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Excite Inc – ‘S-3/A’ on 6/9/98 – EX-1.01

As of: Tuesday, 6/9/98 · Accession #: 891618-98-2801 · File #: 333-53061

  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

 6/09/98  Excite Inc                        S-3/A                  3:104K                                   Bowne - Palo Alto/FA

Pre-Effective Amendment to Registration Statement for Securities Offered Pursuant to a Transaction — Form S-3
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: S-3/A       Amendment No. 2 to Form S-3                            8     53K 
 2: EX-1.01     Form of Underwriting Agreement                        27    115K 
 3: EX-5.01     Opinion of Fenwick and West LLP                        2     12K

EX-1.01 — Form of Underwriting Agreement
Exhibit Table of Contents

Page	(sequential)	\|	(alphabetic)	Top
			Alternative Formats (Word, et al.) Underwriting Agreement
1	1st Page - Filing Submission
"	Underwriting Agreement

EX-1.01 1st Page of 27 TOC ↑Top Previous Next ↓Bottom Just 1st
 
1,350,000 SHARES

EXCITE, INC.

 COMMON STOCK (NO PAR VALUE)

UNDERWRITING AGREEMENT

June ___, 1998

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                                                                   June __, 1998

Morgan Stanley & Co. Incorporated                                               
BancAmerica Robertson Stephens                                                  
c/o Morgan Stanley & Co.                                                        
Incorporated                                                        
1585 Broadway                                                       
New York, New York  10036                                           

Dear Sirs and Mesdames:                                                         

   Excite, Inc., a California corporation (the "COMPANY"), proposes to
issue and sell to the several Underwriters named in Schedule II hereto (the     
"UNDERWRITERS"), and certain shareholders of the Company (the "SELLING          
SHAREHOLDERS") named in Schedule I hereto severally propose to sell to the      
several Underwriters, an aggregate of 1,350,000 shares of the Common Stock (no  
par value) of the Company (the "FIRM SHARES"), of which 1,232,500 shares are to 
be issued and sold by the Company and 117,500 shares are to be sold by the      
Selling Shareholders, each Selling Shareholder selling the amount set forth     
opposite such Selling Shareholder's name in Schedule I hereto.                  

       The Company also proposes to issue and sell to the several Underwriters
not more than an additional 202,500 shares of its Common Stock (no par value)   
(the "ADDITIONAL SHARES") if and to the extent that you, as Managers of the     
offering, shall have determined to exercise, on behalf of the Underwriters, the 
right to purchase such shares of common stock granted to the Underwriters in    
Section 3 hereof. The Firm Shares and the Additional Shares are hereinafter     
collectively referred to as the "Shares". The shares of Common Stock (no par    
value) of the Company to be outstanding after giving effect to the sales        
contemplated hereby are hereinafter referred to as the "COMMON STOCK". The      
Company and the Selling Shareholders are hereinafter sometimes collectively     
referred to as the "SELLERS".                                                   

      The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement, including a prospectus, relating to the 
Shares. The registration statement as amended at the time it becomes effective, 
including the information incorporated by reference therein and information (if 
any) deemed to be part of the registration statement at the time of             
effectiveness pursuant to Rule 430A under the Securities Act of 1933, as amended
(the "SECURITIES ACT"), is hereinafter referred to as the "REGISTRATION         
STATEMENT"; the prospectus in the form first used to confirm sales of Shares,   
including the information incorporated by reference therein, is hereinafter     
referred to as the "PROSPECTUS." If the Company has filed an abbreviated        
registration statement to register additional shares of Common Stock pursuant to
Rule 462(b) under the Securities Act (the "RULE 462 REGISTRATION STATEMENT"),   
then any reference herein to the term "REGISTRATION STATEMENT" shall be deemed  
to include such Rule 462 Registration Statement.                                

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        1. Representations and Warranties of the Company. The Company represents
and warrants to and agrees with each of the Underwriters that:                  

            (a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in effect,  
and no proceedings for such purpose are pending before or threatened by the     
Commission.                                                                     

          (b) (i) Each document filed or to be filed pursuant to the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), including each
of the documents incorporated by reference in the Prospectus (the "Incorporated 
Documents") complied or will comply when so filed in all material respects with 
the Exchange Act and the applicable rules and regulations of the Commission     
thereunder, (ii) each part of the Registration Statement, when it became        
effective, did not contain and each such part, as amended or supplemented, if   
applicable, will not contain any untrue statement of a material fact or omit to 
state a material fact required to be stated therein or necessary to make the    
statements therein not misleading, (iii) the Registration Statement and the     
Prospectus comply and, as amended or supplemented, if applicable, will comply in
all material respects with the Securities Act and the applicable rules and      
regulations of the Commission thereunder and (iv) the Prospectus does not       
contain and, as amended or supplemented, if applicable, will not through the    
Option Closing Date (defined below) contain any untrue statement of a material  
fact or omit to state a material fact necessary to make the statements therein, 
in the light of the circumstances under which they were made, not misleading,   
except that the representations and warranties set forth in this paragraph do   
not apply to statements or omissions in the Registration Statement or the       
Prospectus based upon information relating to any Underwriter furnished to the  
Company in writing by such Underwriter through you expressly for use therein.   

               (c) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction of its     
incorporation, has the corporate power and authority to own its property and to 
conduct its business as described in the Prospectus and is duly qualified to    
transact business and is in good standing in each jurisdiction in which the     
conduct of its business or its ownership or leasing of property requires such   
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its   
subsidiaries, taken as a whole.                                                 

               (d) Each subsidiary of the Company has been duly\ incorporated,
is validly existing as a corporation in good standing under the laws of the     
jurisdiction of its incorporation, has the corporate power and authority to own 
its property and to conduct its business as described in the Prospectus and is  
duly qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of property    
requires such qualification, except to the extent that the failure to be so     
qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole; all of the issued shares of     
capital stock of each subsidiary of the Company have been duly and validly      
authorized and issued, are fully paid and non-assessable and are owned directly 
by the Company, free and clear of all liens, encumbrances, equities or claims.  

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         (e) The Company and each of its subsidiaries has good and
marketable title to all real and personal property owned by it, free and clear  
of all liens, encumbrances and defects except such as are described in the      
Prospectus or such as do not materially affect the value of such property and do
not interfere with the use made and proposed to be made of such property by the 
Company and its subsidiaries; and any real property and buildings held under    
lease by the Company or any of its subsidiaries are held by it under valid,     
subsisting and enforceable leases, except with such exceptions as are not       
material and do not interfere with the current and proposed use of such property
and buildings by the Company or it subsidiaries, except as described in or      
contemplated by the Prospectus.                                                 

         (f) This Agreement has been duly authorized, executed and
delivered by the Company.                                                       

              (g) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained, or incorporated by          
reference, in the Prospectus.                                                   

               (h) The shares of Common Stock (including the Shares to be sold
by the Selling Shareholders) outstanding prior to the issuance of the Shares to 
be sold by the Company have been duly authorized and are validly issued, fully  
paid and non-assessable. Except as set forth in the Prospectus or in any        
Incorporated Document, the Company does not have outstanding any options to     
purchase, or any preemptive rights or other rights to subscribe for or to       
purchase, any securities or obligations convertible into, or any contracts or   
commitments to issue or sell, shares of its capital stock or any such options,  
rights, convertible securities or obligations. All outstanding shares of capital
stock and options and other rights to acquire capital stock have been issued in 
compliance with the registration and qualification provisions of all applicable 
securities laws and were not issued in violation of any preemptive rights,      
rights of first refusal and other similar rights.                               

