{"id":40843,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/nomination-and-observer-agreement-excite-inc-and-intuit-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"nomination-and-observer-agreement-excite-inc-and-intuit-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/corporate\/nomination-and-observer-agreement-excite-inc-and-intuit-inc.html","title":{"rendered":"Nomination and Observer Agreement &#8211; Excite Inc. and Intuit Inc."},"content":{"rendered":"<pre>                        NOMINATION AND OBSERVER AGREEMENT\n\n         THIS NOMINATION AND OBSERVER AGREEMENT is entered into as of June 25,\n1997, by and between Excite, Inc., a California corporation (the \"Company\"), and\nIntuit Inc., a Delaware corporation (\"Intuit\").\n\n                                    RECITALS\n\n         WHEREAS, Intuit acquired 2,900,000 shares of Common Stock of the\nCompany (the \"Purchased Shares\") pursuant to a Stock Purchase Agreement by and\nbetween the Company and Intuit, dated June 11, 1997 (the \"Stock Purchase\nAgreement\").\n\n         WHEREAS, as an inducement for Intuit to enter into the Stock Purchase\nAgreement, the Company agreed to grant the director nomination and Board\nobserver rights to Intuit as contained herein.\n\n         NOW, THEREFORE, in consideration of the mutual promises and covenants\nhereinafter set forth, the Company and Intuit agree as follows:\n\n                                    SECTION 1\n\n                           DIRECTOR NOMINATION RIGHTS\n\n         1.1 Designee. For so long as Intuit continues to own at least ten\npercent (10%) of the outstanding Common Stock of the Company (including shares\nof Common Stock issuable upon conversion of outstanding shares of Preferred\nStock), the Company shall provide Intuit thirty (30) days prior written notice\nof any shareholder solicitation or action relating to the election of directors.\nAfter receipt of such notice, Intuit may, by written notice sent to the Company\nwithin ten (10) days of receipt of such notice, request that the Company\nnominate, and the Company shall nominate, for election to the Company's Board of\nDirectors (the \"Board of Directors\"), in connection with such shareholder\nsolicitation or action, one candidate designated by Intuit, who shall be\nreasonably acceptable to the Company (the \"Intuit Designee\"). In the event that\nIntuit shall desire to appoint an Intuit Designee otherwise than in connection\nwith a shareholder solicitation or action relating to the election of directors,\nthen as soon as practicable upon written notice from Intuit, the Company shall\nappoint an Intuit Designee to the Board of Directors.\n\n         1.2 Affiliates. For purposes of this Agreement, all shares held by an\naffiliate (as defined in Rule 405 promulgated under the Securities Act of 1933,\nas amended) of Intuit, will be deemed to be owned by Intuit.\n\n         1.3 Voting of Management Shares. The Company shall use its best efforts\n(i) to cause to be voted the shares for which the Company's management or the\nBoard of Directors holds proxies or is otherwise entitled to vote in favor of\nthe election of the Intuit Designee nominated\n\n\n\n\n   2\n\npursuant to this Agreement; and (ii) to cause the Board of Directors to\nunanimously recommend to its shareholders to vote in favor of the Intuit\nDesignee.\n\n         1.4 Vacancies. In the event that any Intuit Designee shall cease to\nserve as a director of the Company for any reason, the vacancy resulting\ntherefrom shall be filled by another Intuit Designee.\n\n         1.5 Equal Treatment. The Company shall provide the same compensation\nand rights and benefits of indemnity to the Intuit Designee as are provided to\nother non-employee directors.\n\n                                    SECTION 2\n\n                                 OBSERVER RIGHTS\n\n         2.1. Observer Rights. For so long as Intuit continues to own at least\nten percent (10%) of the outstanding Common Stock of the Company (including\nshares of Common Stock issuable upon conversion of outstanding shares of\nPreferred Stock) and an Intuit Designee is not a member of the Board of\nDirectors, the Company shall invite a representative of Intuit (the\n\"Representative\"), which Representative shall be reasonably acceptable to the\nCompany, to attend all meetings of the Board of Directors and the audit\ncommittee thereof in a non-voting observer capacity and, in this respect, shall\ngive such Representative copies of all notices, minutes, consents and other\nBoard of Directors' or audit committee members' materials that it provides to\nall of its directors or to its audit committee members (as appropriate);\nprovided, however, (i) that the Company reserves the right to withhold any\ninformation and to exclude such Representative from any meeting, or any portion\nthereof, as is reasonably determined by the Chairman of the Board or a majority\nof the members of the Board of Directors or the audit committee thereof (in the\ncase of audit committee meetings) to be necessary for purposes of\nconfidentiality, competitive factors, attorney-client privilege or other\nreasonable purposes; and (ii) that in no event shall the failure to provide the\nnotice described above invalidate in any way any action taken at a meeting of\nthe Board of Directors or any meeting of the audit committee thereof.\n\n         2.2 Confidentiality. Intuit agrees, and Intuit will cause any\nRepresentative of Intuit to agree, to hold in confidence with respect to all\ninformation so provided and not use or disclose any confidential information\nprovided to or learned by it in connection with its rights under this letter\nother than for purposes reasonably related to Intuit's interest as a shareholder\nof the Company, and not to the detriment of, the Company. The confidentiality\nprovisions hereof will survive any termination of this Agreement.\n\n                                    SECTION 3\n\n                                  MISCELLANEOUS\n\n         3.1 Termination. This Agreement shall terminate and have no further\nforce or effect at such time as Intuit ceases to hold at least ten percent (10%)\nof the outstanding Common Stock (including shares of Common Stock issuable upon\nconversion of outstanding shares of Preferred Stock) of the Company.