsel to
Excite. The provisions and representations contained or referred to in this
Section 1.6 shall survive until the expiration of the applicable statute of
limitations.
2. REPRESENTATIONS AND WARRANTIES OF MATCHLOGIC AND PRINCIPAL
SHAREHOLDERS
The Principal Stockholders and Matchlogic, jointly and severally,
hereby represent and warrant as follows, except as set forth in the Matchlogic
Schedule of Exceptions (in numbered paragraphs that correspond to the Section
numbers below) simultaneously delivered to Excite with the execution of this
Agreement, as Exhibit 2.0:
2.1 Organization and Good Standing. Matchlogic is a corporation
duly organized, validly existing and in good standing under the laws of the
States of Delaware and is in good standing under the laws of the State of
Colorado, 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 or expected business, results of
operations or financial condition (a "MATERIAL ADVERSE EFFECT").
2.2 Power, Authorization and Validity.
2.2.1 Matchlogic has the right, power, legal capacity and
authority to enter into and, subject to Matchlogic Stockholder approval,
perform its obligations under this Agreement, and all agreements to which
Matchlogic is or will be a party that are required to be executed pursuant to
this Agreement (the "MATCHLOGIC ANCILLARY AGREEMENTS"). The execution,
delivery and performance of this Agreement and the Matchlogic Ancillary
Agreements have been duly and validly approved and authorized by Matchlogic's
Board of Directors.
2.2.2 No filing, authorization or approval, governmental or
otherwise, is necessary to enable Matchlogic to enter into, and to perform its
obligations under, this Agreement and the Matchlogic Ancillary Agreements,
except for (a) the filing of the Certificate of Merger with the Delaware
Secretary of State, and the filing of appropriate documents with the relevant
authorities of other states in which Matchlogic is qualified to do business, if
any, (b) such filings as may be required to comply with federal and state
securities laws, (c) consents required under contracts disclosed in Exhibit
2.11 and (d) the approval of the Matchlogic Stockholders of the transactions
contemplated hereby, as provided under applicable law and Matchlogic's
Certificate of Incorporation and Bylaws.
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2.2.3 This Agreement and the Matchlogic Ancillary
Agreements are, or when executed by Matchlogic will be, valid and binding
obligations of Matchlogic 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; provided,
however, that the Certificate of Merger will not be effective until filed with
the Delaware Secretary of State.
2.3 Capitalization. The authorized capital stock of Matchlogic
consists of seventeen million (17,000,000) shares of Common Stock, par value
$.01 per share ("MATCHLOGIC COMMON STOCK") and ten million one hundred
sixty-six thousand six hundred sixty-seven (10,166,667) shares of Preferred
Stock., par value $.01 per share. All of the authorized shares of Matchlogic
Preferred Stock are designated as Series A Preferred Stock ("MATCHLOGIC SERIES
A PREFERRED STOCK"). As of December 31, 1997, 3,358,823 shares of Matchlogic
Common Stock and 10,000,000 shares of Matchlogic Series A Preferred Stock, are
issued and outstanding. An aggregate of one million nine hundred nine hundred
thirty nine thousand one hundred forty (1,939,140) shares of Matchlogic Common
are reserved and authorized for issuance pursuant to the Matchlogic Option
Plan, of which options to purchase a total of 556,500 shares of Common Stock
are outstanding thereunder. Warrants to purchase 173,097 shares of Matchlogic
Common Stock and 166,667 shares of Matchlogic Series A Preferred Stock are
issued and outstanding. All issued and outstanding shares of Matchlogic
Capital 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 Matchlogic in compliance with all
registration or qualification requirements (or applicable exemptions therefrom)
of applicable federal and state securities laws. A list of all holders of
Matchlogic Capital Stock, Matchlogic Options and Matchlogic Warrants and the
number of shares, options and warrants held by each has been delivered by
Matchlogic to Excite herewith as Exhibit 2.3. Except as set forth in this
Section 2.3 and in Exhibit 2.3, there are no options, warrants, calls,
commitments, conversion privileges or preemptive or other rights or agreements
outstanding to purchase any of Matchlogic's authorized but unissued capital
stock or any securities convertible into or exchangeable for shares of
Matchlogic Capital Stock or obligating Matchlogic 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. None of the Matchlogic Options or other issuances of securities under
the Matchlogic Option Plan or outside the Matchlogic Option Plan are subject to
acceleration or automatic vesting as a result of the Merger. 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 Matchlogic's outstanding securities. Matchlogic is
not under any obligation to register under the Securities Act any of its
presently outstanding securities or any securities that may be subsequently
issued. None of the Matchlogic Options or other issuance of securities under
the Matchlogic Option Plan or outside of the Matchlogic Option Plan are subject
to acceleration or automatic vesting as a result of the Merger.
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2.4 Merger Subsidiaries. Matchlogic does not have any
subsidiaries or any interest, direct or indirect, in any corporation,
partnership, joint venture or other business entity.
2.5 No Violation of Existing Agreements. Neither the execution
and delivery of this Agreement nor of any Matchlogic 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, breach, impairment or violation of (a) any provision of the
Certificate of Incorporation or Bylaws of Matchlogic, as currently in effect,
(b) in any material respect, any Material Agreement (as defined in Section
2.11) to which Matchlogic is a party or by which Matchlogic is bound, or (c)
any federal, state, local or foreign judgment, writ, decree, order, statute,
rule or regulation applicable to Matchlogic or its assets or properties,
except, in each case, where such conflict, termination, breach, impairment or
violation would not have a Material Adverse Effect on Matchlogic.
2.6 Litigation. There is no action, proceeding, claim or
investigation pending against Matchlogic before any court or administrative
agency that if determined adversely to Matchlogic may reasonably be expected to
have a Material Adverse Effect on Matchlogic; nor, to the best of Matchlogic's
knowledge, has any such action, proceeding, claim or investigation been
threatened. There is, to Matchlogic's knowledge, no basis for any shareholder
or former shareholder of Matchlogic, or any other person, firm, corporation, or
entity, to assert a claim against Matchlogic or Excite based upon: (a)
ownership or rights to ownership of any shares of Matchlogic Capital Stock
(except for dissenter's rights with respect to shares of Excite Common Stock
issuable by virtue of the Merger), (b) any rights as a Matchlogic Stockholder,
including any option or preemptive rights or rights to notice or to vote, or
(c) any rights under any agreement among Matchlogic and the Matchlogic
Stockholders.
2.7 Taxes. Matchlogic has timely filed all federal, state, local
and foreign tax returns, estimates, information statements and reports required
to be filed with respect to Matchlogic and its operations (collectively,
"RETURNS"), has timely paid all taxes shown due on all Returns which have been
filed, has established an adequate accrual or reserve for the payment of all
taxes, due and payable, including reasonable accruals for taxes payable in
respect of the periods subsequent to the periods covered by the most recent
applicable Returns, has made all necessary estimated tax payments, and has no
material liability for taxes in excess of the amounts so paid or accruals or
reserves so established. Matchlogic is not delinquent in the payment of any
tax nor delinquent in the filing of any Returns, and no deficiencies for any
tax have been threatened, claimed, proposed, or assessed by any taxing
authority. Matchlogic has not executed any waiver of any statute of
limitations on or extending the period for the assessment or collection of any
tax. Matchlogic has not received any notification that any material issues
have been raised (and are currently pending) by the Internal Revenue Service or
any other taxing authority (including but not limited to any sales tax
authority) regarding Matchlogic. No tax return of Matchlogic has ever been
audited by the Internal Revenue Service or any state taxing agency or
authority. Matchlogic has provided to Excite copies of all federal and state
income and all state sales and use Returns for all periods since the date of
Matchlogic's incorporation. There are no liens, pledges, charges, claims,
security interests or other encumbrances of any sort on the assets of
Matchlogic relating to or attributable to taxes, other than liens for taxes not
yet due and payable.
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There is no contract, agreement, plan or arrangement, including but not limited
to the provisions of this Agreement, covering any employee or former employee
of Matchlogic that, individually or collectively, could give rise to the
payment of any amount that would be disallowed pursuant to Section 280G or
162(m) of the Code. Matchlogic is not a party to a tax sharing or allocation
agreement nor does Matchlogic owe any amount under any such agreement.
Matchlogic has not filed any consent agreement under Section 341(f) of the Code
or agreed to have Section 341(f)(2) of the Code apply to any disposition of a
subsection (f) asset (as defined in Section 341(f)(4) of the Code) owned by
Matchlogic. None of Matchlogic's assets are treated as "tax-exempt use
property" within the meaning of Section 168(h) of the Code. For the purposes
of this Agreement, the terms "TAX" and "TAXES" include all federal, state,
local and foreign income, gains, franchise, excise, property, sales, use,
employment, license, payroll, occupation, recording, value added or transfer
taxes, governmental charges, fees, levies or assessments (whether payable
directly or by withholding), and, with respect to such taxes, any estimated
tax, interest and penalties or additions to tax and interest on such penalties
and additions to tax.
2.8 Matchlogic Financial Statements. Matchlogic has delivered to
Excite as Exhibit 2.8 Matchlogic's (a) unaudited balance sheet as of November
30, 1997 (the "1997 BALANCE SHEET") and income statement and statement of cash
flows for the approximately seven (7) month period then ended (collectively,
the "1997 FINANCIAL STATEMENTS"), and (b) unaudited balance sheet as of
December 31, 1997 (the "DECEMBER 31, 1997 BALANCE SHEET") and income statement
and statement of cash flows for the approximately eight (8) month period then
ended (collectively, the "DECEMBER FINANCIAL STATEMENTS") (the 1997 Financial
Statements and December Financial Statements are collectively referred to
herein as the "FINANCIAL STATEMENTS"). The Financial Statements are in
accordance with the books and records of Matchlogic and fairly present in all
material respects the financial condition of Matchlogic at the dates therein
indicated and the results of operations for the periods therein specified. The
Financial Statements have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis (except as to footnotes).
Matchlogic has no material debt, liability or obligation of any nature, whether
accrued, absolute, contingent or otherwise, and whether due or to become due,
that is not reflected or reserved against in the Financial Statements which
would be required under generally accepted accounting principles to be
reflected or reserved, except for those that may have been incurred after the
date of the Financial Statements in the ordinary course of its business,
consistent with past practice and that are not material in amount either
individually or collectively.