       (i) The Shares to be sold by the Company have been duly
authorized and, when issued and delivered in accordance with the terms of this  
Agreement, will be validly issued, fully paid and non-assessable, and the       
issuance of such Shares will not be subject to any preemptive rights, rights of 
first refusal or other similar rights.                                          

         (j) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement will not    
contravene any provision of applicable law or the articles of incorporation or  
by-laws of the Company or any agreement or other instrument binding upon the    
Company or any of its subsidiaries that is material to the Company and its      
subsidiaries, taken as a whole, or any judgment, order or decree of any         
governmental body, agency or court having jurisdiction over the Company or any  
subsidiary, and no consent, approval, authorization or order of, or             
qualification with, any governmental body or agency is required for the         
performance by the Company of its obligations under this Agreement, except such 
as may be required by the securities or Blue Sky laws of the various states in  
connection with the offer and sale of the Shares.                               

              (k) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,  
financial or                                                                    

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otherwise, or in the earnings, business or operations of the Company and its    
subsidiaries, taken as a whole, from that set forth in the Prospectus (exclusive
of any amendments or supplements thereto subsequent to the date of this         
Agreement).                                                                     

              (l) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, except as described  
in or contemplated by the Prospectus, (i) the Company and its subsidiaries,     
taken as a whole, have not incurred any material liability or obligation, direct
or contingent, nor entered into any material transaction not in the ordinary    
course of business; (ii) the Company has not purchased any of its outstanding   
capital stock, nor declared, paid or otherwise made any dividend or distribution
of any kind on its capital stock other than ordinary and customary dividends;   
and (iii) there has not been any change in the capital stock, short-term debt or
long-term debt of the Company or any of its subsidiaries.                       

             (m) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to     
which any of the properties of the Company or any of its subsidiaries is subject
that are required to be described in the Registration Statement or the          
Prospectus and are not so described or any statutes, regulations, contracts or  
other documents that are required to be described in the Registration Statement 
or the Prospectus or to be filed as exhibits to the Registration Statement that 
are not described or filed as required.                                         

    (n) Each preliminary prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment thereto, 
or filed pursuant to Rule 424 under the Securities Act, complied when so filed  
in all material respects with the Securities Act and the applicable rules and   
regulations of the Commission thereunder.                                       

      (o) The Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds thereof as  
described in the Prospectus, will not be an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.                      

           (p) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks   
and in such amounts as are prudent and customary in the business in which they  
are engaged, except where the failure to have such insurance, singularly or in  
the aggregate, would not have a material adverse effect on the condition,       
financial or otherwise, or on the earnings, business or operations of the       
Company and its subsidiaries, taken as a whole; neither the Company nor any of  
its subsidiaries has been refused any insurance coverage sought or applied for; 
and the Company has no reason to believe that it will not be able to renew its  
or its subsidiaries' existing insurance coverage as and when such coverage      
expires or to obtain similar coverage from similar insurers as may be necessary 
to continue its or their businesses at a cost that would not materially and     
adversely affect the condition, financial or otherwise, or the earnings,        
business or operations of the Company and its subsidiaries, taken as a whole,   
except as described in or contemplated by the Prospectus.                       

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               (q) The Company and its subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and local laws   
and regulations relating to the protection of human health and safety, the      
environment or hazardous or toxic substances or wastes, pollutants or           
contaminants ("ENVIRONMENTAL LAWS"), (ii) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct 
their respective businesses and (iii) are in compliance with all terms and      
conditions of any such permit, license or approval, except where such           
noncompliance with Environmental Laws, failure to receive required permits,     
licenses or other approvals or failure to comply with the terms and conditions  
of such permits, licenses or approvals would not, singly or in the aggregate,   
have a material adverse effect on the Company and its subsidiaries, taken as a  
whole.                                                                          

                     (r) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or operating     
expenditures required for clean-up, closure of properties or compliance with    
Environmental Laws or any permit, license or approval, any related constraints  
on operating activities and any potential liabilities to third parties) which   
would, singly or in the aggregate, have a material adverse effect on the Company
and its subsidiaries, taken as a whole.                                         

                        (s) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with respect  
to any securities of the Company or to require the Company to include such      
securities with the Shares registered pursuant to the Registration Statement.   

                   (t) The Company has complied with all provisions of
Section 517.075, Florida Statutes relating to doing business with the Government
of Cuba or with any person or affiliate located in Cuba.                        

                      (u) The Company owns or possesses adequate licenses or
other rights to use all patents, copyrights, trademarks, service marks, trade   
names, technology and know-how necessary to conduct its business and the        
business of its subsidiaries in the manner described in the Prospectus and,     
except as disclosed in the Prospectus, neither the Company nor any of its       
subsidiaries has received any notice of infringement or conflict with asserted  
rights of others with respect to any patents, copyrights, trademarks, service   
marks, trade names, technology or know-how that could result in any material    
adverse effect upon the Company and its subsidiaries, taken as a whole; and,    
except as described in the Prospectus, the discoveries, inventions, products or 
processes of the Company and its subsidiaries referred to in the Prospectus do  
not, to the best knowledge of the Company, infringe or conflict with any right  
or patent of any third party, or any discovery, invention, product or process   
that is the subject of a patent application filed by any third party, known to  
the Company that could have a material adverse effect on the Company and its    
subsidiaries, taken as a whole.                                                 

                (v) The Company and its subsidiaries possess all
consents, approvals, orders, certificates, authorizations and permits issued by,
and have made all declarations and filings with, all appropriate federal, state 
or foreign governmental and self-regulatory authorities                         

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and all courts and other tribunals necessary to conduct the Company's and       
subsidiaries' businesses and to own, lease, license and use their properties in 
the manner described in the Prospectus, except to the extent that the failure to
obtain or file would not have a material adverse effect on the Company and its  
subsidiaries, taken as a whole, and neither the Company nor any of its          
subsidiaries has received any notice of proceedings related to the revocation or
modification of any such consent, approval, order, certificate, authorization or
permit that, singly or in the aggregate, if the subject of any unfavorable      
decision, ruling or finding, or failure to obtain or file, would result in a    
material adverse change in the condition, financial or otherwise, or in the     
earnings, business or operations of the Company and its subsidiaries, taken as a
whole, except as described in the Prospectus.                                   

         (w) The Company and its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific   
authorizations; (ii) transactions are recorded as necessary to permit           
preparation of financial statements in conformity with generally accepted       
accounting principals of the United States and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets is   
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.                                       

              (x) No material labor dispute with employees of the Company or
any of its subsidiaries exists or to the knowledge of the Company, is imminent, 
and the Company is not aware of any existing, threatened or imminent labor      
disturbance by the employees of any of the principal suppliers, manufacturers or
contractors of the Company or any of its subsidiaries that could result in any  
material adverse change in the condition, financial or otherwise, the earnings, 
the business or operations of the Company and its subsidiaries, taken as a      
whole.                                                                          

               (y) As of the date the Registration Statement became effective,
the Common Stock was authorized for quotation on The Nasdaq National Market upon
official notice of issuance.                                                    

      2. Representations and Warranties of the Selling Shareholders. Each of
the Selling Shareholders represents and warrants to and agrees with each of the 
Underwriters that:                                                              

         (a) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Shareholder.                          

