{"id":43980,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/voting-agreement-excite-inc-and-america-online-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"voting-agreement-excite-inc-and-america-online-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/securities\/voting-agreement-excite-inc-and-america-online-inc.html","title":{"rendered":"Voting Agreement &#8211; Excite Inc. and America Online Inc."},"content":{"rendered":"<pre>                                 VOTING AGREEMENT\n\n\n\n        This Voting Agreement (this \"Agreement\") is made and entered into as of\nNovember 25, 1996, by and among Excite, Inc., a California corporation\n(\"Excite\"), America Online, Inc., a Delaware corporation (\"AOL\"), and the\nparties other than Excite and AOL whose signatures are affixed hereto (the\n\"Shareholders\"). AOL and the Shareholders are sometimes collectively referred\nto herein as the \"Holders.\"\n\n        A.       AOL has entered into an Acquisition Agreement (the\n\"Acquisition Agreement\") and an Operating Agreement with Excite, each dated as\nof November 25, 1996, pursuant to which Excite will issue to AOL an aggregate\nof 1,950,000 shares of Excite Series E Preferred Stock.  In addition, AOL holds\n680,330 shares of Excite Common Stock and a warrant to purchase 650,000 shares\nof Excite Common Stock.\n\n        B.       It is a condition to the closing of the Acquisition Agreement\nthat Excite make such arrangements as are necessary to ensure that AOL will\nhave the right to have an AOL representative elected to the Board of Directors\nof Excite for so long as AOL holds at least 1,315,165 shares of Excite stock on\nan as converted to Common Stock basis.\n\n        C.       AOL, the Shareholders and Excite desire to enter into this\nAgreement to set forth their agreements and understandings with respect to how\nshares of Excite's Common and Preferred Stock (\"Capital Stock\") held by them\nwill be voted with respect to the election of an AOL representative to the\nExcite Board of Directors.\n\n        NOW THEREFORE, in consideration of the above recitals and the mutual\ncovenants made herein, the parties hereby agree as follows:\n\n        1.       ELECTION OF BOARD OF DIRECTORS.\n\n                 1.1      VOTING; AOL REPRESENTATION.  During the term of this\nAgreement, each Holder agrees to vote all shares of Capital Stock of Excite now\nor hereafter directly or indirectly owned (of record or beneficially) by such\nHolder, in such manner as may be necessary to elect (and maintain in office),\nas a member of Excite's Board of Directors, one individual designated by AOL\nfrom time to time in a writing delivered to Excite and signed by AOL.   For\npurposes of this Agreement, any individual who is designated for election to\nExcite's Board of Directors pursuant to this Section 1.1 is hereinafter\nreferred to as the \"AOL Board Designee.\"\n                                                        \n                 1.2      CHANGES IN AOL BOARD DESIGNEES.  From time to time \nduring the term of this Agreement, AOL may, in its sole discretion:\n\n                (a)     elect to remove from Excite's Board of Directors the\n         incumbent AOL Board Designee who occupies a Board seat for which AOL\n         is entitled to designate the AOL Board Designee under Section 1.1;\n         and\/or\n               \n                (b)     designate a new AOL Board Designee for election to a\n         Board seat for which AOL is entitled to designate the AOL Board\n         Designee under Section 1.1 (whether to replace a prior AOL Board\n         Designee or to fill a vacancy in such Board seat).\n\n\n   2\nIn the event of such a removal and\/or designation of an AOL Board Designee under\nthis Section 1.2, the Holders shall vote their shares of Excite's Capital Stock\nas provided in Section 1.1 to cause: (a) the removal from Excite's Board of\nDirectors of the AOL Board Designee so designated for removal by AOL; and (b)\nthe election to Excite's Board of Directors of any new AOL Board Designee so\ndesignated for election to Excite's Board of Directors by AOL.\n\n            1.3 NOTICE. Excite shall promptly give each of the Holders written\nnotice of any proposal by AOL to remove or elect a new AOL Board Designee. In\nany election of directors pursuant to this Section 1, the Holders shall vote\ntheir shares in a manner sufficient to elect to Excite's Board of Directors the\nindividuals to be elected thereto as provided in this Section 1.\n\n      2. FURTHER ASSURANCES. Each of the Holders and Excite agree not to vote\nany shares of Capital Stock, or to take any other actions, that would in any\nmanner defeat, impair, or adversely affect the stated intentions of the parties\nunder Section 1 of this Agreement.\n\n      3. ENFORCEMENT OF AGREEMENT. Each of the Shareholders acknowledges and\nagrees that any breach by any of him, her or it of this Agreement shall cause\nAOL irreparable harm which may not be adequately compensable by money damages.