2.9 Title to Properties. Matchlogic owns no real property.
Matchlogic has good and marketable title to all of its assets as shown on the
December 31, 1997 Balance Sheet, free and clear of all liens, charges,
restrictions or encumbrances (other than for taxes not yet due and payable) in
excess of twenty five thousand dollars ($25,000) in the aggregate. All
machinery and equipment included in such properties is in good condition and
repair, normal wear and tear excepted, and all leases of real or personal
property to which Matchlogic is a party are fully effective and afford
Matchlogic peaceful and undisturbed possession of the subject matter of the
lease. Matchlogic is not in violation of any zoning, building, safety or
environmental ordinance, regulation or requirement or other law or regulation
applicable to the operation of owned or
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leased properties (the violation of which would have a Material Adverse Effect
on Matchlogic), and has not received any notice of such violation with which it
has not complied.
2.10 Absence of Certain Changes. Since December 31, 1997 and up to
and including the date of this Agreement, there has not been with respect to
Matchlogic:
(a) any change in the financial condition, properties,
assets, liabilities, business or operations thereof which change by itself or
in conjunction with all other such changes, whether or not arising in the
ordinary course of business, has had or is reasonably likely to have a material
adverse effect on Matchlogic;
(b) any material contingent liability incurred thereby as
guarantor or otherwise with respect to the obligations of others;
(c) any mortgage, encumbrance or lien placed on any of
the material properties of Matchlogic other than in the ordinary course of
business;
(d) any material obligation or liability incurred thereby
other than obligations and liabilities incurred in the ordinary course of
business;
(e) any purchase or sale or other disposition, or any
agreement or other arrangement for the purchase, sale or other disposition, of
any of the material properties or assets of Matchlogic other than in the
ordinary course of business;
(f) any damage, destruction or loss, whether or not
covered by insurance, materially and adversely affecting the properties, assets
or business of Matchlogic;
(g) any declaration, setting aside or payment of any
dividend on, or the making of any other distribution in respect of, the capital
stock thereof, any split, combination or recapitalization of the capital stock
thereof or any direct or indirect redemption, purchase or other acquisition of
the capital stock thereof;
(h) any labor dispute or claim of unfair labor practices,
any change in the compensation payable or to become payable to any of its
officers, employees or agents, or any bonus payment or arrangement made to or
with any of such officers, employees or agents;
(i) any change with respect to the management,
supervisory or other key personnel thereof;
(j) any payment or discharge of a material lien or
liability thereof which lien was not either shown on the 1997 Balance Sheet or
incurred in the ordinary course of business thereafter; or
(k) any material obligation or liability incurred thereby
to any of its officers, directors or shareholders or any loans or advances made
thereby to any of its officers, directors or shareholders except normal
compensation and expense allowances payable to officers and directors.
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2.11 Material Agreements, Contracts and Commitments. Except as set
forth on Exhibit 2.11 delivered to Excite herewith, Matchlogic is not a party
or subject to any oral or written contracts, obligations, commitments, plans,
leases, instruments, arrangements or licenses not entered into in the ordinary
course of business which is material to the business of Matchlogic (each a
"MATERIAL AGREEMENT"), including, but not limited to any:
(a) Contract providing for potential payments by or to
Matchlogic in excess of Twenty Five Thousand Dollars ($25,000.00) or more;
(b) Product distribution agreement, development
agreement, or license agreement as licensor or licensee (except for standard
non-exclusive software licenses granted to end-user customers in the ordinary
course of business the form of which has been provided to Excite's counsel or
standard licenses purchased by Matchlogic for off-the-shelf software);
(c) Material agreement for the lease of real or personal
property;
(d) Joint venture contract or arrangement or any other
agreement that involves a sharing of profits with other persons;
(e) Instrument evidencing or related in any way to
indebtedness for borrowed money by way of direct loan, sale of debt securities,
purchase money obligation, conditional sale, guarantee, or otherwise, except
for trade indebtedness incurred in the ordinary course of business, and except
as disclosed in the Financial Statements;
(f) Contract containing covenants purporting to limit
Matchlogic's freedom to compete in any line of business in any geographic area;
or
(g) Stock redemption or purchase agreement yet to be
performed.
To its knowledge, all Material Agreements listed in Exhibit
2.11 constitute valid and enforceable obligations of the parties thereto and
are in full force and effect. Matchlogic is not, nor, to the knowledge of
Matchlogic and the Principal Stockholders, is any other party thereto, in
breach or default in any material respect under the terms of any such Material
Agreement, which breach or default may reasonably be expected to have a
Material Adverse Effect on Matchlogic. A copy of each agreement or document
listed on Exhibit 2.11 has been delivered to Excite's counsel. Matchlogic is
not a party to any contract or arrangement which has had or could reasonably be
expected to have a Material Adverse Effect on Matchlogic.
2.12 Intellectual Property. Matchlogic owns, or has the rights to
use, sell or license all Intellectual Property Rights (as defined below)
necessary or required for the conduct of, or used in, its business as presently
conducted and as contemplated to be conducted (such Intellectual Property
Rights being hereinafter collectively referred to as the "MATCHLOGIC IP
RIGHTS") and such rights to use, sell or license are reasonably sufficient for
the conduct of its business as presently conducted and as contemplated to be
conducted. The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby will not constitute a
material breach of any instrument or agreement governing any Matchlogic
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IP Right (the "MATCHLOGIC IP RIGHTS AGREEMENTS"), will not cause the forfeiture
or termination or give rise to a right of forfeiture or termination of any
Matchlogic IP Right or impair the right of Matchlogic to use, sell or license
any Matchlogic IP Right or portion thereof (except where such breach,
forfeiture or termination would not have a Material Adverse Effect on
Matchlogic). There are no royalties, honoraria, fees or other payments payable
by Matchlogic to any person by reason of the ownership, use, license, sale or
disposition of the Matchlogic IP Rights (other than as set forth in the
Matchlogic IP Rights Agreements listed in Exhibit 2.12). Neither the
manufacture, marketing, license, sale or intended use of any product currently
licensed or sold by Matchlogic or currently under development by Matchlogic
violates any license or agreement between Matchlogic and any third party or
infringes any Intellectual Property Right of any other party; and there is no
pending or, to the knowledge of Matchlogic and the Principal Stockholders,
threatened claim or litigation contesting the validity, ownership or right to
use, sell, license or dispose of any Matchlogic IP Right; nor, to the knowledge
of Matchlogic and the Principal Stockholders is there any reasonable basis for
any such claim; nor has Matchlogic received any notice asserting that any
Matchlogic IP Right or the proposed use, sale, license or disposition thereof
conflicts or will conflict with the rights of any other party, nor, to the best
knowledge of Matchlogic and the Principal Stockholders, is there any reasonable
basis for any such assertion. Matchlogic has taken reasonable and practicable
steps designed to safeguard and maintain the secrecy and confidentiality of,
and its proprietary rights in, all material Matchlogic IP Rights. The
"certificate(s) of originality"("CERTIFICATE(S) OF ORIGINALITY") relating to
Matchlogic's software documentation and other materials used in Matchlogic's
business and Exhibit 2.12 together contain a list of all applications,
registrations, filings and other formal actions made or taken pursuant to
federal, state and foreign laws by Matchlogic to perfect or protect its
interest in Matchlogic IP Rights, including, without limitation, all patents,
patent applications, copyrights, copyright applications, trademarks, trademark
applications, tradenames, service marks, service xxxx applications, trade
secrets and all Matchlogic IP Rights Agreements (except for object code
end-user licenses granted to end-users in the ordinary course of business that
permit use of software products without a right to modify, distribute or
sublicense the same). As used herein, the term "INTELLECTUAL PROPERTY RIGHTS"
shall mean all industrial and intellectual property rights in any jurisdiction
in the world, including, without limitation, patents, patent applications,
patent rights, trademarks, trademark applications, trade names, service marks,
service xxxx applications, copyright, copyright applications, moral rights,
franchises, licenses, inventions, know-how, trade secrets, customer lists,
proprietary processes and formulae, all source and object code, algorithms,
architecture, structure, display screens, layouts, inventions, development
tools and all documentation and media constituting, describing or relating to
the above, including, without limitation, manuals, memoranda and records.
2.13 Compliance with Laws. Matchlogic has complied in all material
respects with all applicable laws, ordinances, regulations, and rules, and all
orders, writs, injunctions, awards, judgments, and decrees applicable to it or
to the assets, properties, and business thereof (the violation of which would
have a Material Adverse Effect on Matchlogic), including, without limitation:
(a) all applicable federal and state securities laws and regulations, (b) all
applicable federal, state, and local laws, ordinances, regulations, and all
orders, writs, injunctions, awards, judgments, and decrees pertaining to (i)
the sale, licensing, leasing, ownership, or management of its owned, leased or
licensed real or personal property, products and technical data, (ii)
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employment and employment practices, terms and conditions of employment, and
wages and hours and (iii) safety, health, fire prevention, environmental
protection, toxic waste disposal, building standards, zoning and other similar
matters (c) the Export Administration Act and regulations promulgated
thereunder and all other laws, regulations, rules, orders, writs, injunctions,
judgments and decrees applicable to the export or re-export of controlled
commodities or technical data and (d) the Immigration Reform and Control Act.
Matchlogic has received all permits and approvals from, and has made all
filings with, third parties, including government agencies and authorities,
that are necessary in connection with its present business and which, if not
received or filed, would have a Material Adverse Effect on Matchlogic. There
are no legal or administrative proceedings or investigations pending, or to its
knowledge threatened, that, if enacted or determined adversely to Matchlogic,
would result in any Material Adverse Effect on Matchlogic, provided that
Matchlogic itself is not a party to any such proceeding or investigation.
2.14 Certain Transactions and Agreements. None of the officers of
Matchlogic or Principal Stockholders nor any member of their immediate
families, has any direct or indirect ownership interest in any firm or
corporation that competes with Matchlogic (except with respect to any interest
in less than one percent (1%) of the stock of any corporation whose stock is
publicly traded). None of the officers, directors or Principal Stockholders,
nor any member of their immediate families, is directly or indirectly
interested in any contract or informal arrangement with Matchlogic, except for
normal compensation for services as an officer, consultant, director or
employee thereof. None of said officers, directors or Principal Stockholders,
nor any member of their immediate families, has any interest in any property,
real or personal, tangible or intangible, including inventions, patents,
copyrights, trademarks or trade names or trade secrets, used in or pertaining
to the business of Matchlogic, except for the normal rights of a stockholder.