              (b) The execution and delivery by such Selling Shareholder of,
and the performance by such Selling Shareholder of its obligations under, this  
Agreement, the Custody Agreement signed by such Selling Shareholder and [BANK   
BOSTON,] as Custodian, relating to the deposit of the Shares to be sold by such 
Selling Shareholder (the "CUSTODY AGREEMENT") and the Power of Attorney         
appointing certain individuals as such Selling Shareholder's attorneys-in-fact  
to the extent set forth therein, relating to the transactions contemplated      
hereby and by the Registration Statement (the "POWER OF ATTORNEY"), will not    
contravene any provision of applicable law, or the articles of incorporation or 
by-laws of such Selling Shareholder (if such Selling Shareholder is a           
corporation), or any agreement or other instrument binding upon such            

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Selling Shareholder or any judgment, order or decree of any governmental body,  
agency or court having jurisdiction over such Selling Shareholder, and no       
consent, approval, authorization or order of, or qualification with, any        
governmental body or agency is required for the performance by such Selling     
Shareholder of its obligations under this Agreement or the Custody Agreement or 
Power of Attorney of such Selling Shareholder, except such as may be required by
the securities or Blue Sky laws of the various states in connection with the    
offer and sale of the Shares.                                                   

              (c) Such Selling Shareholder has, and on the Closing Date will
have, valid title to the Shares to be sold by such Selling Shareholder and the  
legal right and power, and all authorization and approval required by law, to   
enter into this Agreement, the Custody Agreement and the Power of Attorney and  
to sell, transfer and deliver the Shares to be sold by such Selling Shareholder.

              (d) The Shares to be sold by such Selling Shareholder pursuant
to this Agreement have been duly authorized and are validly issued, fully paid  
and non-assessable.                                                             

             (e) The Custody Agreement and the Power of Attorney have been
duly authorized, executed and delivered by such Selling Shareholder and are     
valid and binding agreements of such Selling Shareholder.                       

     (f) Delivery of the Shares to be sold by such Selling
Shareholder pursuant to this Agreement will pass title to such Shares free and  
clear of any security interests, claims, liens, equities and other encumbrances.

             (g) (i) The Registration Statement, when it became effective,
did not contain and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact        
required to be stated therein or necessary to make the statements therein not   
misleading, (ii) the Registration Statement and the Prospectus comply and, as   
amended or supplemented, if applicable, will comply in all material respects    
with the Securities Act and the applicable rules and regulations of the         
Commission thereunder and (iii) the Prospectus does not contain and, as amended 
or supplemented, if applicable, will not contain any untrue statement of a      
material fact or omit to state a material fact necessary to make the statements 
therein, in the light of the circumstances under which they were made, not      
misleading, except that the representations and warranties set forth in this    
paragraph 2(g) do not apply to statements or omissions in the Registration      
Statement or the Prospectus based upon information relating to any Underwriter  
furnished to the Company in writing by such Underwriter through you expressly   
for use therein.                                                                

  3. Agreements to Sell and Purchase. Each Seller, severally and not
jointly, hereby agrees to sell to the several Underwriters, and each            
Underwriter, upon the basis of the representations and warranties herein        
contained, but subject to the conditions hereinafter stated, agrees, severally  
and not jointly, to purchase from such Seller at $______ a share (the "PURCHASE 
PRICE") the number of Firm Shares (subject to such adjustments to eliminate     
fractional shares as you may determine) that bears the same proportion to the   
number of Firm Shares to be sold by                                             

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such Seller as the number of Firm Shares set forth in Schedule II hereto        
opposite the name of such Underwriter bears to the total number of Firm Shares. 

               On the basis of the representations and warranties contained in
this Agreement, and subject to its terms and conditions, the Company agrees to  
sell to the Underwriters the Additional Shares, and the Underwriters shall have 
a one-time right to purchase, severally and not jointly, up to 202,500          
Additional Shares at the Purchase Price. If you, on behalf of the Underwriters, 
elect to exercise such option, you shall so notify the Company in writing not   
later than 30 days after the date of this Agreement, which notice shall specify 
the number of Additional Shares to be purchased by the Underwriters and the date
on which such shares are to be purchased. Such date may be the same as the      
Closing Date (as defined below) but not earlier than the Closing Date nor later 
than ten business days after the date of such notice. Additional Shares may be  
purchased as provided in Section 5 hereof solely for the purpose of covering    
over-allotments made in connection with the offering of the Firm Shares. If any 
Additional Shares are to be purchased, each Underwriter agrees, severally and   
not jointly, to purchase the number of Additional Shares (subject to such       
adjustments to eliminate fractional shares as you may determine) that bears the 
same proportion to the total number of Additional Shares to be purchased as the 
number of Firm Shares set forth in Schedule II hereto opposite the name of such 
Underwriter bears to the total number of Firm Shares.                           

         Each Seller hereby agrees that, without the prior written
consent of Morgan Stanley & Co. Incorporated on behalf of the Underwriters, it  
will not, during the period ending 90 days after the date of the Prospectus, (i)
offer, pledge, sell, contract to sell, sell any option or contract to purchase, 
purchase any option or contract to sell, grant any option, right or warrant to  
purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or     
exchangeable for Common Stock or (ii) enter into any swap or other arrangement  
that transfers to another, in whole or in part, any of the economic consequences
of ownership of the Common Stock, whether any such transaction described in     
clause (i) or (ii) above is to be settled by delivery of Common Stock or such   
other securities, in cash or otherwise. The foregoing sentence shall not apply  
to (A) the Shares to be sold hereunder, (B) the issuance by the Company of      
shares of Common Stock upon the exercise of an option or warrant or the         
conversion of a security outstanding on the date hereof of which the            
Underwriters have been advised in writing or (C) transactions by any person     
other than the Company relating to shares of Common Stock or other securities   
acquired in open market transactions after the completion of the offering of the
Shares. In addition, each Selling Shareholder, agrees that, without the prior   
written consent of Morgan Stanley & Co. Incorporated on behalf of the           
Underwriters, it will not, during the period ending 90 days after the date of   
the Prospectus, make any demand for, or exercise any right with respect to, the 
registration of any shares of Common Stock or any security convertible into or  
exercisable or exchangeable for Common Stock.                                   

                4. Terms of Public Offering. The Sellers are advised by you that
the Underwriters propose to make a public offering of their respective portions 
of the Shares as soon after the Registration Statement and this Agreement have  
become effective as in your judgment is advisable. The Sellers are further      
advised by you that the Shares are to be offered to the public                  

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initially at $_____________ a share (the "PUBLIC OFFERING PRICE") and to certain
dealers selected by you at a price that represents a concession not in excess of
$______ a share under the Public Offering Price, and that any Underwriter may   
allow, and such dealers may reallow, a concession, not in excess of $_____ a    
share, to any Underwriter or to certain other dealers.                          

       5. Payment and Delivery. Payment for the Firm Shares to be sold by each
Seller shall be made to such Seller in Federal or other funds immediately       
available in New York City against delivery of such Firm Shares for the         
respective accounts of the several Underwriters at 10:00 a.m., New York City    
time, on ____________, 1998, or at such other time on the same or such other    
date, not later than _________, 1998, as shall be designated in writing by you. 
The time and date of such payment are hereinafter referred to as the "CLOSING   
DATE".                                                                          

 Payment for any Additional Shares shall be made to the Company in
Federal or other funds immediately available in New York City against delivery  
of such Additional Shares for the respective accounts of the several            
Underwriters at 10:00 a.m., New York City time, on the date specified in the    
notice described in Section 3 or at such other time on the same or on such other
date, in any event not later than _______, 1998, as shall be designated in      
writing by you. The time and date of such payment are hereinafter referred to as
the "OPTION CLOSING DATE".                                                      

  Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you   
shall request in writing not later than one full business day prior to the      
Closing Date or the Option Closing Date, as the case may be. The certificates   
evidencing the Firm Shares and Additional Shares shall be delivered to you on   
the Closing Date or the Option Closing Date, as the case may be, for the        
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,    
against payment of the Purchase Price therefor.                                 

