EXHIBIT 2
COMPANY VOTING AGREEMENT
This Company Voting Agreement ("Agreement") is made and entered into as of
January 19, 1999, between At Home Corporation, a Delaware corporation
("Parent"), and the undersigned stockholder ("Stockholder") of Excite, Inc., a
Delaware corporation (the "Company").
RECITALS
A. Concurrently with the execution of this Agreement, Parent, the Company
and Countdown Acquisition Corp., a Delaware corporation and a wholly-owned
subsidiary of Parent ("Merger Sub"), are entering into an Agreement and Plan of
Reorganization, dated as of January 19, 1999 (the "Merger Agreement") which
provides for the merger (the "Merger") of Merger Sub with and into the Company.
Pursuant to the Merger, shares of capital stock of the Company will be converted
into Series A Common Stock of Parent on the basis described in the Merger
Agreement. Capitalized terms used but not defined herein shall have the meanings
set forth in the Merger Agreement.
B. Stockholder is the record holder of such number of outstanding shares
of Company Common Stock as is indicated on the final page of this Agreement.
C. As a material inducement to enter into the Merger Agreement, Parent
desires Stockholder to agree, and Stockholder is willing to agree, to vote the
Shares (as defined below), and such other shares of capital stock of the Company
over which Stockholder has voting power, so as to facilitate consummation of the
Merger.
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
1. Agreement to Vote Shares.
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1.1 Definitions. For purposes of this Agreement:
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"Shares" shall mean all issued and outstanding shares of Company Common
Stock owned of record or beneficially (over which beneficially-owned shares
Stockholder exercises voting power) by Stockholder as of the record date for
persons entitled (a) to receive notice of, and to vote at the meeting of the
stockholders of the Company called for the purpose of voting on the matter
referred to in Section 1.2, or (b) to take action by written consent of the
stockholders of the Company with respect to the matter referred to in Section
1.2. Stockholder agrees that any shares of capital stock of the Company that
Stockholder purchases or with respect to which Stockholder otherwise acquires
beneficial ownership (over which beneficially-owned shares Stockholder exercises
voting power)
after the execution of this Agreement and prior to the date of termination of
this Agreement pursuant to Section 6 below shall be subject to the terms and
conditions of this Agreement to the same extent as if they constituted Shares on
the date hereof.
"Subject Securities" shall mean: (i) all securities of the Company
(including all shares of Company Common Stock and all options, warrants and
other rights to acquire shares of Company Common Stock) beneficially owned by
Stockholder as of the date of this Agreement; and (ii) all additional securities
of Company (including all additional shares of Company Common Stock and all
additional options, warrants and other rights to acquire shares of Company
Common Stock) of which Stockholder acquires ownership during the period from the
date of this Agreement through the earlier of termination of this Agreement
pursuant to Section 3 below or the record date for the meeting at which
stockholders of the Company are asked to vote upon adoption and approval of the
Merger Agreement and approval of the Merger (the "Record Date").
Stockholder shall be deemed to have effected a "Transfer" of a security if
Stockholder directly or indirectly: (i) sells, pledges, encumbers, transfers or
disposes of, or grants an option with respect to, such security or any interest
in such security; or (ii) enters into an agreement or commitment providing for
the sale, pledge, encumbrance, transfer or disposition of, or grant of an option
with respect to, such security or any interest therein. Stockholder shall not
be deemed to have effected a "Transfer" of a security by virtue of entering into
a merger, consolidation or other business combination of any nature with another
entity or entities.
1.2 Agreement to Vote Shares. Until the termination of this
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Agreement pursuant to Section 3 below, at every meeting of the stockholders of
the Company called with respect to any of the following, and at every
adjournment thereof, and on every action or approval by written consent of the
stockholders of the Company with respect to any of the following, Stockholder
shall cause the Shares to be voted (i) in favor of adoption and approval of the
Merger Agreement and approval of the Merger and (ii) against approval of (a) any
proposal made in opposition to or in competition with consummation of the
Merger, (b) any merger, consolidation, sale of assets, reorganization or
recapitalization with any party other than Parent or its affiliates or (c) any
liquidation or winding up of the Company.