2.15. Employees, ERISA and Other Compliance.
2.15.1 Except as set forth in Exhibit 2.15.1,
Matchlogic has no employment contracts or consulting agreements currently in
effect that are not terminable at will (other than agreements with the sole
purpose of providing for the confidentiality of proprietary information or
assignment of inventions). All current and former officers, employees and
consultants of Matchlogic having access to proprietary information or in any way
involved with the creation of Matchlogic IP Rights have executed and delivered
to Matchlogic an agreement regarding the protection of such proprietary
information or Matchlogic IP Rights and the assignment of inventions to
Matchlogic; copies of the form of all such agreements have been delivered to
Excite's counsel.
2.15.2 Matchlogic (i) has not ever been nor is
subject to a union organizing effort, (ii) is not subject to any collective
bargaining agreement with respect to any of its employees, (iii) is not subject
to any other contract, written or oral, with any trade or labor union,
employees' association or similar organization, or (iv) has not any current
labor disputes. Matchlogic has good labor relations and has no knowledge of any
facts regarding its labor relations or the employment plans of key employees
indicating that the consummation of the
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transactions contemplated hereby is reasonably likely to have a material
adverse effect on Matchlogic. Matchlogic has no knowledge that any of its key
employees intends to leave its employ.
2.15.3 Exhibit 2.15.3 identifies each "employee
benefit plan," as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), and all other written or formal
plans or agreements involving direct or indirect compensation or benefits, but
excluding workers' compensation, unemployment compensation and other
government-mandated programs currently or previously maintained, contributed to
or entered into by Matchlogic under which Matchlogic or any ERISA Affiliate (as
defined below) thereof has any present or future obligation or liability
(collectively, the "MATCHLOGIC EMPLOYEE PLANS"). For purposes of this Section
2.15.3, "ERISA AFFILIATE" shall mean any entity which is a member of (A) a
"controlled group of corporations," as defined in Section 414(b) of the Code,
(B) a group of entities under "common control," as defined in Section 414(c) of
the Code, or (C) an "affiliated service group," as defined in Section 414(m) of
the Code, or treasury regulations promulgated under Section 414(o) of the Code,
any of which includes Matchlogic. Copies of all Matchlogic Employee Plans (and,
if applicable, related trust agreements) and all amendments thereto and summary
plan descriptions thereof (including summary plan descriptions) have been
delivered to Excite or its counsel, together with the three most recent annual
reports (Form 5500, including, if applicable, Schedule B thereto) prepared in
connection with any such Matchlogic Employee Plan. All Matchlogic Employee Plans
which individually or collectively would constitute an "employee pension benefit
plan," as defined in Section 3(2) of ERISA (collectively, the "MATCHLOGIC
PENSION PLANS"), are identified as such in Exhibit 2.15.3. As of September 30,
1997, all contributions due from Matchlogic with respect to any of the
Matchlogic Employee Plans have been made as required under ERISA or have been
accrued on Matchlogic's financial statements. Each Matchlogic Employee Plan has
been maintained substantially in compliance with its terms and with the
requirements prescribed by any and all statutes, orders, rules and regulations,
including, without limitation, ERISA and the Code, which are applicable to such
Matchlogic Employee Plans.
2.15.4 No "prohibited transaction," as defined in
Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to
any Matchlogic Employee Plan which is covered by Title I of ERISA which would
result in a material liability to Matchlogic taken as a whole, excluding
transactions effected pursuant to a statutory or administrative exemption.
Nothing done or omitted to be done and no transaction or holding of any asset
under or in connection with any Matchlogic Employee Plan has or will make
Matchlogic or any officer or director of Matchlogic subject to any material
liability under Title I of ERISA or liable for any material tax (as defined in
Section 2.7) or penalty pursuant to Sections 4972, 4975, 4976 or 4979 of the
Code or Section 502 of ERISA.
2.15.5 Any Matchlogic Pension Plan which is
intended to be qualified under Section 401(a) of the Code (an "MATCHLOGIC 401(A)
PLAN") has received a favorable determination from the Internal Revenue Service
as to its qualifications, and Matchlogic is not aware of any reason why such
determination may not be relied upon by such plan.
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2.15.6 Exhibit 2.15.6 lists each employment,
severance or other similar contract, arrangement or policy and each plan or
arrangement (written or oral) providing for insurance coverage (including any
self-insured arrangements), workers' benefits, vacation benefits, severance
benefits, disability benefits, death benefits, hospitalization benefits,
retirement benefits, deferred compensation, profit-sharing, bonuses, stock
options, stock purchase, phantom stock, stock appreciation or other forms of
incentive compensation or post-retirement insurance, compensation or benefits
for employees, consultants or directors which (A) is not an Matchlogic Employee
Plan, (B) is entered into, maintained or contributed to, as the case may be, by
Matchlogic and (C) covers any employee or former employee of Matchlogic. Such
contracts, plans and arrangements as are described in this Section 2.15.6 are
herein referred to collectively as the "MATCHLOGIC BENEFIT ARRANGEMENTS." Each
Matchlogic Benefit Arrangement has been maintained in substantial compliance
with its terms and with the requirements prescribed by any and all statutes,
orders, rules and regulations which are applicable to such Matchlogic Benefit
Arrangement. Matchlogic has delivered to Excite or its counsel a complete and
correct copy or description of each Matchlogic Benefit Arrangement.
2.15.7 There has been no amendment to, written
interpretation or announcement (whether or not written) by Matchlogic relating
to, or change in employee participation or coverage under, any Matchlogic
Employee Plan or Matchlogic Benefit Arrangement that would increase materially
the expense of maintaining such Matchlogic Employee Plan or Matchlogic Benefit
Arrangement above the level of the expense incurred in respect thereof for the
fiscal year ended December 31, 1996.
2.15.8 Matchlogic has timely provided to
individuals entitled thereto all required notices and coverage pursuant to
Section 4980B of the Code and the Consolidated Omnibus Budget Reconciliation Act
of 1985, as amended ("COBRA"), with respect to any "qualifying event" (as
defined in Section 4980B(f)(3) of the Code) under any Matchlogic Employee Plan
occurring prior to and including the Closing Date, and no material Tax payable
on account of Section 4980B of the Code has been incurred with respect to any
current or former employees (or their beneficiaries) of Matchlogic.
2.15.9 No benefit payable or which may become
payable by Matchlogic pursuant to any Matchlogic Employee Plan or any Matchlogic
Benefit Arrangement or as a result of or arising under this Agreement shall
constitute an "excess parachute payment" (as defined in Section 280G(b)(1) of
the Code) which is subject to the imposition of an excise Tax under Section 4999
of the Code or which would not be deductible by reason of Section 280G of the
Code.
2.15.10 Matchlogic is in compliance in all material
respects with all applicable laws, agreements and contracts relating to
employment, employment practices, wages, hours, and terms and conditions of
employment, including, but not limited to, employee compensation matters, but
not including ERISA.
2.15.11 To Matchlogic's knowledge, no employee of
Matchlogic is in violation of any term of any employment contract, patent
disclosure agreement, noncompetition
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agreement, or any other contract or agreement, or any restrictive covenant
relating to the right of any such employee to be employed thereby, or to use
trade secrets or proprietary information of others, and, to Matchlogic's
knowledge, the employment of such employees does not subject Matchlogic to any
liability.
2.15.12 A list of all employees, officers and
consultants of Matchlogic and their current compensation is set forth on Exhibit
2.15.12, which has been delivered to Excite.
2.15.13 Except for the agreements described in
Section 1.1.2 hereof, Matchlogic is not a party to any (a) agreement with any
executive officer or other key employee thereof (i) the benefits of which are
contingent, or the terms of which are materially altered, upon the occurrence of
a transaction involving Matchlogic in the nature of any of the transactions
contemplated by this Agreement and the Certificate of Merger, (ii) providing any
term of employment or compensation guarantee, or (iii) providing severance
benefits or other benefits after the termination of employment of such employee
regardless of the reason for such termination of employment, or (b) agreement or
plan, including, without limitation, any stock option plan, stock appreciation
rights plan or stock purchase plan, any of the benefits of which will be
materially increased, or the vesting of benefits of which will be materially
accelerated, by the occurrence of any of the transactions contemplated by this
Agreement and the Certificate of Merger or the value of any of the benefits of
which will be calculated on the basis of any of the transactions contemplated by
this Agreement and the Certificate of Merger.
2.16 Corporate Documents. Matchlogic has made available to Excite
for examination all documents and information listed in the Matchlogic Schedule
of Exceptions or other Exhibits called for by this Agreement or which have been
requested by Excite's legal counsel, including, without limitation, the
following: (a) copies of Matchlogic's Certificate of Incorporation and Bylaws
as currently in effect; (b) its Minute Book containing all records of all
proceedings, consents, actions, and meetings of the stockholders, the board of
directors and any committees thereof; (c) its stock ledger and journal
reflecting all stock issuances and transfers; and (d) all permits, orders, and
consents issued by any regulatory agency with respect to Matchlogic, or any
securities of Matchlogic, and all applications for such permits, orders, and
consents.
2.17 No Brokers. Neither Matchlogic nor any of the Principal
Stockholders are obligated for the payment of fees or expenses of any
investment banker, broker or finder in connection with the origin, negotiation
or execution of this Agreement or the Matchlogic Ancillary Agreements or in
connection with any transaction contemplated hereby or thereby.
2.18 Disclosure. Neither this Agreement, its exhibits and
schedules, nor any of the certificates or documents to be delivered by
Matchlogic to Excite under this Agreement, including the Certificates of
Originality, when taken together, contains any untrue statement of a material
fact or omits 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 materially misleading.
2.19 Information Supplied. None of the information supplied or to
be supplied by Matchlogic to its stockholders in connection with the
solicitation of the approval of Matchlogic's
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stockholders of the Merger and the transactions contemplated in connection
therewith (collectively, "STOCKHOLDER MATERIALS"), at the date such information
is supplied and at the effective time of such stockholders' approval of the
Merger, contains or will contain any untrue statement of a material fact or
omits or will omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they are made, not materially misleading; provided,
however, that Matchlogic makes no representations or warranties regarding
information furnished by or related to Excite.