\nAccordingly, in the event of a breach or threatened breach by a Shareholder of\nany provision of this Agreement, Excite and AOL shall each be entitled to the\nremedies of specific performance, injunction or other preliminary or equitable\nrelief, including the right to compel any such breaching Shareholder, as\nappropriate, to vote such Shareholder's shares of Capital Stock of Excite in\naccordance with the provisions of this Agreement, in addition to such other\nrights remedies as may be available to Excite or AOL for any such breach or\nthreatened breach, including but not limited to the recovery of money damages.\n\n      4.    TERM.  This  Agreement  shall  commence as of the Closing (as such\nterm is  defined  in  Section 1.4 of the  Acquisition  Agreement)  and  shall\nterminate upon the first to occur of the following:\n\n            (a) Such time as AOL or its wholly-owned subsidiaries hold less than\n      1,315,165 shares of Excite stock on an as converted to Common Stock basis\n      (as adjusted for stock splits or similar events);\n\n            (b)   The  delivery  by AOL  of a  written  notice  to  Excite  to\n      terminate this Agreement;\n\n            (c) Immediately prior to the closing of any of the following: (i)\n      any consolidation or merger of Excite with or into any other corporation\n      or corporations in which the holders of Excite's outstanding shares\n      immediately before such consolidation or merger do not, immediately after\n      such consolidation or merger, retain stock representing a majority of the\n      voting power of the surviving corporation of such consolidation or merger\n      or stock representing a majority of the voting power of a corporation that\n      wholly owns, directly or indirectly, the surviving corporation of such\n      consolidation or merger; (ii) the sale, transfer or assignment of\n      securities of Excite representing a majority of the voting power of all\n      Excite's outstanding voting securities by the holders thereof to an\n      acquiring party in a single transaction or series of related transactions;\n      (iii) any other sale, transfer or assignment of securities of Excite\n      representing over fifty percent (50%) of the voting power of Excite's then\n      outstanding\n\n\n                                       2\n\n   3\n      voting securities by the holders thereof to an acquiring party; or (iv)\n      the sale of all or substantially all Excite's assets.\n\n      5.    GENERAL PROVISIONS.\n\n            5.1 ENTIRE AGREEMENT; CAPTIONS. This Agreement and the agreements to\nbe executed and delivered in connection with the Acquisition Agreement, together\nconstitute the entire agreement and understanding between the parties and there\nare no agreements or commitments with respect to the transactions contemplated\nherein except as set forth in this Agreement and the Acquisition Agreement. This\nAgreement and the Acquisition Agreement supersede any prior offer, agreement or\nunderstanding between the parties with respect to the transactions contemplated\nhereby. The captions in this Agreement are for convenience only and shall not be\nconsidered a part of or affect the construction or interpretation of any\nprovision of this Agreement.\n\n            5.2 NOTICES. Any notice required or permitted to be given under this\nAgreement shall be in writing and shall be personally or sent by certified or\nregistered United States mail, postage prepaid, or sent by nationally recognized\novernight express courier and addressed as follows:\n\n            (a)   if to Excite, at:\n\n                  Excite, Inc.\n                  1091 N. Shoreline Blvd., Suite 200\n                  Mountain View, CA  94043\n                  Attention:  President\n                  Facsimile:  415\/943-2888\n\n            with a copy to:\n\n                  Fenwick &amp; West LLP\n                  Two Palo Alto Square\n                  Palo Alto, CA  9306\n                  Attention:  Mark C. Stevens\n                  Facsimile:  415\/494-0674\n\n            (b)   If to AOL:\n\n                  America Online, Inc.\n                  22000 AOL Way\n                  Dulles, VA  20166\n                  Attention:  General Counsel\n                  Facsimile:  703\/265-2208\n\n            with a copy to:\n\n                  Piper &amp; Marbury L.L.P.\n                  1200 Nineteenth Street, NW\n                  Washington, DC.  20036-2430\n                  Attention:  Edwin M. Martin\n                  Facsimile;  202\/223-2085\n\n                                       3\n\n   4\n            5.3 AMENDMENT; WAIVER. Any term or provision of this Agreement may\nbe amended only by a writing signed by AOL, Excite and a majority of the\nShareholders, provided however, that any Shareholder who does not agree to such\namendment shall not be bound by such amendment but will be otherwise bound to\nthe terms of this Agreement that are not in conflict with such amendment. The\nobservance of any term or provision of this Agreement may be waived (either\ngenerally or in a particular instance and either retroactively or prospectively)\nonly by a writing signed by the party to be bound by such waiver. No waiver by a\nparty of any breach of this Agreement will be deemed to constitute a waiver of\nany other breach or any succeeding breach.