1.3. No Transfer of Subject Securities. Until the earlier of
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termination of this Agreement pursuant to Section 3 below or the Record Date,
except as may be required by (i) the foreclosure on any encumbrance secured by
such Subject Securities as of the date hereof or (ii) court order, Stockholder
agrees not to Transfer any of the Subject Securities, unless each transferee to
which any of such Subject Securities, or any interest in any of such Subject
Securities, is or may be Transferred shall have executed a counterpart of this
Agreement and agreed in writing to hold such Subject Securities (or interest in
any of such Subject Securities) subject to all of the terms and provisions of
this Agreement.
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2. Representations and Warranties of Stockholder. Stockholder (i) is the
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record owner of the shares of Company Common Stock indicated on the final page
of this Agreement, which at the date hereof are free and clear of any liens,
claims, options, charges or other encumbrances that would adversely affect the
ability of Stockholder to carry out the terms of this Agreement; and (ii) has
full corporate power and authority to make, enter into and carry out the terms
of this Agreement.
3. Termination. This Agreement shall terminate and shall have no further
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force or effect as of the first to occur of (i) September 30, 1999, (ii) such
date and time as the Merger shall become effective in accordance with the terms
and provisions of the Merger Agreement, (iii) such date and time as the Merger
Agreement shall have been terminated pursuant to Article VII thereof, (iv) the
first meeting of the Company's stockholders at which the Merger is considered
and not approved or (v) any breach by a party other than the Company of any of
the Parent Voting Agreements.
4. Miscellaneous.
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4.1 Severability. If any term, provision, covenant or restriction of
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this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, then the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
4.2 Binding Effect and Assignment. This Agreement and all of the
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provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by either
of the parties without prior written consent of the other.
4.3 Amendments and Modification. This Agreement may not be modified,
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amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto.
4.4 Specific Performance; Injunctive Relief. The parties hereto
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acknowledge that Parent will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
Stockholder set forth herein. Therefore, it is agreed that, in addition to any
other remedies that may be available to Parent upon any such violation, Parent
shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to Parent at law
or in equity.
4.5 Notices. All notices, requests, claims, demands and other
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communications hereunder shall be in writing and sufficient if delivered in
person, by cable, telegram or telex, or sent
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by mail (registered or certified mail, postage prepaid, return receipt
requested) or overnight courier (prepaid) to the respective parties as follows:
If to Parent: At Home Corporation
000 Xxxxxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Vice President, General Counsel
With a copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
Xxxxx Xxxxxx, Esq.
and a copy to: Xxxxx & Xxxxx, L.L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxxxx X. XxXxxxx
If to Stockholder: To the address for notice set forth on the last
page hereof.
With a copy to: Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxx
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall only be
effective upon receipt.
4.6 Governing Law. This Agreement shall be governed by, and
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construed and enforced in accordance with, the internal laws of the State of
Delaware (without regard to the principles of conflict of laws thereof).
4.7 Entire Agreement. This Agreement contains the entire
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understanding of the parties in respect of the subject matter hereof, and
supersedes all prior negotiations and understandings, both oral and written,
between the parties with respect to such subject matter.
4.8 Counterparts. This Agreement may be executed in several
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counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
4.9 Effect of Headings. The section headings herein are for
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convenience only and shall not affect the construction or interpretation of this
Agreement.
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IN WITNESS WHEREOF, the parties have caused this Company Voting Agreement
to be duly executed on the date and year first above written.
AT HOME CORPORATION
By: _____________________________________
Name: ___________________________________
Title: __________________________________
STOCKHOLDER:
By: _____________________________________
Name:____________________________________
Title: __________________________________
Stockholder's Address for Notice:
_________________________________________
_________________________________________
_________________________________________
__________ Outstanding Shares of Company
Common Stock
***COMPANY VOTING AGREEMENT***