2.20 Insurance. Matchlogic maintains fire and casualty, general
liability, business interruption, product liability, and sprinkler and water
damage insurance which it believes to be reasonably prudent for similarly sized
and similarly situated businesses.
2.21 Environmental Matters.
2.21.1 During the period that Matchlogic has leased or owned
its properties or owned or operated any facilities, there have been no
disposals, releases or threatened releases of Hazardous Materials (as defined
below) by Matchlogic, or to Matchlogic's or the Principal Stockholder's
knowledge, by others, on, from or under such properties or facilities, the
liability for which would have a Material Adverse Effect on Matchlogic.
Matchlogic has no knowledge of any presence, disposals, releases or threatened
releases of Hazardous Materials on, from or under any of such properties or
facilities, which may have occurred prior to Matchlogic having taken possession
of any of such properties or facilities. For the purposes of this Agreement,
the terms "DISPOSAL," "RELEASE," and "THREATENED RELEASE" shall have the
definitions assigned thereto by the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 et seq., as
amended ("CERCLA"). For the purposes of this Agreement "HAZARDOUS MATERIALS"
shall mean any hazardous or toxic substance, material or waste which is or
becomes prior to the Closing regulated under, or defined as a "hazardous
substance," "pollutant," "contaminant," "toxic chemical," "hazardous
materials," "toxic substance" or "hazardous chemical" under (1) CERCLA; (2) any
similar federal, state or local law; or (3) regulations promulgated under any
of the above laws or statutes.
2.21.2 To the knowledge of Matchlogic and the Principal
Stockholders, none of the properties or facilities of Matchlogic is in material
violation of any federal, state or local law, ordinance, regulation or order
relating to industrial hygiene or to the environmental conditions on, under or
about such properties or facilities, including, but not limited to, soil and
ground water condition. During the time that Matchlogic has owned or leased
its properties and facilities, neither Matchlogic nor, to Matchlogic's and the
Principal Stockholders' knowledge, any third party, has used, generated,
manufactured or stored on, under or about such properties or facilities or
transported to or from such properties or facilities any Hazardous Materials
except in substantial accordance with applicable environmental laws.
2.21.3 During the time that Matchlogic has owned or leased
its respective properties and facilities, there has been no litigation brought
or, to its knowledge threatened, against Matchlogic by, or any settlement
reached by Matchlogic with, any party or parties
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alleging the presence, disposal, release or threatened release of any Hazardous
Materials on, from or under any of such properties or facilities.
2.22 Books and Records.
2.22.1 The books, records and accounts of Matchlogic
(a) are in all material respects true, complete and correct, (b) have been
maintained in accordance with good business practices, (c) are stated in
reasonable detail and accurately and fairly reflect the transactions and
dispositions of the assets of Matchlogic, and (d) accurately and fairly reflect
the basis for the Financial Statements.
2.22.2 Matchlogic has devised and maintains a system
of internal accounting controls sufficient to provide reasonable assurances
that (a) transactions are executed in accordance with management's general or
specific authorization; (b) transactions are recorded as necessary (i) to
permit preparation of financial statements in conformity with generally
accepted accounting principles or any other criteria applicable to such
statements, and (ii) to maintain accountability for assets, and (c) the amount
recorded for assets on the books and records of Matchlogic is compared with the
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
3. REPRESENTATIONS AND WARRANTIES OF EXCITE AND SUB
Excite and Merger Sub hereby jointly and severally represent and
warrant as follows, that, except as set forth on the Excite Schedule of
Exceptions delivered to Matchlogic as Exhibit 3.0:
3.1 Organization and Good Standing.
3.1.1 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 Excite.
3.1.2 Merger Sub is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, 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 Excite.
3.2 Power, Authorization and Validity.
3.2.1 Excite and Merger Sub have the right, power, legal
capacity and authority to enter into and perform their obligations under this
Agreement, and all agreements to which
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Excite and Merger Sub are 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 and Merger Sub's Board of Directors.
3.2.2 No filing, authorization or approval, governmental or
otherwise, is necessary to enable Excite or Merger Sub to enter into, and to
perform their obligations under, this Agreement and the Excite Ancillary
Agreements, except for (a) the filing of the Certificate of Merger with the
Delaware Secretary of State, the filing of appropriate documents with the
relevant authorities of other states in which Excite and Merger Sub are
qualified to do business, if any; (b) such filings as may be required to comply
with federal and state securities laws; and (c) the approval by the sole
stockholder of Merger Sub of the transactions contemplated hereby.
3.2.3 This Agreement and the Excite Ancillary Agreements
are, or when executed by Excite and Merger Sub will be, valid and binding
obligations of Excite and Merger Sub 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; provided,
however, that the Certificate of Merger will not be effective until filed with
the Delaware Secretary of State.
3.2.4 Due Authorization. The Excite Common Stock to be
issued to Matchlogic Stockholders in connection with the Merger (including
Excite Common Stock issuable upon exercise of the Assumed Options and the
Assumed Warrants), when issued by Excite pursuant to the terms of this
Agreement, will be duly authorized, validly issued, fully paid and
non-assessable, will be issued in compliance with applicable federal and state
securities laws and will be free and clear of all liens, encumbrances and
adverse claims and, except as provided in the Matchlogic Affiliates Agreement
(as defined in Section 4.12 hereof), may be resold by Matchlogic affiliates in
accordance with Rule 145 of the Securities Act and may be freely resold,
without restriction, by non-affiliates of Matchlogic.
3.3 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, breach, impairment or violation of (a) any provision of the
Articles of Incorporation or Certificate of Incorporation of Excite or Merger
Sub, respectively, or the Bylaws of Excite or Merger Sub, all as currently in
effect, (b) in any material respect, any material instrument or contract to
which Excite or Merger Sub is a party or by which Excite or Merger Sub is
bound, or (c) any federal, state, local or foreign judgment, writ, decree,
order, statute, rule or regulation applicable to Excite or Merger Sub or their
assets or properties. Excite is not currently in material violation of any
agreement material to its business.
3.4 Disclosure. Excite has made available to Matchlogic an
investor disclosure package consisting of true and complete copies of (a) all
Forms 10-K, 10-Q and 8-K filed by
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Excite with the Securities and Exchange Commission (the "SEC") since its
Initial Public Offering on April 10, 1996 (the "IPO") and up to the date of
this Agreement, (b) any registration statement and amendments thereto filed
with the SEC by Excite prior to execution of this Agreement, and (c) all proxy
materials distributed to Excite's shareholders since the IPO and up to the date
of this Agreement (collectively, the "SEC REPORTS"). The SEC Reports
constitute all reports, registration statements, proxy statements and other
filings required to be made by Excite under the Securities Act or the Exchange
Act since the IPO. The SEC Reports (i) at the time filed, complied in all
material respects with applicable requirements of the Securities Act and the
Exchange Act, as the case may be, and (ii) did not at the time they were filed
(or if amended or superseded by a filing prior to the date of this Agreement,
then on the date of such filing) contain any untrue statement of a material
fact or fail to state a material fact required to be stated in such SEC Reports
or necessary in order to make the statements in such SEC Reports, in light of
the circumstances under which they were made, not misleading. Each of the
consolidated financial statements (including, in each case, any related notes)
contained in the SEC Reports, including any SEC Reports filed after the date of
this Agreement until the Closing, complied or will comply as to form in all
material respect with the applicable published rules and regulations of the SEC
with respect thereto, was prepared in accordance with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved (except as may be indicated in the notes to such financial statements
or, in the case of unaudited statements, as permitted by Form 10-Q of the SEC)
and fairly presented the consolidated financial position of Excite as of the
respective dates and the consolidated results of its operations and cash flows
for the periods indicated, except that the unaudited interim financial
statements were or are subject to normal and recurring year-end adjustments
which were not or are not expected to be material in amount.
3.5 Compliance with Laws. Excite and Merger Sub have complied in
all material respects with all applicable laws, ordinances, regulations, and
rules, and all orders, writs, injunctions, awards, judgments, and decrees
applicable to them or their assets, properties or business, the violation of
which would have a Material Adverse Effect on Excite or Merger Sub, as the case
may be. Excite and Merger Sub have received all permits and approvals from,
and have made all filings with, third parties, including government agencies
and authorities, that are necessary in connection with their present business.
To Excite's and Merger Sub's knowledge, there are no legal or administrative
proceedings or investigations pending or threatened, that, if enacted or
determined adversely to them, would result in any Material Adverse Effect;
provided that Excite itself is not a party to any such proceeding or
investigation.
3.6 Corporate Documents of Matchlogic. Excite and its legal
counsel have had an opportunity to examine all documents and information listed
in the Matchlogic Schedule of Exceptions or other Exhibits called for by this
Agreement.
3.7 No Brokers. Excite and Merger Sub are not obligated for the
payment of fees or expenses of any investment banker, broker or finder in
connection with the origin, negotiation or execution of this Agreement or the
Excite Ancillary Agreements or in connection with any transaction contemplated
hereby or thereby.
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4. MATCHLOGIC AND PRINCIPAL SHAREHOLDER PRECLOSING COVENANTS
During the period from the date of this Agreement until the Effective
Time, Matchlogic and each of the Principal Stockholders for purpose of Sections
4.4 and 4.10 only, covenant and agree as follows:
4.1 Advice of Changes. Matchlogic will promptly advise Excite in
writing (a) of any event occurring subsequent to the date of this Agreement
that would render any representation or warranty of Matchlogic contained in
this Agreement, if made on or as of the date of such event or the Closing Date,
untrue or inaccurate in any material and adverse respect and (b) of any
material adverse change in Matchlogic's business, results of operations or
financial condition. The absence of the occurrence of any such event or
material adverse change, however, is not a condition to Excite's obligation to
close.
4.2 Maintenance of Business. Matchlogic will use its best efforts
to carry on and preserve its business and its relationships with customers,
suppliers, employees and others in substantially the same manner as it has
prior to the date hereof. If Matchlogic becomes aware of a material
deterioration in the relationship with any material customer, supplier or key
employee, it will promptly bring such information to the attention of Excite in
writing and, if requested by Excite, will exert its best efforts to restore the
relationship. The absence of any such material deterioration shall not be a
condition to Excite's obligation to close.