      6. Conditions to the Underwriters' Obligations. The obligations of the
Sellers to sell the Shares to the Underwriters and the several obligations of   
the Underwriters to purchase and pay for the Shares on the Closing Date are     
subject to the condition that the Registration Statement shall have become      
effective not later than 5:30 p.m. (New York City time) on the date hereof.     

        The several obligations of the Underwriters are subject to the following
further conditions:                                                             

              (a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:                                                  

                      (i) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential downgrading or of 
any review for a possible change that does not indicate the direction of the    
possible change, in the rating accorded any of the Company's securities by any  
"nationally recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act; and                    

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                     (ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition, financial or      
otherwise, or in the earnings, business or operations of the Company and its    
subsidiaries, taken as a whole, from that set forth in the Prospectus (exclusive
of any amendments or supplements thereto subsequent to the date of this         
Agreement) that, in your judgment, is material and adverse and that makes it, in
your judgment, impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus.                                                 

              (b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of the   
Company, to the effect set forth in Section 6(a)(i) above and to the effect that
the representations and warranties of the Company contained in this Agreement   
are true and correct as of the Closing Date and that the Company has complied   
with all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date.                 

     The officer signing and delivering such certificate may rely upon the
best of his or her knowledge as to proceedings threatened.                      

               (c) The Underwriters shall have received on the Closing Date an
opinion of Fenwick & West LLP, outside counsel for the Company, dated the       
Closing Date, to the effect that:                                               

                      (i) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its property and
to conduct its business as described in the Prospectus and is duly qualified to 
transact business and is in good standing in each jurisdiction in which the     
conduct of its business or its ownership or leasing of property requires such   
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its   
subsidiaries, taken as a whole;                                                 

                        (ii) each significant subsidiary of the Company has been
duly incorporated, is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, has the corporate power and  
authority to own its property and to conduct its business as described in the   
Prospectus and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its ownership or      
leasing of property requires such qualification, except to the extent that the  
failure to be so qualified or be in good standing would not have a material     
adverse effect on the Company and its subsidiaries, taken as a whole;           

                    (iii) the Company has the authorized and outstanding
capital stock as set forth or incorporated by reference in the Prospectus;      
except as disclosed in the Prospectus, to such counsel's knowledge, there is no 
outstanding option, warrant or other right calling for the issuance of, and no  
commitment, plan or arrangement to issue, any share of capital stock of the     
Company or any security convertible into or exchangeable or exercisable for     
capital stock of the Company;                                                   

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                        (iv) the shares of Common Stock (including the Shares to
be sold by the Selling Shareholders) outstanding prior to the issuance of the   
Shares to be sold by the Company have been duly authorized and are validly      
issued and non-assessable, and, to the knowledge of such counsel, fully paid;   

                     (v) all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and issued, are 
non-assessable and, to the knowledge of such counsel, fully paid, and are owned 
directly by the Company, free and clear of all liens, encumbrances, equities or 
claims;                                                                         

                        (vi) the Shares to be sold by the Company have been duly
authorized and, when issued and delivered in accordance with the terms of this  
Agreement, will be validly issued, fully paid and non-assessable, and the       
issuance of such Shares will not be subject to any preemptive rights, or, to    
such counsel's knowledge, rights of first refusal or similar rights;            

                       (vii) this Agreement has been duly authorized, executed
and delivered by the Company;                                                   

                        (viii) the execution and delivery by the Company of, and
the performance by the Company of its obligations under, this Agreement will not
contravene any provision of applicable law or the articles of incorporation or  
by-laws of the Company or, to the knowledge of such counsel, any agreement or   
other instrument filed as an Exhibit to the Registration Statement, or, to the  
knowledge of such counsel, any judgment, order or decree of any governmental    
body, agency or court having jurisdiction over the Company or any subsidiary,   
and no consent, approval, authorization or order of, or qualification with, any 
governmental body or agency is required for the performance by the Company of   
its obligations under this Agreement, except such as may be required by the     
rules of the National Association of Securities Dealers (the "NASD") or the     
securities or Blue Sky laws of the various states or foreign jurisdictions in   
connection with the offer and sale of the Shares as to which such counsel       
expresses no opinion;                                                           

                   (ix) the statements (A) in the Prospectus under the
captions "Risk Factors--Risks Related to Netcenter Agreement," "Risk            
Factors--Government Regulation and Legal Uncertainties" "Risk Factors--Shares   
Eligible for Future Sale; Shelf Registration Statements and Registration        
Rights," "Risk Factors--Proposed Reincorporation; Certain Anti-Takeover         
Provisions," and "Business--Relationship with Netscape," (B) the description of 
the litigation set forth in the fourth, fifth and sixth paragraphs of that      
certain Form 8-K filed by the Company with the Securities and Exchange          
Commission on June 1, 1998, (C) in the Incorporated Documents relating to the   
description of the Company's authorized and outstanding capital stocks, and (D) 
in the Registration Statement in Item 15, in each case insofar as such          
statements constitute summaries of the legal matters, documents or proceedings  
referred to therein, fairly present the information called for with respect to  
such legal matters, documents and proceedings;                                  

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              (x) such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or any of   
its subsidiaries is a party or to which any of the properties of the Company or 
any of its subsidiaries is subject that are required to be described in the     
Registration Statement or the Prospectus and are not so described or of any     
statutes, regulations, contracts or other documents that are required to be     
described in the Registration Statement or the Prospectus or to be filed as     
exhibits to the Registration Statement that are not described or filed as       
required;                                                                       

                       (xi) the Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds thereof as  
described in the Prospectus, will not be an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended;                      

                 (xii) such counsel (A) is of the opinion that the
Registration Statement and Prospectus (except for financial statements and      
schedules and other financial and statistical data included therein as to which 
such counsel need not express any opinion) comply as to form in all material    
respects with the Securities Act and the applicable rules and regulations of the
Commission thereunder, and (B) the Incorporated Documents (except for financial 
statements and schedules and financial and statistical data included therein as 
to which such counsel need not express any opinion) comply as to form in all    
material respects with the Exchange Act and the applicable rules and regulations
of the Commission thereunder. In addition to the matters set forth above, such  
opinion shall also include a statement to the effect that nothing has come to   
the attention of such counsel that causes them to believe that (i) the          
Registration Statement at the time the Registration Statement became effective  
under the Act, but after giving effect to any modification incorporated therein 
pursuant to Rule 430A under the Act, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or       
necessary to make the statements therein not misleading, and (ii) the           
Prospectus, or any supplement thereto, including without limitation the         
Incorporated Documents as updated by the Prospectus, on the date the Prospectus 
was filed pursuant to the Act and the rules and regulations promulgated         
thereunder and as of the Closing Date, as the case may be, contained an untrue  
statement of a material fact or omitted to state a material fact necessary in   
order to make the statements, in light of the circumstances under which they    
were made, not misleading. Fenwick & West LLP may exclude from the scope of its 
opinion and such statement the financial statements, the notes thereto, the     
schedules and statistical information in the Registration Statement and may     
state that its statement is based upon participation in the preparation of the  
Registration Statement, Prospectus and the Incorporated Documents and any       
amendments or supplements thereto and the documents incorporated by reference,  
but are without independent check or verification.;                             

                        (xiii) the Shares to be sold under this Agreement to the
Underwriters by the Company are duly authorized for quotation on notice of      
issuance on The Nasdaq National Market;                                         

                   (xiv) to the knowledge of such counsel, there is no
legal or beneficial owner of any securities of the Company who has any rights,  
not effectively satisfied or                                                    

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waived, to require registration of any shares of capital stock of the Company in
connection with the filing of the Registration Statement;                       

                     (xv) the Company has corporate power and authority to
enter into this Agreement and to issue, sell and deliver to the Underwriters the
Shares to be issued and sold by the Company; and                                

                     (xvi) the Registration Statement has become effective
under the Securities Act, and, to such counsel's knowledge, no stop order       
proceedings with respect thereto have been instituted or are pending or         
threatened under the Securities Act, and any required filing of the Prospectus  
and any supplement thereto pursuant to Rule 424(b) under the Securities Act has 
been made in the manner and within the time period required by such Rule 424(b).