\n\n            5.4 NO THIRD PARTY BENEFICIARIES. Nothing expressed or implied in\nthis Agreement is intended, or shall be construed, to confer upon or to give any\nperson, firm or corporation, other than the parties hereto, any rights or\nremedies under or by reason of this Agreement.\n\n            5.5 EXECUTION IN COUNTERPARTS. For the convenience of the parties,\nthis Agreement may be executed in one or more counterparts, each of which shall\nbe deemed an original but all of which together shall constitute one and the\nsame instrument.\n\n            5.6 ASSIGNMENT. These rights and obligations of the parties to this\nAgreement may not be delegated or assigned by any party hereto without the prior\nwritten consent of the other party and any such attempted delegation or\nassignment shall be void.\n\n            5.7 GOVERNING LAW. This Agreement shall be governed by and construed\nin accordance with the internal laws of the State of California (excluding\napplication of any choice of law doctrines that would make applicable the law of\nany other state or jurisdiction) and, where appropriate, applicable federal law.\n\n            5.8 SEVERABILITY. If any provision of this Agreement is for any\nreason and to any extent deemed to be invalid or unenforceable, then such\nprovision shall not be voided but rather shall be enforced to the maximum extent\nthen permissible under then applicable law and so as to reasonably effect the\nintent of the parties hereto, and the remainder of this Agreement will remain in\nfull force and effect.\n\n            5.9 ATTORNEYS' FEES. Should a suit or arbitration be brought to\nenforce or interpret any provision of this Agreement, the prevailing party shall\nbe entitled to recover reasonable attorneys' fees to be fixed in amount by the\nCourt or the Arbitrator(s) (including without limitation costs, expenses and\nfees on any appeal). The prevailing party will be entitled to recover its costs\nof suit or arbitration, as applicable, regardless of whether such suit or\narbitration proceeds to a final judgment or award.\n\n            5.10 SECTIONS AND EXHIBITS. Except as otherwise indicated, all\nreferences in this Agreement to \"Section (s)\" and \"Exhibit(s)\" are intended to\nrefer to Section (s) to this Agreement and Exhibit(s) to this Agreement,\nrespectively.\n\n            5.11 DISPUTE RESOLUTION. All disputes arising under this Agreement\nbetween AOL and Excite shall be resolved pursuant to the dispute resolution\nprocedures set forth in the Commercial Agreement.\n\n                                       4\n\n   5\n            5.12 CONSTRUCTION OF AGREEMENT. This Agreement has been negotiated\nby the respective parties hereto and their attorneys and the language hereof\nwill not be construed for or against either party.\n\n\n\n                [THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK]\n\n                                       5\n\n   6\n\n\n\nIN WITNESS WHEREOF, the parties have executed this Agreement on the date and\nyear first above written.\n\nEXCITE, INC.:                            AMERICA ONLINE, INC.:\n- -----------------------------------      -------------------------------------- \nBy: \/s\/Richard Redding                   By: \/s\/ Miles Gilburn\n   --------------------------------          ----------------------------------\nName: Richard Redding                    Name: Miles Gilburn\n     ------------------------------           ---------------------------------\nTitle:  Vice President,                  Title: Senior VP, Corporate \n                                                Development\n        Finance and Administration             --------------------------------\n        ---------------------------\n\n\n\nSHAREHOLDERS:\n- ----------------------------------- \n\n\n\nINSTITUTIONAL VENTURE PARTNERS            IVP FOUNDERS FUND I, L.P.\nVI, L.P.\n   By Its General Partner                    By Its General Partner\n   Institutional Venture Management          Institutional Venture Management\n     VI, L.P.                                  VI, L.P.\n\n   By \/s\/ Geoffrey Y. Yang              By \/s\/ Geoffrey Y. Yang\n      -----------------------------       -------------------------------------\n      Geoffrey Y. Yang,                      Geoffrey Y. Yang,\n      General Partner                        General Partner\n                                             \n\n\nINSTITUTIONAL VENTURE                     KLEINER PERKINS CAUFIELD &amp; BYERS VIII\nMANAGEMENT VI, L.P.