4.3 Conduct of Business. Matchlogic will continue to conduct its
business and maintain its business relationships in the ordinary and usual
course and will not, without the prior written consent of Excite:
(a) borrow any money (other than pursuant to existing
credit or lease lines in the ordinary course of business);
(b) enter into any transaction not in the ordinary course
of business or which involves an expense or capital commitment by Matchlogic in
excess of Twenty Five Thousand Dollars ($25,000.00) or which obligates
Matchlogic for a period exceeding six (6) months;
(c) encumber or permit to be encumbered any of its assets
or grant liens therein;
(d) dispose of any portion of its assets with a value
exceeding Twenty Five Thousand Dollars ($25,000);
(e) enter into any lease or contract for the purchase or
sale of any property, real or personal, except in the ordinary course of
business consistent with past practice;
(f) fail to maintain its equipment and other assets in
good working condition and repair according to the standards it has maintained
to the date of this Agreement, subject only to ordinary wear and tear;
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(g) except for Matchlogic's customary year-end employee
bonuses in respect of 1997 previously approved by the Board of Directors of
Matchlogic in an aggregate amount not to exceed 535,000.00, pay any bonus,
royalty, increased salary or special remuneration to any officer, employee or
consultant or agree to same or enter into any new employment, severance,
"golden parachute" or consulting agreement with any such person;
(h) change accounting methods;
(i) declare, set aside or pay any cash or stock dividend
or other distribution in respect of capital stock, or redeem or otherwise
acquire any of its capital stock;
(j) amend or terminate any contract, agreement or license
to which it is a party except those amended or terminated in the ordinary
course of business, consistent with past practice, and which are not material
in amount or effect;
(k) lend any amount to any person or entity, other than
advances for travel and expenses which are incurred in the ordinary course of
business consistent with past practice, not material in amount and documented
by receipts for the claimed amount;
(l) guarantee or act as a surety for any obligation
except for the endorsement of checks and other negotiable instruments in the
ordinary course of business, consistent with past practice, which are not
material in amount;
(m) waive or release any material right or claim except
in the ordinary course of business, consistent with past practice;
(n) issue or sell any shares of its capital stock of any
class (except upon the exercise of a convertible security, option or warrant
currently outstanding), or any other of its securities, or issue or create any
warrants (other than the warrant to be issued to Silicon Valley Bank as of the
Effective Time), obligations, subscriptions, options, convertible securities,
or other commitments to issue shares of capital stock, or (except pursuant to
contractual obligations currently in existence) accelerate the vesting of any
outstanding option or other security;
(o) split or combine the outstanding shares of its
capital stock of any class or enter into any recapitalization affecting the
number of outstanding shares of its capital stock of any class or affecting any
other of its securities;
(p) merge, consolidate or reorganize with, or acquire any
entity;
(q) amend its Certificate of Incorporation or Bylaws;
(r) license any of its technology or intellectual
property except in the ordinary course of business consistent with past
practice;
(s) agree to any audit assessment by any tax authority or
file any federal or state income or franchise tax return unless copies of such
returns have been delivered to Excite for its review and approved by Excite
prior to filing;
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(t) change any insurance coverage or issue any
certificates of insurance;
(u) hire or terminate any employee or consultant, except
in the ordinary course of business; or
(v) adopt or amend any employee benefit plan.
4.4 Stockholders Approval. Matchlogic will obtain the written
consent of the Matchlogic Stockholders at the earliest practicable date
approving this Agreement, the Matchlogic Ancillary Agreements, the Merger and
related matters, which approval will be unanimously recommended by Matchlogic's
Board of Directors (to the extent consistent with their applicable fiduciary
duties) and management.
4.5 Proxy Statement. Matchlogic will send to the Matchlogic
Stockholders in a timely manner, for the purpose of considering and executing a
written consent approving the Merger all information relating to its business
or operations necessary for inclusion in the Stockholder Materials to satisfy
all requirements of applicable state and federal securities laws. Matchlogic
and Excite each shall be solely responsible for any statement, information or
omission in the Stockholder Materials relating to it or its affiliates based
upon written information furnished by it. Matchlogic will not provide or
publish to the Matchlogic Stockholders any material concerning it or its
affiliates that violates the Securities Act or the United States Securities
Exchange Act of 1934, as amended, (the "EXCHANGE ACT") with respect to the
transactions contemplated hereby.
4.6 Regulatory Approvals. Matchlogic will execute and file, or
join in the execution and filing, of any application or other document that may
be necessary in order to obtain the authorization, approval or consent of any
governmental body, federal, state, local or foreign which may be reasonably
required, in connection with the consummation of the transactions contemplated
by this Agreement. Matchlogic will use its best efforts to obtain all such
authorizations, approvals and consents.
4.7 Necessary Consents. Matchlogic will use its best efforts to
obtain such written consents and take such other actions as may be necessary or
appropriate in addition to those set forth in Section 4.6 to allow the
consummation of the transactions contemplated hereby and to allow Excite to
carry on Matchlogic's business after the Closing.
4.8 Litigation. Matchlogic will notify Excite in writing promptly
after learning of any actions, suits, proceedings or investigations by or
before any court, board or governmental agency, initiated by or against it, or
known by it to be threatened against it. The absence of any such actions,
suits, proceedings or investigations shall not be a condition to Excite's
obligations to close hereunder.
4.9 Access to Information. Until the Closing, Matchlogic will
allow Excite and its agents reasonable access to the files, books, records and
offices of Matchlogic, including, without limitation, any and all information
relating to Matchlogic's taxes, commitments, contracts, leases, licenses, and
real, personal and intangible property and financial condition.
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Matchlogic will cause its accountants to cooperate with Excite and its agents
in making available all financial information reasonably requested, including
without limitation the right to examine all working papers pertaining to all
financial statements prepared or audited by such accountants.
4.10 No Other Negotiations. From the date hereof until the earlier
of termination of this Agreement or consummation of the Merger, Matchlogic will
not, and will not authorize or permit any officer, director, employee or
affiliate of Matchlogic, or any other person, on its behalf to, directly or
indirectly, solicit or encourage any offer from any party or, subject to the
fiduciary obligations of its directors and officers under the Delaware General
Corporation Law, consider any inquiries or proposals received from any other
party, participate in any negotiations regarding, or furnish to any person any
information with respect to, or otherwise cooperate with, facilitate or
encourage any effort or attempt by any person (other than Acquirer), concerning
the possible disposition of all or any substantial portion of Matchlogic's
business, assets or capital stock by merger, sale or any other means.
Matchlogic will promptly notify Acquirer orally and in writing of any such
inquiries or proposals.
4.11 Satisfaction of Conditions Precedent. Matchlogic will use its
best efforts to satisfy or cause to be satisfied all the conditions precedent
which are set forth in Section 8, and Matchlogic will use its best efforts to
cause the transactions contemplated by this Agreement to be consummated, and,
without limiting the generality of the foregoing, to obtain all consents and
authorizations of third parties and to make all filings with, and give all
notices to, third parties that may be necessary or reasonably required on its
part in order to effect the transactions contemplated hereby.
4.12 Matchlogic Affiliates Agreements. To ensure that the issuance
of Excite Common Stock in the Merger complies with the Securities Act and that
the Merger will be accounted for as a "pooling of interests," concurrently with
the execution of this Agreement, Matchlogic will deliver to Excite a letter
identifying all persons who are, in Matchlogic's reasonable judgment,
"affiliates" of Matchlogic at the time this Agreement is executed, including,
all (i) officers, (ii) directors and (iii) all persons or entities who own ten
percent (10%) or greater of Matchlogic Capital Stock, assuming in that
calculation that all Matchlogic Options and Matchlogic Warrants have been
exercised (the "SIGNIFICANT STOCKHOLDERS"). Matchlogic will provide Excite
with all information and documents needed to evaluate this list for compliance
with securities laws. Matchlogic will use its best efforts to cause each of
its affiliates to deliver to Excite, prior to Closing, a written agreement (the
"MATCHLOGIC AFFILIATES AGREEMENT"), substantially in the form of Exhibit 4.12.
4.13 Matchlogic Stockholder Representations. To ensure that the
Merger will qualify as a reorganization for federal income tax purposes,
Matchlogic will cause each of its affiliates, as defined in Section 4.12 above,
to execute, at or before the Closing: (a) the Matchlogic Affiliates Agreement
which contains a representation that such stockholder has no present plan or
intention to sell or otherwise dispose of more than fifty percent (50%) of the
shares of Excite Common Stock which the stockholder receives in the Merger and
making such other representations as may be reasonably requested by Excite, its
accountants or its attorneys for the
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purpose of ensuring such tax treatment, and (b) a "continuity of interest"
certificate substantially in the form of Exhibit 4.13 hereof.
4.14 Matchlogic Dissenting Shares. As promptly as practicable
after the date of the Matchlogic Stockholders' Meeting and prior to the Closing
Date, Matchlogic shall furnish Excite with the name and address of each
Matchlogic Dissenting Stockholder and the number of Matchlogic Dissenting
Shares owned by such Matchlogic Dissenting Stockholder
4.15 Pooling Accounting. Matchlogic shall use its best efforts to
cause the business combination to be effected by the Merger to be accounted for
as a pooling of interests. Matchlogic shall use its best efforts to cause its
affiliates not to take any action that would adversely affect the ability of
Excite to account for the business combination to be effected by the Merger as
a pooling of interests.
4.16 Blue Sky Laws. Matchlogic shall use its best efforts to
assist Excite to the extent necessary to comply with the securities and Blue
Sky laws of all jurisdictions which are applicable in connection with the
Merger.
4.17 Investment Representation Letters and Investor Suitability
Questionnaires. Matchlogic shall request each of its stockholders to complete
an Investor Suitability Questionnaire and to sign an Investor Representation
Letter, to be provided by Excite, prior to Closing.
5. EXCITE AND MERGER SUB PRECLOSING COVENANTS
During the period from the date of this Agreement until the Effective
Time, Excite and Merger Sub covenant and agree as follows:
5.1 Advice of Changes. Excite and Merger Sub will promptly advise
Matchlogic in writing (a) of any event occurring subsequent to the date of this
Agreement that would render any representation or warranty of Excite or Merger
Sub contained in this Agreement, if made on or as of the date of such event or
the Closing Date, untrue or inaccurate in any material and adverse respect and
(b) of any material adverse change in Excite's or Merger Sub's business,
results of operations or financial condition. The absence of the occurrence of
any such event or material adverse change, however, is not a condition to
Matchlogic's obligation to close.