               (d) The Underwriters shall have received on the Closing Date an
opinion of Fenwick & West LLP, on behalf of the Selling Shareholders, dated the 
Closing Date, to the effect that:                                               

                     (i) this Agreement has been duly authorized, executed
and delivered by or on behalf of each of the Selling Shareholders;              

               (ii) the execution and delivery by each Selling
Shareholder of, and the performance by such Selling Shareholder of its          
obligations under, this Agreement and the Custody Agreement and Powers of       
Attorney of such Selling Shareholder will not contravene any provision of       
applicable law, or, to such counsel's knowledge, any agreement or other         
instrument binding upon such Selling Shareholder or, to such counsel's          
knowledge, any judgment, order or decree of any governmental body, agency or    
court having jurisdiction over such Selling Shareholder, and no consent,        
approval, authorization or order of, or qualification with, any governmental    
body or agency is required for the performance by such Selling Shareholder of   
its obligations under this Agreement or the Custody Agreement or Power of       
Attorney of such Selling Shareholder, except such as may be required by the     
rules of the NASD or the securities or Blue Sky laws of the various states and  
foreign jurisdictions in connection with offer and sale of the Shares as to     
which such counsel expresses no opinion;                                        

                       (iii) to such counsel's knowledge, each of the Selling\
Shareholders has the legal right and power, and all authorization and approval  
required by law, to enter into this Agreement and the Custody Agreement and     
Power of Attorney of such Selling Shareholder and to sell, transfer and deliver 
the Shares to be sold by such Selling Shareholder, except such as may be        
required by the rules of the NASD or the securities or Blue Sky laws of the     
various states and foreign jurisdictions in connection with offer and sale of   
the Shares as to which such counsel expresses no opinion;                       

                       (iv) the Custody Agreement and the Power of Attorney of
each Selling Shareholder have been duly authorized, executed and delivered by   
such Selling Shareholder and are valid and binding agreements of such Selling   
Shareholder, except (i) as limited by applicable bankruptcy, insolvency,        
reorganization, moratorium, and other laws of general application affecting     
enforcement of creditors' rights generally, (ii) as limited by laws             

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relating to the availability of specific performance, injunctive relief, or     
other equitable remedies, and (iii) to the extent the indemnification provisions
contained in the Custody Agreement and the Power of Attorney may be limited by  
applicable federal or state securities laws; and                                

                     (v) upon delivery of and payment for the Shares to be
sold by the Selling Shareholders as provided in this Agreement, and upon        
registration of such Shares in the stock records of the Company in the names of 
the Underwriters or their nominees and the issuance by the Company of stock     
certificates therefor, the Underwriters will be the owners of such Shares, free 
and clear of any adverse claim, provided that (a) neither the Underwriters nor  
their nominees grant any right, title or interest in or to such Shares to any   
person or entity prior to sale of such Shares to the public, (b) the            
Underwriters are purchasing such Shares in good faith and (c) the Underwriters, 
together with their nominees (if any), hold such Shares without notice of any   
adverse claim.                                                                  

               (e) The Underwriters shall have received on the Closing Date an
opinion of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP,       
counsel for the Underwriters, dated the Closing Date, covering the matters      
referred to in Sections 6(c)(vi), 6(c)(vii), 6(c)(ix) (but only as to the       
statements in the Prospectus under "Underwriters") and 6(c)(xii) (but only as to
clauses A, C and D thereof).                                                    

     With respect to Section 6(c)(xii) above, Fenwick & West LLP may state
that their opinion and belief are based upon their participation in the         
preparation of the Registration Statement and Prospectus and any amendments or  
supplements thereto and the documents incorporated by reference and review and  
discussion of the contents thereof, but are without independent check or        
verification, except as specified. With respect to Section 6(c)(xii) above,     
Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP may state that    
their opinion and belief are based upon their participation in the preparation  
and discussion of the Registration Statement and Prospectus and any amendments  
or supplements thereto (other than the Incorporated Documents) and review of the
contents thereof (including the Incorporated Documents), but are without        
independent check or verification, except as specified. With respect to Section 
6(d) above, Fenwick & West LLP may rely upon an opinion or opinions of counsel  
for any Selling Shareholders and, with respect to factual matters and to the    
extent such counsel deems appropriate, upon the representations of each Selling 
Shareholder contained herein and in the Custody Agreement and Power of Attorney 
of such Selling Shareholder and in other documents and instruments; provided    
that (A) each such counsel for the Selling Shareholders is satisfactory to your 
counsel, (B) a copy of each opinion so relied upon is delivered to you and is in
form and substance satisfactory to your counsel, (C) copies of such Custody     
Agreements and Powers of Attorney and of any such other documents and           
instruments shall be delivered to you and shall be in form and substance        
satisfactory to your counsel and (D) Fenwick & West LLP shall state in their    
opinion that they are justified in relying on each such other opinion.          

     The opinion of Fenwick & West LLP described in Sections 6(c) and 6(d)
above (and any opinions of counsel for any Selling Shareholder referred to in   
the immediately preceding paragraph) shall be rendered to the Underwriters at   
the request of the Company or one or more of the Selling Shareholders, as the   
case may be, and shall so state therein.                                        

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                        (f) The Underwriters shall have received, on each of the
date hereof and the Closing Date, a letter dated the date hereof or the Closing 
Date, as the case may be, in form and substance satisfactory to the             
Underwriters, from Ernst & Young LLP, independent public accountants, containing
statements and information of the type ordinarily included in accountants'      
"comfort letters" to underwriters with respect to the financial statements and  
certain financial information contained in, or incorporated by reference into,  
the Registration Statement and the Prospectus; provided that the letter         
delivered on the Closing Date shall use a "cut-off date" not earlier than the   
date hereof.                                                                    

    (g) The "lock-up" agreements between you and certain
shareholders, officers and directors of the Company relating to sales and       
certain other dispositions of shares of Common Stock or certain other           
securities, delivered to you on or before the date hereof, shall be in full     
force and effect on the Closing Date.                                           

  The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the delivery to you on the Option Closing Date  
of such documents as you may reasonably request with respect to the good        
standing of the Company, the due authorization and issuance of the Additional   
Shares and other matters related to the issuance of the Additional Shares.      

       7. Covenants of the Company. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants with each           
Underwriter as follows:                                                         

             (a) To furnish to you, without charge, three signed copies of
the Registration Statement (including exhibits thereto and documents            
incorporated by reference) and for delivery to each other Underwriter a         
conformed copy of the Registration Statement (without exhibits thereto but      
including documents incorporated by reference) and to furnish to you in New York
City, without charge, prior to 10:00 a.m. New York City time on the business day
next succeeding the date of this Agreement and during the period mentioned in   
Section 7(c) below, as many copies of the Prospectus, any documents incorporated
by reference, and any supplements and amendments thereto or to the Registration 
Statement as you may reasonably request. The terms "supplement" and "amendment" 
or "amend" as used in this Agreement shall include all documents subsequently   
filed by the Company with the Commission pursuant to the Exchange Act, that are 
deemed to be incorporated by reference in the Prospectus.                       