\n\n\n\n                                      -2-\n\n   3\n\n         3.2 Specific Enforcement. It is agreed and understood that monetary\ndamages would not adequately compensate Intuit for the breach of this Agreement\nby the Company, that this Agreement shall be specifically enforceable, and that\nany breach or threatened breach of this Agreement shall be the proper subject of\na temporary or permanent injunction or restraining order. Further, the Company\nwaives any claim or defense that there is an adequate remedy at law for such\nbreach or threatened breach.\n\n         3.3 Assignment. This Agreement and the rights granted to Intuit\nhereunder are personal to Intuit and may not be assigned to any other person;\nprovided, however, that this Agreement and all of the rights granted to Intuit\nhereunder may be assigned to (i) a purchaser in a private, block sale\ntransaction of all of the shares of Common Stock of the Company held by Intuit,\nwhich purchaser is reasonably acceptable to the Company or (ii) any party who\nacquires ownership or control of Intuit through a merger, consolidation, sale of\nassets or similar business combination (either such party is referred to as an\n\"Assignee\"); provided, further, that any Assignee expressly agrees in writing to\nbe bound by the standstill provisions and resale restrictions contained in\nSections 4.5 and 4.6 of the Stock Purchase Agreement.\n\n         3.4 Successors and Assigns. Except as otherwise expressly provided\nherein, the terms and conditions of this Agreement shall inure to the benefit of\nand be binding upon the respective successors and assigns of the parties.\n\n         3.5 Governing Law. This Agreement shall be governed by and construed\nunder the internal laws of the State of California as applied to agreements\namong California residents entered into and to be performed entirely within\nCalifornia, without reference to principles of conflict of laws or choice of\nlaws.\n\n         3.6 Counterparts. This Agreement may be executed in two or more\ncounterparts, each of which shall be deemed an original, but all of which\ntogether shall constitute one and the same instrument.\n\n         3.7 Headings. The headings and captions used in this Agreement are used\nfor convenience only and are not to be considered in construing or interpreting\nthis Agreement. All references in this Agreement to sections, paragraphs,\nexhibits and schedules shall, unless otherwise provided, refer to sections and\nparagraphs hereof and exhibits and schedules attached hereto, all of which\nexhibits and schedules are incorporated herein by this reference.\n\n         3.8 Notices. Unless otherwise provided, any notice required or\npermitted under this Agreement shall be given in writing and shall be deemed\neffectively given upon personal delivery to the party to be notified or upon\ndeposit with the United States Post Office, by registered or certified mail,\npostage prepaid and addressed to the party to be notified in the case of the\nCompany, at 555 Broadway, Redwood City, California 94063, attention: General\nCounsel, with a copy to Mark C. Stevens, Fenwick &amp; West LLP, Two Palo Alto\nSquare, Palo Alto, California 94306, or in the case of Intuit, at 1840\nEmbarcadero Road, Palo Alto, California 94303, attention: Treasurer, with a copy\nto: General Counsel, or at such other address as any party may designate by\ngiving ten (10) days advance written notice to the other party.\n\n\n\n                                      -3-\n\n   4\n\n         3.9 Amendments and Waivers. Any term of this Agreement may be amended\nand the observance of any term of this Agreement may be waived (either generally\nor in a particular instance and either retroactively or prospectively), only\nwith the written consent of the Company and Intuit.\n\n         3.10 Severability. If one or more provisions of this Agreement are held\nto be unenforceable under applicable law, such provision(s) shall be excluded\nfrom this Agreement and the balance of the Agreement shall be interpreted as if\nsuch provision(s) were so excluded and shall be enforceable in accordance with\nits terms.\n\n         3.11 Entire Agreement. This Agreement constitutes the entire agreement\nand understanding of the parties with respect to the subject matter hereof and\nsupersedes any and all prior negotiations, correspondence, agreements,\nunderstandings, duties or obligations between the parties with respect to the\nsubject matter hereof.\n\n         3.12 Further Assurances. From and after the date of this Agreement,\nupon the request of Intuit or the Company, the Company and Intuit shall execute\nand deliver such instruments, documents or other writings as may be reasonably\nnecessary or desirable to confirm and carry out and to effectuate fully the\nintent and purposes of this Agreement.\n\n\n\n               [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]]\n\n\n\n                                      -4-\n\n   5\n\n         IN WITNESS WHEREOF, the parties hereto have executed this Agreement as\nof the date first above written.\n                                                          \nTHE COMPANY                           INTUIT                 \n- -----------                           ------                 \n                                                                    \nEXCITE, INC.,                         INTUIT INC.,                      \na California corporation              a Delaware corporation \n                                                                           \nBy: \/s\/ Robert C. Hood                By: \/s\/ William Harris\n   -------------------------------       ---------------------------------- \nTitle: Executive VP, CAO\/CFO          Title: Exec. VP   \n      ----------------------------          -------------------------------\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7487,7908],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9553,9556],"class_list":["post-40843","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-excite-inc","corporate_contracts_companies-intuit-inc","corporate_contracts_industries-technology__software","corporate_contracts_types-corporate","corporate_contracts_types-corporate__govern"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40843","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40843"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40843"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40843"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40843"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}