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Exhibit 10.7
PARENT VOTING AGREEMENT
This Parent Voting Agreement ("AGREEMENT") is made and entered into as
of January 19, 1999, between Excite, Inc., a Delaware corporation (the
"COMPANY"), At Home Corporation, a Delaware corporation ("PARENT") and the
undersigned stockholder ("STOCKHOLDER") of Parent.
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 Series A Common Stock and Series B Common Stock of Parent as is
indicated on the final page of this Agreement.
C. As a material inducement to enter into the Merger Agreement, the
Company desires Stockholder to agree, and Stockholder is willing to agree, to
vote the Shares (as defined below) and other such shares of capital stock of the
Parent 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.
1.1 Definitions. For purposes of this Agreement:
"SHARES" shall mean all issued and outstanding shares of Series A
Common Stock and Series B Common Stock of Parent 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 Parent called for the purpose
of voting on the matters referred to in Section 1.2, or (b) to take action by
written consent of the stockholders of Parent with respect to the matters
referred to in Section 1.2. Stockholder agrees that any shares of Series A
Common Stock or Series B Common Stock of Parent that Stockholder purchases or
with respect to which Stockholder otherwise acquires beneficial ownership
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(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 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 Parent
(including all shares of Series A Common Stock and Series B Common Stock of
Parent and all options, warrants and other rights to acquire shares of Series A
Common Stock or Series B Common Stock of Parent) beneficially owned by
Stockholder as of the date of this Agreement; and (ii) all additional securities
of Parent (including all additional shares of Series A Common Stock and Series B
Common Stock of Parent and all additional options, warrants and other rights to
acquire shares of Series A Common Stock or Series B Common Stock of Parent) 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 (the "RECORD DATE") for the meeting at which
stockholders of Parent are asked to vote upon (i) the issuance of shares of
Series A Common Stock of Parent pursuant to the Merger and (ii) an amendment to
the introductory paragraph and paragraphs (a) and (c) of Article IV of Parent's
Amended and Restated Certificate of Incorporation in the Form attached hereto as
Exhibit A (collectively the "PARENT STOCKHOLDER PROPOSALS").
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 (i) it or any member of its Stockholder Group (as such term is defined
in that certain Amended and Restated Stockholders' Agreement, dated August 1,
1996, among Parent and the parties indicated therein, as subsequently amended
(the "STOCKHOLDERS AGREEMENT")) entering into a merger, consolidation or other
business combination of any nature with another entity or entities, including,
without limitation, in connection with the proposed merger of
Tele-Communications, Inc. with a subsidiary of AT&T Corp. or as part of any
restructuring activities contemplated in connection therewith or (ii) any
Transfer made pursuant to the requirements of the Stockholders Agreement.
1.2 Agreement to Vote Shares. Until the termination of this
Agreement pursuant to Section 3 below, at every meeting of the stockholders of
Parent 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 Parent with respect to any of the following, Stockholder shall cause the
Shares to be voted in favor of approval of the Parent Stockholder Proposals.
1.3 No Transfer of Subject Securities. Until the earlier of
termination of this Agreement pursuant to Section 3 below or the Record Date,
except as may be
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required by (i) the foreclosure on any encumbrance secured by such Subject
Securities as of the date hereof, (ii) court order or (iii) the Stockholders
Agreement, Stockholder agrees not to (a) take any action that would have the
effect of converting shares of Series B Common Stock into shares of Series A
Common Stock of Parent or reducing the voting power of the Series B Common Stock
vis-a-vis the Series A Common Stock of Parent or (b) 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; provided that no Transfer may
be made that would have any of the effects described in clause (a) of this
Section 1.3.
2. Representations and Warranties of the Stockholder. Stockholder (i)
is the record owner of the shares of Series A Common Stock and Series B Common
Stock of Parent indicated on the final page of this Agreement, which, except as
set forth in the Stockholders Agreement, 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 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 Parent of
any of the Company Voting Agreements.
4. Indemnification. In the event of any litigation or claim in
connection with the Merger or this Agreement, Parent will indemnify and hold
Stockholder and AT&T Corp. and their respective directors, officers and
affiliates harmless against all losses, liabilities and expenses, including
reasonable attorneys' fees (collectively, "LOSSES"), incurred in connection with
such litigation or claim, unless such Losses result from the breach by
Stockholder of this Agreement.
5. Miscellaneous.
5.1 Severability. If any term, provision, covenant or restriction
of 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.
5.2 Binding Effect and Assignment. This Agreement and all of the
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
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provided herein, neither this Agreement nor any of the rights, interests or
obligations of the parties hereto may be assigned by any of the parties without
prior written consent of the other parties.
5.3 Amendments and Modification. This Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
5.4 Specific Performance; Injunctive Relief. The parties hereto
acknowledge that the Company 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 the Company upon any such violation,
the Company shall have the right to enforce such covenants and agreements by
specific performance, injunctive relief or by any other means available to the
Company at law or in equity.
5.5 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and sufficient if delivered in
person, by cable, telegram or telex, or sent by mail (registered or certified
mail, postage prepaid, return receipt requested) or overnight courier (prepaid)
to the respective parties as follows:
If to the Company: Excite, Inc.
000 Xxxxxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: General Counsel
With a copy to: Fenwick & Xxxx
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxx
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
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If to Stockholder: To the address for notice set forth on the last
page hereof.
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
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.
5.6 Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the internal laws of the State of
Delaware (without regard to the principles of conflict of laws thereof).
5.7 Entire Agreement. This Agreement contains the entire
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.
5.8 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
5.9 Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
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Exhibit A
(To the Parent Voting Agreement)
ARTICLE IV
AUTHORIZED STOCK
"The total number of shares of capital stock which the Corporation
shall have authority to issue is two hundred sixty million six hundred fifty
nine thousand seven hundred seven (260,659,707) shares, of which two hundred
fifty one million nine thousand seven hundred seven (251,009,707) shares shall
be common stock with a par value of $.01 per share ("COMMON STOCK"), and nine
million six hundred fifty thousand (9,650,000) shares shall be preferred stock
with a par value of $.01 per share ("PREFERRED STOCK"). Said shares of Common
Stock and Preferred Stock shall be divided into the following series:"
"(a) Two hundred thirty three million (233,000,000) shares of Common
Stock shall be of a series designated as "SERIES A COMMON STOCK"; provided,
however, that of such authorized shares of Series A Common Stock, fifteen
million four hundred thousand (15,400,000) shares are hereby reserved for
issuance upon conversion of shares of Series B Common Stock and shall only be
issued upon conversion of such shares of Series B Common Stock, and two million
six hundred nine thousand seven hundred seven (2,609,707) shares are hereby
reserved for issuance upon conversion of shares of Series K Common Stock and
shall only be issued upon conversion of such shares of Series K Common Stock;"
"(c) Two million six hundred nine thousand seven hundred seven
(2,609,707) shares of Common Stock shall be of a series designated as "SERIES K
COMMON STOCK"; and"
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IN WITNESS WHEREOF, the parties have caused this Parent Voting
Agreement to be duly executed on the date and year first above written.
EXCITE, INC.
By:
Name:
Title:
AT HOME CORPORATION
By:
Name:
Title:
STOCKHOLDER:
By:
Name:
Title:
Stockholder's Address for Notice:
Outstanding Shares of Series
A Common Stock of Parent
Outstanding Shares of Series B
Common Stock of Parent
***PARENT VOTING AGREEMENT***