               (b) Before amending or supplementing the Registration Statement
or the Prospectus, to furnish to you a copy of each such proposed amendment or  
supplement and not to file any such proposed amendment or supplement to which   
you reasonably object, and to file with the Commission within the applicable    
period specified in Rule 424(b) under the Securities Act any prospectus required
to be filed pursuant to such Rule.                                              

             (c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the Underwriters the    
Prospectus is required by law to be delivered in connection with sales by an    
Underwriter or dealer, any event shall occur or condition exist as a result of  
which it is necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus is    

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delivered to a purchaser, not misleading, or if, in the opinion of counsel for  
the Underwriters, it is necessary to amend or supplement the Prospectus to      
comply with applicable law, forthwith to prepare, file with the Commission and  
furnish, at its own expense, to the Underwriters and to the dealers (whose names
and addresses you will furnish to the Company) to which Shares may have been    
sold by you on behalf of the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the          
circumstances when the Prospectus is delivered to a purchaser, be misleading or 
so that the Prospectus, as amended or supplemented, will comply with law.       

              (d) To endeavor to qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall reasonably   
request.                                                                        

         (e) To make generally available to the Company's security
holders and to you as soon as practicable an earning statement covering the     
twelve-month period ending June 30, 1999 that satisfies the provisions of       
Section 11(a) of the Securities Act and the rules and regulations of the        
Commission thereunder.                                                          

 8. Expenses. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Sellers agree to 
pay or cause to be paid all expenses incident to the performance of their       
obligations under this Agreement, including: (i) the fees, disbursements and    
expenses of the Company's counsel, the Company's accountants and counsel for the
Selling Shareholders in connection with the registration and delivery of the    
Shares under the Securities Act and all other fees or expenses in connection    
with the preparation and filing of the Registration Statement, any preliminary  
prospectus, the Prospectus and amendments and supplements to any of the         
foregoing, including all printing costs associated therewith, and the mailing   
and delivering of copies thereof to the Underwriters and dealers, in the        
quantities hereinabove specified, (ii) all costs and expenses related to the    
transfer and delivery of the Shares to the Underwriters, including any transfer 
or other taxes payable thereon, (iii) the cost of printing or producing any Blue
Sky or Legal Investment memorandum in connection with the offer and sale of the 
Shares under state securities laws and all expenses in connection with the      
qualification of the Shares for offer and sale under state securities laws as   
provided in Section 7(d) hereof, including filing fees and the reasonable fees  
and disbursements of counsel for the Underwriters in connection with such       
qualification and in connection with the Blue Sky or Legal Investment           
memorandum, (iv) all filing fees and the reasonable fees and disbursements of   
counsel to the Underwriters incurred in connection with the review and          
qualification of the offering of the Shares by the National Association of      
Securities Dealers, Inc., (v) all costs and expenses incident to listing the    
Shares on The Nasdaq National Market, (vi) the cost of printing certificates    
representing the Shares, (vii) the costs and charges of any transfer agent,     
registrar or depositary, (viii) the costs and expenses of the Company relating  
to investor presentations on any "road show" undertaken in connection with the  
marketing of the offering of the Shares, including, without limitation, expenses
associated with the production of road show slides and graphics, fees and       
expenses of any consultants engaged in connection with the road show            
presentations with the prior approval of the Company, travel and lodging        
expenses of the representatives and officers of the Company and any such        
consultants, and the cost of any                                                

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aircraft chartered in connection with the road show, and (ix) all other costs   
and expenses incident to the performance of the obligations of the Company      
hereunder for which provision is not otherwise made in this Section. It is      
understood, however, that except as provided in this Section, Section 7 entitled
"Indemnity and Contribution", and the last paragraph of Section 9 below, the    
Underwriters will pay all of their costs and expenses, including fees and       
disbursements of their counsel, stock transfer taxes payable on resale of any of
the Shares by them and any advertising expenses connected with any offers they  
may make.                                                                       

      The provisions of this Section shall not supersede or otherwise affect
any agreement that the Sellers may otherwise have for the allocation of such    
expenses among themselves.                                                      

      9. Indemnity and Contribution. (a) The Sellers, jointly and severally,
agree to indemnify and hold harmless each Underwriter and each person, if any,  
who controls any Underwriter within the meaning of either Section 15 of the     
Securities Act or Section 20 of the Exchange Act, from and against any and all  
losses, claims, damages and liabilities (including, without limitation, any     
legal or other expenses reasonably incurred in connection with defending or     
investigating any such action or claim) caused by any untrue statement or       
alleged untrue statement of a material fact contained in the Registration       
Statement or any amendment thereof, any preliminary prospectus or the Prospectus
(as amended or supplemented if the Company shall have furnished any amendments  
or supplements thereto), or caused by any omission or alleged omission to state 
therein a material fact required to be stated therein or necessary to make the  
statements therein not misleading, except insofar as such losses, claims,       
damages or liabilities are caused by any such untrue statement or omission or   
alleged untrue statement or omission based upon information relating to any     
Underwriter furnished to the Company in writing by such Underwriter through you 
expressly for use therein.                                                      

               (b) Each Selling Shareholder agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company    
within the meaning of either Section 15 of the Securities Act or Section 20 of  
the Exchange Act, from and against any and all losses, claims, damages and      
liabilities (including, without limitation, any legal or other expenses         
reasonably incurred in connection with defending or investigating any such      
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof, 
any preliminary prospectus or the Prospectus (as amended or supplemented if the 
Company shall have furnished any amendments or supplements thereto), or caused  
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,   
but only with reference to information relating to such Selling Shareholder     
furnished in writing by or on behalf of such Selling Shareholder expressly for  
use in the Registration Statement, any preliminary prospectus, the Prospectus or
any amendments or supplements thereto.                                          

          (c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Sellers, the directors of the Company, the      
officers of the Company who sign the Registration Statement and each person, if 
any, who controls the Company or any                                            

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Selling Shareholder within the meaning of either Section 15 of the Securities   
Act or Section 20 of the Exchange Act from and against any and all losses,      
claims, damages and liabilities (including, without limitation, any legal or    
other expenses reasonably incurred in connection with defending or investigating
any such action or claim) caused by any untrue statement or alleged untrue      
statement of a material fact contained in the Registration Statement or any     
amendment thereof, any preliminary prospectus or the Prospectus (as amended or  
supplemented if the Company shall have furnished any amendments or supplements  
thereto), or caused by any omission or alleged omission to state therein a      
material fact required to be stated therein or necessary to make the statements 
therein not misleading, but only with reference to information relating to such 
Underwriter furnished to the Company in writing by such Underwriter through you 
expressly for use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.                            