5.2 Regulatory Approvals. Excite and Merger Sub will execute and
file, or join in the execution and filing, of any application or other document
that may be necessary in order to obtain the authorization, approval or consent
of any governmental body, federal, state, local or foreign, which may be
reasonably required, in connection with the consummation of the transactions
contemplated by this Agreement. Each of Excite and Merger Sub will use its
best efforts to obtain all such authorizations, approvals and consents.
5.3 Satisfaction of Conditions Precedent. Each of Excite and
Merger Sub will use its best efforts to satisfy or cause to be satisfied all
the conditions precedent which are set forth in Section 7, and each of Excite
and Merger Sub will use its best efforts to cause the transactions
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contemplated by this Agreement to be consummated and, without limiting the
generality of the foregoing, to obtain all consents and authorizations of third
parties and to make all filings with, and give all notices to, third parties
that may be necessary or reasonably required on its part in order to effect the
transactions contemplated hereby.
5.4 Excite Affiliates Agreements. To ensure that the Merger will
be accounted for as a "pooling of interests," Excite will cause each of its
affiliates, as defined in Section 4.11 above, to sign and deliver to Excite a
written agreement (the "EXCITE AFFILIATES AGREEMENT"), in the form of Exhibit
5.4, providing that such person will make no disposition of Excite Common Stock
(a) in the thirty (30) day period prior to the Effective Time or (b) after the
Effective Time until Excite shall have publicly released a report including the
combined financial results of Excite and Matchlogic for a period of at least
thirty (30) days of combined operations of Excite and Matchlogic.
5.5 Blue Sky Laws. Excite shall take such steps as may be
necessary to comply with the securities and Blue Sky laws of all jurisdictions
which are applicable in connection with the Merger.
5.6 Pooling Accounting. Excite shall use its best efforts to
cause the business combination to be effected by the Merger to be accounted for
as a pooling of interests. Excite shall use its best efforts to cause its
affiliates not to take any action that would adversely affect the ability of
Excite to account for the business combination to be effected by the Merger as
a pooling of interests.
5.7 Employee Matters. Subject to compliance with pooling of
interests accounting treatment and the requirements of any applicable laws,
employees of Matchlogic who became employees of Excite at or after the
Effective Time will be permitted to participate in those employee benefit plans
sponsored by Excite in which similarly situated Excite employees participate
subject to the eligibility and other provisions of such Excite employee benefit
plans; provided, however, nothing contained herein shall require Excite
following the Merger to offer continued employment to any Matchlogic employee.
6. CLOSING MATTERS
6.1 The Closing. Subject to termination of this Agreement as
provided in Section 9 below, the Closing will take place at the offices of
Fenwick & West LLP, Two Palo Alto Square, Palo Alto, California the second
business day following the satisfaction of all of the conditions set forth in
Sections 7 and 8 hereof (the "CLOSING"), or at such other place, time and date
as Matchlogic and Excite may mutually select (the "CLOSING DATE").
Concurrently with the Closing, an Certificate of Merger will be filed in the
office of the Delaware Secretary of State. The Certificate of Merger shall
provide that the Merger will become effective upon filing.
6.2 Exchange of Certificates.
6.2.1 As of the Effective Time, all shares of Matchlogic
Capital Stock that are outstanding immediately prior thereto will, by virtue of
the Merger and without further action,
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cease to exist and will be converted into the right to receive from Excite the
number of shares of Excite Common Stock determined as set forth in Section
1.1.1, subject to Sections 1.1.4, 1.1.5, 1.2 and 1.3.
6.2.2 Each holder of shares of Matchlogic Capital Stock
that are not Dissenting Shares will surrender the certificate(s) for such
shares (the "MATCHLOGIC CERTIFICATES"), duly endorsed as requested by Excite,
to Excite's counsel for cancellation for Excite's records. Promptly after the
Effective Time and receipt of such Matchlogic Certificates, Excite's counsel
will forward a letter of instruction to BankBoston, N.A., acting as the
transfer agent for Excite, (the "EXCHANGE AGENT") and the Exchange Agent will
issue to each tendering holder a certificate for the number of shares of Excite
Common Stock to which such holder is entitled pursuant to Section 1.1.1 hereof,
and Excite will distribute any cash payable under Section 1.2.
6.2.3 No dividends or distributions payable to holders of
record of Excite Common Stock after the Effective Time, or cash payable in lieu
of fractional shares, will be paid to the holder of any unsurrendered
Matchlogic Certificate(s) until the holder of the Matchlogic Certificate(s)
surrenders such Matchlogic Certificate(s), or if such certificates are lost,
stolen or destroyed, provides an indemnity reasonably acceptable to Excite.
Subject to the effect, if any, of applicable escheat and other laws, following
surrender of any Matchlogic Certificate, there will be delivered to the person
entitled thereto, without interest, the amount of any dividends and
distributions therefor paid with respect to Excite Common Stock so withheld as
of any date subsequent to the Effective Time and prior to such date of
delivery.
6.2.4 All Excite Common Stock delivered upon the surrender
of Matchlogic Capital Stock in accordance with the terms hereof will be deemed
to have been delivered in full satisfaction of all rights pertaining to such
Matchlogic Capital Stock. There will be no further registration of transfers
on the stock transfer books of Matchlogic or its transfer agent of the
Matchlogic Capital Stock. If, after the Effective Time, Matchlogic
Certificates are presented for any reason, they will be canceled and exchanged
as provided in this Section 6.2.
6.2.5 Until certificates representing Matchlogic Capital
Stock outstanding prior to the Merger are surrendered pursuant to Section 6.2.2
above, such certificates will be deemed, for all purposes, to evidence
ownership of the number of shares of Excite Common Stock into which the
Matchlogic Capital Stock will have been converted, reduced by the number of
shares withheld as Escrow Shares.
6.2.6 Certificates which are not presented to Excite's
Exchange Agent within one (1) year after the Closing shall be canceled and the
holder thereof will no longer be entitled to receive any Excite securities in
consideration thereof.
6.3 Assumption of Matchlogic Options and Matchlogic Warrants.
Promptly after the Effective Time, Excite will notify in writing each holder of
an Matchlogic Option or Matchlogic Warrant of the assumption of such Matchlogic
Option or Matchlogic Warrant by Excite, and the number of shares of Excite
Common Stock that are then subject to such option or warrant, as the case may
be, and the exercise price of such option, as determined pursuant to Section
1.1 hereof.
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7. CONDITIONS TO OBLIGATIONS OF MATCHLOGIC
Matchlogic's obligations hereunder are subject to the fulfillment or
satisfaction, on and as of the Closing, of each of the following conditions
(any one or more of which may be waived by Matchlogic, but only in a writing
signed by Matchlogic):
7.1 Accuracy of Representations and Warranties. The
representations and warranties of Excite and Merger Sub set forth in Section 3
shall continue to be true and accurate in all material respects as of the date
of this Agreement and Matchlogic shall receive a certificate to such effect
executed by each of Excite's and Merger Sub's Chief Financial Officer.
7.2 Covenants. Excite shall have performed and complied in all
material respects with all of its covenants contained in Section 5 on or before
the Closing, and Matchlogic shall receive a certificate to such effect signed
by each of Excite's and Merger Sub's Chief Financial Officer.
7.3 Compliance with Law. There shall be no order, decree, or
ruling by any court or governmental agency or threat thereof, or any other fact
or circumstance, which would prohibit or render illegal the transactions
contemplated by this Agreement.
7.4 Government Consents. There shall have been obtained at or
prior to the Closing Date such permits or authorizations, and there shall have
been taken such other action, as may be required to consummate the Merger by
any regulatory authority having jurisdiction over the parties and the actions
herein proposed to be taken, including but not limited to, requirements under
applicable federal and state securities laws.
7.5 Opinion of Excite's Counsel. Matchlogic shall have received
from counsel to Excite an opinion substantially in the form of Exhibit 7.5.
7.6 Stockholder Approval. The principal terms of this Agreement
and the Certificate of Merger shall have been approved and adopted by
Matchlogic Stockholders, as required by applicable law and Matchlogic's
Certificate of Incorporation and Bylaws.
7.7 NASDAQ Listing. Excite shall have obtained approval for
listing on the NASDAQ National Market of all shares of Excite Common Stock
issuable in connection with the Merger.
7.8 Board Representation. For a period of two (2) years following
the Effective Time, Excite shall invite Xxxx Xxxxxx and Xxxx Xxxxxxxx (each an
"OBSERVER"), to attend all meetings of the Board in a non-voting capacity and,
in this respect, shall give each Observer copies of all notices, minutes,
consents and other Board members' materials that it provides to all of its
directors; provided, however, (i) that Excite reserves the right to withhold
any information and to exclude either or both Observers from any meeting of
Excite's Board, or any portion thereof, as is reasonably determined by the
chairman of the Board or a majority of the members of the Board to be necessary
for purposes of confidentiality, competitive factors, attorney-client privilege
or other reasonable purposes; and (ii) that in no event shall the failure to
provide to
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either or both Observers the notice described above invalidate in any way any
action taken at a meeting of the Board. In addition, each Observer agrees to
hold in confidence with respect to all information so provided and not use or
disclose any confidential information provided to or learned in connection with
the rights granted under this Section 7.9 other than for purposes reasonably
related to such Observer's interest as a shareholder of Excite, and not to the
detriment of, Excite.
7.9 Tax Certificates. Matchlogic shall have received the tax
certificate executed by Excite's Chief Financial Officer substantially in the
form of Exhibit 1.6A hereto.
7.10 Tax Opinion. Matchlogic's Stockholders shall have received a
legal opinion of Xxxxxx Godward LLP dated as of the Closing Date, to the effect
that the merger will constitute a reorganization within the meaning of Section
368 of the Code (it being understood that, in rendering such opinion, such
counsel may rely upon the tax certificates executed by the Chief Financial
Officers of Excite and Matchlogic in the forms of Exhibits 1.6A-B and the
Continuity of Interest Certificates referred to in Section 4.13).
8. CONDITIONS TO OBLIGATIONS OF EXCITE
The obligations of Excite and Merger Sub hereunder are subject to the
fulfillment or satisfaction on, and as of the Closing, of each of the following
conditions (any one or more of which may be waived by Excite, but only in a
writing signed by Excite):
8.1 Accuracy of Representations and Warranties. The
representations and warranties of Matchlogic set forth in Section 2 shall
continue to be true and accurate in all material respects as of the date of
this Agreement and Excite shall receive a certificate to such effect executed
by Matchlogic's Chief Executive Officer.