\n\n   By \/s\/ Geoffrey Y. Yang              By \/s\/ Vinod Khosla\n      -----------------------------       -------------------------------------\n      Geoffrey Y. Yang,                      Vinod Khosla, General Partner\n      General Partner                        \n   \n\n\nKPCB VII FOUNDERS FUND                     KPCB INFORMATION SCIENCES ZAIBATSU \n                                           FUND II              \n\nBy \/s\/ Vinod Khosla                        By \/s\/ Vinod Khosla\n      -----------------------------          ----------------------------------\n      Vinod Khosla, General Partner          Vinod Khosla, General Partner\n   \n\n\nITOCHU TECHNOLOGY, INC.                    ITOCHU CORPORATION\n\n By  \/s\/Sigeki Nishiyamo                    By  \/s\/Eizo Kobayashi\n   -----------------------------                -------------------------------\n\n Name   Sigeki Nishiyamo                    Name   Eizo Kobayashi\n     ---------------------------                  -----------------------------\n\n Title  Executive Vice President            Title  General Manager, Information\n      --------------------------                   Technology and Information \n                                                   Department\n                                                   ----------------------------\n\n\n                      (SIGNATURES CONTINUED ON NEXT PAGE)\n\n\n                                      6\n\n\n\n   7\n\n\n\n\nTRIBUNE COMPANY                           AOL VENTURES, INC.\n\n By  \/s\/ David Hiller                     By  \/s\/ Miles Gilburn\n     ------------------------------           ---------------------------------\n Name  David Hiller                        Name Miles Gilburn     \n      ----------------------------              ------------------------------- \n Title Senior VP                           Title Senior VP, Corporate\n      -----------------------------              Devleopment\n                                                 ------------------------------\n\n \/s\/ Robert W. Pittman                     \/s\/ Vinod Khosla\n ----------------------------------        ------------------------------------\n Robert W. Pittman                         Vinod Khosla\n\n \/s\/ Joseph R. Kraus, IV                   \/s\/ Graham F. Spencer\n ----------------------------------        ------------------------------------\n Joseph R. Kraus, IV                       Graham F. Spencer\n\n \/s\/ Brett Bullington                      \/s\/ Julie Gomoll\n ----------------------------------        ------------------------------------\n Brett Bullington                          Julie Gomoll\n\n\/s\/ Jeff McFadden                          \/s\/ Kevin Altis\n ----------------------------------        ------------------------------------\n Jeff McFadden                             Kevin Altis\n\n\n                                           IDG HOLDINGS, INC.\n\n\/s\/  Rachel Matthew                        By\n- -----------------------------------        ------------------------------------\n Rachel Matthews                           \n                                           Name ________________________________\n\n                                           Title _______________________________\n\n\n CHARLES RIVER PARTNERSHIP VII             CUC INTERNATIONAL INC.\n\n\n\n By \/s\/ Richard M. Burns Jr.               By \n   -------------------------------         ------------------------------------\nName Richard M. Burns Jr.                  Name\n   -------------------------------         ------------------------------------\nTitle General Partner\n   -------------------------------         ------------------------------------\n   \n             (SIGNATURE PAGE TO EXCITE\/AOL VOTING AGREEMENT)\n\n\n                                      7\n\n\n\n   8\n\n\n\n ROSEWOOD STONE GROUP, INC.\n\n\n\n By \/s\/ Claudia Stroud\n    -----------------------------\n\n Name Claudia Stroud\n    -----------------------------\n\n Title President\n    ------------------------------\n\n\n                (SIGNATURE PAGE TO EXCITE\/AOL VOTING AGREEMENT)\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6655,7487],"corporate_contracts_industries":[9510,9513],"corporate_contracts_types":[9629,9633],"class_list":["post-43980","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-america-online-inc","corporate_contracts_companies-excite-inc","corporate_contracts_industries-technology__programming","corporate_contracts_industries-technology__software","corporate_contracts_types-securities","corporate_contracts_types-securities__shareholder"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43980","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=43980"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43980"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43980"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43980"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}