      (d) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which     
indemnity may be sought pursuant to Section 9(a), 9(b) or 9(c), such person (the
"INDEMNIFIED PARTY") shall promptly notify the person against whom such         
indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the           
indemnifying party, upon request of the indemnified party, shall retain counsel 
reasonably satisfactory to the indemnified party to represent the indemnified   
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense  
of such indemnified party unless (i) the indemnifying party and the indemnified 
party shall have mutually agreed to the retention of such counsel or (ii) the   
named parties to any such proceeding (including any impleaded parties) include  
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential   
differing interests between them. It is understood that the indemnifying party  
shall not, in respect of the legal expenses of any indemnified party in         
connection with any proceeding or related proceedings in the same jurisdiction, 
be liable for (i) the fees and expenses of more than one separate firm (in      
addition to any local counsel) for all Underwriters and all persons, if any, who
control any Underwriter within the meaning of either Section 15 of the          
Securities Act or Section 20 of the Exchange Act, (ii) the fees and expenses of 
more than one separate firm (in addition to any local counsel) for the Company, 
its directors, its officers who sign the Registration Statement and each person,
if any, who controls the Company within the meaning of either such Section and  
(iii) the fees and expenses of more than one separate firm (in addition to any  
local counsel) for all Selling Shareholders and all persons, if any, who control
any Selling Shareholder within the meaning of either such Section, and that all 
such fees and expenses shall be reimbursed as they are incurred. In the case of 
any such separate firm for the Underwriters and such control persons of any     
Underwriters, such firm shall be designated in writing by Morgan Stanley & Co.  
Incorporated. In the case of any such separate firm for the Company, and such   
directors, officers and control persons of the Company, such firm shall be      
designated in writing by the Company. In the case of any such separate firm for 
the Selling Shareholders and such control persons of any Selling Shareholders,  
such firm shall be designated in writing by the persons named as                
attorneys-in-fact for the Selling Shareholders under the Powers of Attorney. The
indemnifying party shall not be liable for any settlement of any proceeding     
effected without its written consent, but if settled with such consent or if    
there be a final judgment for the plaintiff, the indemnifying party agrees to   
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at   
any time an indemnified party shall have requested an indemnifying party to     
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, the indemnifying party     
agrees that it shall be liable for any settlement of any                        

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proceeding effected without its written consent if (i) such settlement is       
entered into more than 30 days after receipt by such indemnifying party of the  
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such     
settlement. No indemnifying party shall, without the prior written consent of   
the indemnified party, effect any settlement of any pending or threatened       
proceeding in respect of which any indemnified party is or could have been a    
party and indemnity could have been sought hereunder by such indemnified party, 
unless such settlement includes an unconditional release of such indemnified    
party from all liability on claims that are the subject matter of such          
proceeding.                                                                     

             (e) To the extent the indemnification provided for in Section
9(a), 9(b) or 9(c) is unavailable to an indemnified party or insufficient in    
respect of any losses, claims, damages or liabilities referred to therein, then 
each indemnifying party under such paragraph, in lieu of indemnifying such      
indemnified party thereunder, shall contribute to the amount paid or payable by 
such indemnified party as a result of such losses, claims, damages or           
liabilities (i) in such proportion as is appropriate to reflect the relative    
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the Shares  
or (ii) if the allocation provided by clause 9(e)(i) above is not permitted by  
applicable law, in such proportion as is appropriate to reflect not only the    
relative benefits referred to in clause 9(e)(i) above but also the relative     
fault of the indemnifying party or parties on the one hand and of the           
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as   
well as any other relevant equitable considerations. The relative benefits      
received by the Sellers on the one hand and the Underwriters on the other hand  
in connection with the offering of the Shares shall be deemed to be in the same 
respective proportions as the net proceeds from the offering of the Shares      
(before deducting expenses) received by each Seller and the total underwriting  
discounts and commissions received by the Underwriters, in each case as set     
forth in the table on the cover of the Prospectus, bear to the aggregate Public 
Offering Price of the Shares. The relative fault of the Sellers on the one hand 
and the Underwriters on the other hand shall be determined by reference to,     
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to    
information supplied by the Sellers or by the Underwriters and the parties'     
relative intent, knowledge, access to information and opportunity to correct or 
prevent such statement or omission. The Underwriters' respective obligations to 
contribute pursuant to this Section 9 are several in proportion to the          
respective number of Shares they have purchased hereunder, and not joint.       

               (f) The Sellers and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 9 were determined by 
pro rata allocation (even if the Underwriters were treated as one entity for    
such purpose) or by any other method of                                         

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allocation that does not take account of the equitable considerations referred  
to in Section 9(e). The amount paid or payable by an indemnified party as a     
result of the losses, claims, damages and liabilities referred to in the        
immediately preceding paragraph shall be deemed to include, subject to the      
limitations set forth above, any legal or other expenses reasonably incurred by 
such indemnified party in connection with investigating or defending any such   
action or claim. Notwithstanding the provisions of this Section 9, no           
Underwriter shall be required to contribute any amount in excess of the amount  
by which the total price at which the Shares underwritten by it and distributed 
to the public were offered to the public exceeds the amount of any damages that 
such Underwriter has otherwise been required to pay by reason of such untrue or 
alleged untrue statement or omission or alleged omission. No person guilty of   
fraudulent misrepresentation (within the meaning of Section 11(f) of the        
Securities Act) shall be entitled to contribution from any person who was not   
guilty of such fraudulent misrepresentation. The remedies provided for in this  
Section 9 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.            

               (g) The indemnity and contribution provisions contained in this
Section 9 and the representations, warranties and other statements of the       
Company and the Selling Shareholders contained in this Agreement shall remain   
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any Underwriter or any
person controlling any Underwriter, any Selling Shareholder or any person       
controlling any Selling Shareholder, or the Company, its officers or directors  
or any person controlling the Company and (iii) acceptance of and payment for   
any of the Shares.                                                              

              (h) Notwithstanding any other provision of this Agreement, the
liability of each Selling Shareholder under the expense agreements contained in 
Section 8 hereof and the indemnity and contribution agreements contained in this
Section 9 shall be limited to an amount equal to the net proceeds received by   
such Selling Shareholder from the public offering of the Shares sold by such    
Selling Shareholder to the Underwriters. In addition, no Selling Shareholder    
shall be liable under the expense agreements contained in Section 8 hereof and  
the indemnity and contribution agreements contained in this Section 9 unless and
until the Underwriters have made written demand on the Company for payment under
such respective sections which shall not have been paid by the Company within 45
days after receipt of such demand. The Company and the Selling Shareholders may 
agree, as among themselves and without limiting the rights of the Underwriters  
under this Agreement, as to the respective amounts of such liability for which  
they each shall be responsible, including, without limitation, allocating       
between the Company and the Selling Shareholders the liability resulting in a   
breach of the representations and warranties of the Company and the Selling     
Shareholders hereunder.                                                         

  10. Termination. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of  
this Agreement and prior to the Closing Date (i) trading generally shall have   
been suspended or materially limited on or by, as the case may be, any of the   
New York Stock Exchange, the American Stock Exchange, the National Association  
of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago 
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any          
securities of the Company shall have been suspended on any exchange or in any   
over-the-counter market, (iii) a                                                

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general moratorium on commercial banking activities in New York shall have been 
declared by either Federal or New York State authorities or (iv) there shall    
have occurred any outbreak or escalation of hostilities or any change in        
financial markets or any calamity or crisis that, in your judgment, is material 
and adverse and (b) in the case of any of the events specified in clauses       
10(a)(i) through 10(a)(iv), such event, singly or together with any other such  
event, makes it, in your judgment, impracticable to market the Shares on the    
terms and in the manner contemplated in the Prospectus.                         

       11. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.         