8.2 Covenants. Matchlogic shall have performed and complied in
all material respects with all of its covenants contained in Section 4 on or
before the Closing, and Excite shall receive a certificate to such effect
signed by Matchlogic's Chief Executive Officer.
8.3 Compliance with Law. There shall be no order, decree, or
ruling by any court or governmental agency or threat thereof, or any other fact
or circumstance, which would prohibit or render illegal the transactions
contemplated by this Agreement.
8.4 Government Consents. There shall have been obtained at or
prior to the Closing Date such permits or authorizations, and there shall have
been taken such other action, as may be required to consummate the Merger by
any regulatory authority having jurisdiction over the parties and the actions
herein proposed to be taken, including but not limited to, requirements under
applicable federal and state securities laws.
8.5 Opinion of Matchlogic's Counsel. Excite shall have received
from counsel to Matchlogic, an opinion substantially in the form of Exhibit
8.5.
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8.6 Consents. Excite shall have received duly executed copies of
all material third-party consents, approvals, assignments, waivers,
authorizations or other certificates contemplated by this Agreement or the
Matchlogic Schedule of Exceptions or as otherwise set forth on Exhibit 8.6
hereto, except for such consents and approvals thereof as Excite and Matchlogic
shall have agreed shall not be obtained, as contemplated by the Excite Schedule
of Exceptions.
8.7 Requisite Approvals. The principal terms of this Agreement
and the Certificate of Merger shall have been approved and adopted by the
holders of no less than ninety five percent (95%) of Matchlogic Capital Stock
required under the Certificate of Incorporation, bylaws and applicable laws and
by the unanimous approval of Matchlogic's Board of Directors.
8.8 Dissenting Shares. There shall be no more than five percent
(5%) Dissenting Shares.
8.9 Affiliates Agreements and Matchlogic Stockholder
Representations. Matchlogic shall have delivered to Excite the letter required
by Section 4.12 naming all persons who are Significant Stockholders for
purposes of Section 4.12 and all persons who are "affiliates" of Matchlogic for
purposes of Rule 145 under the Securities Act, and each such person shall have
executed and delivered an Matchlogic Affiliates Agreement to Excite in
accordance with Sections 4.12.
8.10 Pooling. Excite's accounting firm, Ernst & Young LLP
("EXCITE'S AUDITORS"), shall have received from Matchlogic and such relevant
officers, directors and/or employees of Matchlogic, such certificates, letters
and other relevant due diligence information, in form and substance
satisfactory to Excite's Auditors, to allow Excite's Auditors to determine that
there are no facts concerning Matchlogic that would preclude Excite from
accounting for the Merger as a pooling of interests, and Excite shall have
received either: (i) from Excite's Auditors a letter, in form and substance
satisfactory to Excite, regarding the appropriateness of "pooling of interests"
accounting treatment for the Merger under XXX Xx. 00, if closed and consummated
in accordance with this Agreement, or (ii) a determination by the SEC that
pooling- of-interests accounting treatment for the Merger is appropriate. Such
letter from Excite's Auditors shall be issued to Excite in final form no later
than two (2) days prior to the Closing. The SEC shall not have otherwise
disapproved of the treatment by Excite of this transaction as a "pooling of
interests" for accounting purposes.
8.11 Resignation of Directors and Officers. The directors and
executive officers of Matchlogic in office immediately prior to the Effective
Time of the Merger shall have resigned as directors and executive officers of
the Surviving Corporation effective as of the Effective Time of the Merger.
8.12 Investor Representation Letters and Investor Suitability
Questionnaires. Excite shall have received completed and executed Investor
Representation Letters and Investor Suitability Questionnaires from each
Matchlogic Stockholder which are reasonably satisfactory to Excite.
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8.13 Tax-Free Reorganization. Excite shall have received the tax
certificate executed by Matchlogic's Chief Financial Officer in the form of
Exhibit 1.6B and the Matchlogic Affiliates Agreement executed by each affiliate
in the form of Exhibit 4.11, which are all reasonably satisfactory to Excite.
8.14 Termination of Rights. Any registration rights, rights of
refusal, rights to any liquidation preference, or redemption rights of any
Matchlogic Stockholder shall have been terminated or waived as of the Closing.
9. TERMINATION OF AGREEMENT
9.1 Prior to Closing.
9.1.1 This Agreement may be terminated at any time prior to
the Closing by the mutual written consent of each of the parties hereto.
9.1.2 Unless otherwise agreed by the parties hereto, this
Agreement will be terminated if the Closing shall not have occurred on or
before March 15, 1998.
9.2 At the Closing. At or prior to the Closing, this Agreement
may be terminated and abandoned:
9.2.1 By Excite if any of the conditions precedent to
Excite's obligations set forth in Section 8 above have not been fulfilled or
waived at and as of the Closing; or
9.2.2 By Matchlogic if any of the conditions precedent to
Matchlogic's obligations set forth in Section 7 above have not been fulfilled
or waived at and as of the Closing.
Any termination of this Agreement under this Section
9.2 will be effective by the delivery of notice of the terminating party to the
other party hereto.
9.3 No Liability. Any termination of this Agreement pursuant to
this Section 9 will be without further obligation or liability upon any party
in favor of the other party hereto other than except as set forth herein and
the obligations provided in Sections 10.2, 11.8 and 11.16 and in the
Nondisclosure Agreement between Matchlogic and Excite dated March 27,1997, as
amended (the "NON-DISCLOSURE AGREEMENT"), which will survive termination of
this Agreement; provided, however, that nothing herein will limit the
obligation of Matchlogic and Excite to use their best efforts to cause the
Merger to be consummated, as set forth in Sections 4.10 and 5.3 hereof,
respectively.
10. SURVIVAL OF REPRESENTATIONS, INDEMNIFICATION AND REMEDIES, CONTINUING
COVENANTS
10.1 Survival of Representations. All representations, warranties
and covenants of Matchlogic, Excite and Merger Sub contained in this Agreement
will survive the Effective Time and remain operative and in full force and
effect, regardless of any investigation made by or on
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behalf of the parties to this Agreement, until the end of the Escrow Period,
whereupon such representations, warranties and covenants will expire (except
for covenants that by their terms survive for a longer period), provided
however, that representations, warranties and covenants involving intentional
fraud or willful misconduct shall survive the Closing without the limitations
of subsections (a) or (b) above.
10.2 Agreement to Indemnify.
10.2.1 Subject to the limitations set forth in this Section
10, Matchlogic and its Stockholders will indemnify, defend and hold harmless
Excite, its affiliates, officers, directors, employees, consultants and agents
(hereinafter referred to individually as an "INDEMNIFIED PERSON" and
collectively as "INDEMNIFIED PERSONS") from and against any and all claims,
liability, damages and/or costs including, but not limited to, attorneys fees
(hereinafter referred to as "DAMAGES"):
(a) arising out of any misrepresentation or
breach of or default in connection with any of the representations, warranties
and covenants given or made by Matchlogic and the Principal Stockholders in
this Agreement or in any certificate, document or instrument delivered by or on
behalf of Matchlogic pursuant hereto; and
(b) with respect to each Matchlogic Stockholder
and only to the extent of such Stockholder's pro rata share of the Escrow
Shares, all Damages resulting from any failure of such Matchlogic Stockholder
to have good, valid and marketable title to the issued and outstanding
Matchlogic Capital Stock held by such stockholder, free and clear of all liens,
claims, pledges, options, adverse claims, assessments or charges of any nature
whatsoever, or to have full right, capacity and authority to vote such
Matchlogic Capital Stock in favor of the Merger and the other transactions
contemplated by the Certificate of Merger.
10.2.2 Other than for liability for breaches of
representations, warranties, and covenants involving intentional fraud or
willful misconduct, each Matchlogic Stockholder's (including each Principal
Stockholder) maximum individual liability shall be his, her or its pro rata
share of the Escrow Shares. The remedies set forth in this Section 10.2 shall
be the exclusive remedies of Excite and the other Indemnified Persons hereunder
against any Matchlogic Stockholder.
10.2.3 Excite will indemnify, defend and hold harmless
Matchlogic, its affiliates, stockholders, officers, directors, employees,
consultants and agents from any and all claims, liability, damages and/or costs
(including, but not limited to, attorneys fees) arising from Excite's breach of
any of the representations and warranties set forth in Section 3 of this
Agreement.
10.3 Limitation on Indemnity Obligations of Matchlogic
Stockholders. Notwith- standing any provisions of this Agreement to the
contrary and notwithstanding the fact that (i) the Principal Stockholders and
Xxxx Xxxxxxxx are parties to this Agreement and are making representations and
warranties herein and (ii) that non-Principal Stockholders are not parties to
this Agreement are not making representations and warranties herein, all
obligations of Matchlogic Stockholders (whether Principal or non-Principal)
shall be limited solely to such
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Matchlogic Stockholder's pro-rata share of the Escrow Shares, subject to the
following sentence. In addition to such Matchlogic Stockholder's pro rata
share of the Escrow Shares, each Matchlogic Stockholder shall be fully liable
to the Indemnified Persons for any Damages relating to such Matchlogic
Stockholder's willful misconduct or intentional fraud in connection with the
representations and warranties set forth herein and the transactions
contemplated under this Agreement and in connection with the Merger without
limitation.
11. MISCELLANEOUS
11.1 Governing Law. The internal laws of the State of Delaware
(irrespective of its conflict of law principles) will govern the validity of
this Agreement, the construction of its terms, and the interpretation and
enforcement of the rights and duties of the parties hereto.
11.2 Assignment; Binding Upon Successors and Assigns. Neither
party hereto may assign any of its rights or obligations hereunder without the
prior written consent of the other party hereto and any attempt to do so will
be void. This Agreement will be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
11.3 Severability. If any provision of this Agreement, or the
application thereof, will for any reason and to any extent be invalid or
unenforceable, the remainder of this Agreement and application of such
provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further
agree to replace such void or unenforceable provision of this Agreement with a
valid and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of the void or unenforceable provision.
11.4 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be an original as regards any party whose
signature appears thereon and all of which together will constitute one and the
same instrument. This Agreement will become binding when one or more
counterparts hereof, individually or taken together, will bear the signatures
of all parties reflected hereon as signatories.
11.5 Other Remedies. Except as otherwise provided herein, any and
all remedies herein expressly conferred upon a party will be deemed cumulative
with and not exclusive of any other remedy conferred hereby or by law on such
party, and the exercise of any one remedy will not preclude the exercise of any
other.
11.6 Amendment and Waivers. Any term or provision 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 by a writing signed by the party to be
bound thereby. The waiver by a party of any breach hereof or default in the
performance hereof will not be deemed to constitute a waiver of any other
default or any succeeding breach or default. The Agreement may be amended by
the parties hereto at any time before or after approval of the Matchlogic
Stockholders; but, after such approval, no amendment
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will be made which by applicable law requires the further approval of the
Matchlogic Stockholders without obtaining such further approval.
11.7 No Waiver. The failure of any party to enforce any of the
provisions hereof will not be construed to be a waiver of the right of such
party thereafter to enforce such provisions.
11.8 Expenses. In the event that the transaction is not
consummated, each party to this Agreement will be responsible for its own fees
and expenses in connection with the proposed Merger. In the event that the
Merger is consummated, Excite will be responsible for its own fees and expenses
and for Matchlogic's reasonable fees and expenses in connection with the
transaction, including reasonable fees and costs of its counsel and
accountants.
11.9 Attorneys' Fees. Should suit be brought to enforce or
interpret any part of this Agreement, the prevailing party will be entitled to
recover, as an element of the costs of the suit, and not as damages, reasonable
attorneys' fees, including without limitation, costs, expenses and fees on any
appeal.
11.10 Notices. Any notice or other communication required or
permitted to be given under this Agreement will be in writing, will be
delivered personally, by registered or certified mail, postage prepaid, by
telecopy or by nationally recognized courier service, and will be deemed given
upon delivery, if delivered personally, or three days after deposit in the
mails, if mailed, to the following addresses:
(i) If to Excite:
Excite, Inc.
000 Xxxxxxxx
Xxxxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxx, Esq.
With a copy to:
Xxxx X. Xxxxxxxx, Esq.
Xxxx X. Xxxxxxxx, Esq.
Fenwick & West LLP
0 Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
(ii) If to Matchlogic:
Matchlogic, Inc.
Boulder, CO
Attention: President
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With a copy to:
Xxxxx X. Xxxxxxx, Esq.
Xxxxxx Godward LLP
0000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
or to such other address as a party may have furnished to the other parties in
writing pursuant to this Section 11.10.
11.11 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. A reference to a Section or
an exhibit will mean a Section in, or exhibit to, this Agreement unless
otherwise explicitly set forth. The titles and headings herein are for
reference purposes only and will not in any manner limit the construction of
this Agreement which will be considered as a whole.
11.12 No Joint Venture. Nothing contained in this Agreement will be
deemed or construed as creating a joint venture or partnership between any of
the parties hereto. No party is by virtue of this Agreement authorized as an
agent, employee or legal representative of any other party. No party will have
the power to control the activities and operations of any other and their
status is, and at all times, will continue to be, that of independent
contractors with respect to each other. No party will have any power or
authority to bind or commit any other. No party will hold itself out as having
any authority or relationship in contravention of this Section.
11.13 Further Assurances. Each party agrees to cooperate fully with
the other parties and to execute such further instruments, documents and
agreements and to give such further written assurances as may be reasonably
requested by any other party to evidence and reflect the transactions described
herein and contemplated hereby and to carry into effect the intents and
purposes of this Agreement.
11.14 Absence of Third Party Beneficiary Rights. No provisions of
this Agreement are intended, nor will be interpreted, to provide or create any
third party beneficiary rights or any other rights of any kind in any client,
customer, affiliate, stockholder, partner or any party hereto or any other
person or entity unless specifically provided otherwise herein, and, except as
so provided, all provisions hereof will be personal solely between the parties
to this Agreement, except that the Matchlogic Stockholders may enforce the
representations, warranties and indemnities of Excite and Merger Sub made
hereunder during the period that such representations and warranties survive as
provided in Section 10.1 hereof.
11.15 Public Announcement. Upon execution of the Agreement by both
parties, and until the consummation of the Merger, all press releases and other
public and private communications shall be made by the parties only with the
prior mutual written consent of Matchlogic and Excite, except that Excite may
make such disclosures as are required by
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applicable law, provided, however, that a copy of such disclosure shall first
be submitted to Matchlogic within a reasonable time period prior to the
dissemination thereof.
11.16 Confidentiality. Excite and Matchlogic each recognize that
they have received and will receive confidential information concerning the
other during the course of the Merger negotiations and preparations.
Accordingly, Excite and Matchlogic each agree (a) to use its respective best
efforts to prevent the unauthorized disclosure of any confidential information
concerning the other that was or is disclosed during the course of such
negotiations and preparations, and is clearly designated in writing as
confidential at the time of disclosure, (b) to not make use of or permit to be
used any such confidential information other than for the purpose of
effectuating the Merger and related transactions, and (c) comply fully with the
terms of the Non Disclosure Agreement. The obligations of this section will
not apply to information that (i) is or becomes part of the public domain, (ii)
is disclosed by the disclosing party to third parties without restrictions on
disclosure, (iii) is received by the receiving party from a third party without
breach of a nondisclosure obligation to the other party or (iv) is required to
be disclosed by law. If this Agreement is terminated, all copies of documents
containing confidential information shall be returned by the receiving party to
the disclosing party.
11.17 Entire Agreement. This Agreement and the exhibits hereto
constitute the entire understanding and agreement of the parties hereto with
respect to the subject matter hereof and supersede all prior and
contemporaneous agreements or understandings, inducements or conditions,
express or implied, written or oral, between the parties other than the
Nondisclosure Agreement between Matchlogic and Excite dated March 27,1997. The
express terms hereof control and supersede any course of performance or usage
of the trade inconsistent with any of the terms hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
EXCITE, INC. MATCHLOGIC, INC.
("EXCITE") ("MATCHLOGIC")
By: /S/ Xxxxxx X. Xxxx By: /S/ Xxxx Xxxxxx
-------------------------------- --------------------------------
Name: Xxxxxx X. Xxxx Name: Xxxx Xxxxxx
------------------------------ -----------------------------
Its: EVP - CFO Its: President and CEO
------------------------------- -------------------------------
XCITE MERGER CORPORATION
("MERGER SUB")
By: /S/ Xxxxxx X. Xxxx
--------------------------------
Name: Xxxxxx X. Xxxx
------------------------------
Its: President
-------------------------------
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WITH RESPECT TO SECTIONS 1.6, 2, 4.4, 4.10 AND 10 ONLY:
TL VENTURES III OFFSHORE L.P.
BY: TL VENTURES III OFFSHORE PARTNERS L.P.
ITS GENERAL PARTNER
BY: TL VENTURES III OFFSHORE LTD.,
ITS GENERAL PARTNER
By: /S/ Xxxx X. Xxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxx
------------------------------
Its: General Partner
-------------------------------
TL VENTURES III L.P.
BY: TL VENTURES III MANAGEMENT L.P.
ITS GENERAL PARTNER
BY: TL VENTURES III LLC,
ITS GENERAL PARTNER
By: /S/ Xxxx X. Xxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxx
------------------------------
Its: General Partner
-------------------------------
TL VENTURES III INTERFUND L.P.
BY: TL VENTURES III LLC,
ITS GENERAL PARTNER
By: /S/ Xxxx X. Xxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxx
------------------------------
Its: General Partner
-------------------------------
INTERNET CAPITAL GROUP, L.L.C.
By: /S/ Xxxxxxx X. Xxx
--------------------------------
Name: Xxxxxxx X. Xxx
------------------------------
Its: Managing Director
-------------------------------
[SIGNATURE PAGE FOR AGREEMENT AND PLAN OF REORGANIZATION]
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WITH RESPECT TO SECTIONS 1.6, 2, 4.4, 4.10 AND 10 ONLY:
SEQUEL LIMITED PARTNERSHIP
BY: SEQUEL LIMITED PARTNERS, L.L.C.,
GENERAL PARTNER
By:
--------------------------------
Name:
------------------------------
Its:
-------------------------------
SEQUEL EURO LIMITED PARTNERSHIP
BY: SEQUEL LIMITED PARTNERS, L.L.C.,
GENERAL PARTNER
By:
--------------------------------
Name:
------------------------------
Its:
-------------------------------
DATA STRATEGIES INC.
By: /S/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx
------------------------------
Its:
-------------------------------
WITH RESPECT TO SECTION 1.3 AND 7.9 ONLY:
XXXX XXXXXXXX
/S/ Xxxx Xxxxxxxx
-------------------------------
Signature
[SIGNATURE PAGE FOR AGREEMENT AND PLAN OF REORGANIZATION]
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LIST OF EXHIBITS AND SCHEDULES
Exhibit A Certificate of Merger
Exhibit 1.1.2 Conversion List of Matchlogic Options
Exhibit 1.3 Escrow Agreement
Exhibit 1.5.1A Registration Rights Agreement
Exhibit 1.6A Excite Officer's Tax Certificate
Exhibit 1.6B Matchlogic Officer's Tax Certificate
Exhibit 2.0 Matchlogic Schedule of Exceptions
Exhibit 2.3 List of all holders and numbers held of Matchlogic Capital Stock, Matchlogic Options and
Matchlogic Warrants
Exhibit 2.8 Matchlogic's 1997 Financial Statements and December 1997 Financial Statements
Exhibit 2.11 Material Agreements
Exhibit 2.12 Matchlogic IP Rights Agreements and applications, registration and filings to protect
Matchlogic IP Rights and related disclosures
Exhibit 2.15.1 Employment Contracts and Consulting Agreements
Exhibit 2.15.3 Matchlogic Employee Plans
Exhibit 2.15.6 Matchlogic Benefit Arrangements
Exhibit 2.15.12 List of all Employees, Officers and Consultants of Matchlogic
Exhibit 3.0 Excite Schedule of Exceptions
Exhibit 4.4 Form of Voting Agreement
Exhibit 4.12 Matchlogic Affiliates Agreement
Exhibit 4.13 Matchlogic Continuity of Interest Certificate
Exhibit 5.4 Excite Affiliates Agreement
Exhibit 7.5 Form of Opinion of Excite's Counsel
Exhibit 8.5 Form of Opinion of Matchlogic's Counsel
Exhibit 8.6 Third Party Consents