       If, on the Closing Date or the Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Shares that
it has or they have agreed to purchase hereunder on such date, and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but   
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares to be purchased on such date, the other Underwriters shall be     
obligated severally in the proportions that the number of Firm Shares set forth 
opposite their respective names in Schedule II bears to the aggregate number of 
Firm Shares set forth opposite the names of all such non-defaulting             
Underwriters, or in such other proportions as you may specify, to purchase the  
Shares which such defaulting Underwriter or Underwriters agreed but failed or   
refused to purchase on such date; provided that in no event shall the number of 
Shares that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 11 by an amount in excess of one-ninth of    
such number of Shares without the written consent of such Underwriter. If, on   
the Closing Date, any Underwriter or Underwriters shall fail or refuse to       
purchase Firm Shares and the aggregate number of Firm Shares with respect to    
which such default occurs is more than one-tenth of the aggregate number of Firm
Shares to be purchased, and arrangements satisfactory to you, the Company and   
the Selling Shareholders for the purchase of such Firm Shares are not made      
within 36 hours after such default, this Agreement shall terminate without      
liability on the part of any non-defaulting Underwriter, the Company or the     
Selling Shareholders. In any such case either you or the relevant Sellers shall 
have the right to postpone the Closing Date, but in no event for longer than    
seven days, in order that the required changes, if any, in the Registration     
Statement and in the Prospectus or in any other documents or arrangements may be
effected. If, on the Option Closing Date, any Underwriter or Underwriters shall 
fail or refuse to purchase Additional Shares and the aggregate number of        
Additional Shares with respect to which such default occurs is more than        
one-tenth of the aggregate number of Additional Shares to be purchased, the     
non-defaulting Underwriters shall have the option to (i) terminate their        
obligation hereunder to purchase Additional Shares or (ii) purchase not less    
than the number of Additional Shares that such non-defaulting Underwriters would
have been obligated to purchase in the absence of such default. Any action taken
under this paragraph shall not relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.             

    If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of any Seller to comply with
the terms or to fulfill any of the conditions of this Agreement, or if for any  
reason any Seller shall be unable to                                            

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perform its obligations under this Agreement, the Sellers will reimburse the    
Underwriters or such Underwriters as have so terminated this Agreement with     
respect to themselves, severally, for all out-of-pocket expenses (including the 
fees and disbursements of their counsel) reasonably incurred by such            
Underwriters in connection with this Agreement or the offering contemplated     
hereunder.                                                                      

12. Counterparts. This Agreement may be signed in two or more   
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.                    

        13. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.                     

      14. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of    
this Agreement.                                                                 

             Very truly yours,

        EXCITE, INC.

By: 
                                        ----------------------------------------
 Name:
  Title:

Accepted as of the date hereof                                                  

Morgan Stanley & Co. Incorporated                                               
BancAmerica Robertson Stephens                                                  

Acting severally on behalf                                                      
of themselves and the several Underwriters                                
named in Schedule I hereto.                                               

By: Morgan Stanley & Co. Incorporated                                           

By:                                                                             
-------------------------------------                                     
Name:                                                                     
Title:                                                                    

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                                                                [Download Table]


                                   SCHEDULE I                             

                                                            NUMBER OF FIRM
                                                             SHARES TO BE 
SELLING SHAREHOLDER                                            PURCHASED  
-------------------                                            ---------  

                                                                          
George Bell                                                     25,000    

Joseph R. Kraus, IV                                             25,000    

Graham Spencer                                                  25,000    

Brett T Bullington                                              17,500    

Robert C. Hood                                                  12,500    

Kenneth Wachtel                                                 12,500    
                                                               -------    

                     Total ..............................      117,500    
                                                               =======    

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 SCHEDULE II

                                                                [Download Table]


                                                NUMBER OF FIRM    
                                                 SHARES TO BE     
UNDERWRITER                                        PURCHASED      
-----------                                                       

                                                                  
Morgan Stanley & Co. Incorporated                                 

BancAmerica Robertson Stephens                                    

[NAMES OF OTHER UNDERWRITERS]                                     

                                               -------------------
                     Total................          1,232,500     
                                               ===================

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 EXHIBIT A

[FORM OF LOCK-UP LETTER]

EXCITE, INC.

April __, 1998

Morgan Stanley & Co. Incorporated                                               
BancAmerica Robertson Stephens                                                  
c/o Morgan Stanley & Co. Incorporated                                           
1585 Broadway                                                                   
New York, NY  10036                                                             

Dear Sirs and Mesdames:                                                         

  The undersigned understands that Morgan Stanley & Co. Incorporated
("Morgan Stanley") proposes to enter into an Underwriting Agreement (the        
"Underwriting Agreement") with Excite, Inc., a California corporation (the      
"Company") providing for the public offering (the "Public Offering") by the     
several Underwriters, including Morgan Stanley (the "Underwriters"), of         
______________ shares (the "Shares") of the Common Stock (no par value), of the 
Company (the "Common Stock").                                                   

      To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the           
undersigned hereby agrees that, without the prior written consent of Morgan     
Stanley on behalf of the Underwriters, it will not, during the period commencing
on the date hereof and ending 90 days after the date of the final prospectus    
relating to the Public Offering (the "Prospectus"), (1) offer, pledge, sell,    
contract to sell, sell any option or contract to purchase, purchase any option  
or contract to sell, grant any option, right or warrant to purchase, lend, or   
otherwise transfer or dispose of, directly or indirectly, any shares of Common  
Stock or any securities convertible into or exercisable or exchangeable for     
Common Stock or (2) enter into any swap or other arrangement that transfers to  
another, in whole or in part, any of the economic consequences of ownership of  
Common Stock, whether any such transaction described in clause (1) or (2) above 
is to be settled by delivery of Common Stock or such other securities, in cash  
or otherwise. The foregoing sentence shall not apply to (a) the sale of any     
Shares to the Underwriters pursuant to the Underwriting Agreement or (b)        
transactions relating to shares of Common Stock or other securities acquired in 
open market transactions after the completion of the Public Offering. In        
addition, the undersigned agrees that, without the prior written consent of     
Morgan Stanley on behalf of the Underwriters, it will not, during the period    

E-1 

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commencing on the date hereof and ending 90 days after the date of the          
Prospectus, make any demand for or exercise any right with respect to, the      
registration of any shares of Common Stock or any security convertible into or  
exercisable or exchangeable for Common Stock.                                   

                    Whether or not the Public Offering actually occurs depends
on a number of factors, including market conditions.                            
Any Public Offering will only be made pursuant to an Underwriting Agreement, the
terms of which are subject to negotiation between the Company and the           
Underwriters.                                                                   

Very truly yours,   

                              --------------------------------------------------
(Name)              

                              --------------------------------------------------
(Address)           

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Dates Referenced Herein and Documents Incorporated by Reference

		Referenced-On Page
This ‘S-3/A’ Filing	Date	First	Last	Other Filings

	6/30/99	17		SC 13D/A
Filed on:	6/9/98
	6/1/98	12		8-K
				List all Filings

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Filing Submission 0000891618-98-002801 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)

Excite Inc – ‘S-3/A’ on 6/9/98 – EX-1.01

As of: Tuesday, 6/9/98 · Accession #: 891618-98-2801 · File #: 333-53061

Previous ‘S-3’: ‘S-3/A’ on 5/22/98 · Next: ‘S-3/A’ on 6/29/98 · Latest: ‘S-3/A’ on 7/6/98

Pre-Effective Amendment to Registration Statement for Securities Offered Pursuant to a Transaction — Form S-3Filing Table of Contents

EX-1.01 — Form of Underwriting AgreementExhibit Table of Contents

Dates Referenced Herein and Documents Incorporated by Reference

Pre-Effective Amendment to Registration Statement for Securities Offered Pursuant to a Transaction — Form S-3
Filing Table of Contents

EX-1.01 — Form of Underwriting Agreement
Exhibit Table of Contents