EXHIBIT 10.17
RESTRICTED STOCK PURCHASE AGREEMENT
This Agreement is made and entered into as of July 29, 1996 (the
"Effective Date") between AT HOME CORPORATION, a Delaware corporation (the
---------------
"Company"), and Xxx Xxxxxxx ("Purchaser").
-------- ---------
RECITALS
--------
A. The Company desires to provide equity incentives to certain key
employees pursuant to this Restricted Stock Purchase Agreement, which agreement
is intended to qualify as a compensatory benefit plan or agreement within the
meaning of Rule 701 under the Securities Act of 1933, as amended.
B. Purchaser possesses sufficient business and financial experience,
and/or sufficient knowledge of and/or relationship to the Company and its
management, as to enable the Company to lawfully issue shares of its Common
Stock to Purchaser without the need for registration or qualification of such
shares under the Securities Act of 1933, as amended, and all applicable state
"blue sky" laws.
C. The Company desires to sell to Purchaser, and Purchaser desires
to purchase from the Company, the shares of the Company's Series A Common Stock.
NOW, THEREFORE, the parties agree as follows:
1. PURCHASE OF SHARES. On the Effective Date and subject to the
-------------------
terms and conditions of this Agreement, Purchaser hereby purchases from the
Company, and Company hereby sells to Purchaser, an aggregate of 275,000 shares
of the Company's Series A Common Stock, $0.01 par value (the "Shares") at an
------
purchase price of $27,500.00 (the "Purchase Price") or $0.10 per Share (the
--------------
"Purchase Price Per Share"). As used in this Agreement, the term "Shares"
-------------------------
refers to the Shares purchased under this Agreement and includes all securities
received (a) in replacement of the Shares, (b) as a result of stock dividends or
stock splits in respect of the Shares, and (c) in replacement of the Shares in a
recapitalization, merger, reorganization or the like.
2. PAYMENT OF PURCHASE PRICE; CLOSING.
-----------------------------------
(A) DELIVERIES BY PURCHASER. Purchaser hereby delivers to the
------------------------
Company (i) a check made out to the order of the Company in the amount of
$27,500.00 in payment of the Purchase Price of the Shares, a copy of which is
attached hereto as Exhibit 1; and (ii) two (2) copies of a blank Stock Power and
---------
Assignment Separate from Stock Certificate in the form of Exhibit 2 attached
---------
hereto (the "Stock Powers"), duly executed by Purchaser and (if applicable)
------------
Purchaser's spouse.
(B) DELIVERIES BY THE COMPANY. Upon its receipt of the entire
--------------------------
Purchase Price and all the documents to be executed and delivered by Purchaser
to the Company under Section 2(a), the Company will issue a duly executed stock
certificate evidencing the Shares in the name of Purchaser, with such
certificate to be placed in escrow as provided in Section 8 until expiration or
termination of both the Company's Repurchase Option and Right of First Refusal
described in Sections 5 and 6.
3. REPRESENTATIONS AND WARRANTS OF PURCHASER. Purchaser represents
------------------------------------------
and warrants to the Company that:
(A) PURCHASE FOR OWN ACCOUNT FOR INVESTMENT. Purchaser is
----------------------------------------
purchasing the Shares for Purchaser's own account for investment purposes only
and not with a view to, or for sale in connection with, a
distribution of the Shares within the meaning of the Securities Act of 1933,
as amended (the "1933 Act"). Purchaser has no present intention of selling or
---- ---
otherwise disposing of all or any portion of the Shares and no one other than
Purchaser has any beneficial ownership of any of the Shares.
(B) ACCESS TO INFORMATION. Purchaser has had access to all
----------------------
information regarding the Company and its present and prospective business,
assets, liabilities and financial condition that Purchaser reasonably considers
important in making the decision to purchase the Shares, and Purchaser has had
ample opportunity to ask questions of the Company's representatives concerning
such matters and this investment.
(C) UNDERSTANDING OF RISKS. Purchaser is fully aware of: (i)
-----------------------
the highly speculative nature of the investment in the Shares; (ii) the
financial hazards involved; (iii) the lack of liquidity of the Shares and the
restrictions on transferability of the Shares (e.g., that Purchaser may not be
----
able to sell or dispose of the Shares or use them as collateral for loans); (iv)
the qualifications and backgrounds of the management of the Company; and (v) the
tax consequences of investment in the Shares.
(D) PURCHASER'S QUALIFICATIONS. Purchaser has a preexisting
---------------------------
personal or business relationship with the Company and/or certain of its
officers and/or directors of a nature and duration sufficient to make Purchaser
aware of the character, business acumen and general business and financial
circumstances of the Company and/or such officers and directors. By reason of
Purchaser's business or financial experience, Purchaser is capable of evaluating
the merits and risks of this investment, has the ability to protect Purchaser's
own interests in this transaction and is financially capable of bearing a total
loss of this investment.
(E) NO GENERAL SOLICITATION. At no time was Purchaser
------------------------
presented with or solicited by any publicly issued or circulated newspaper,
mail, radio, television or other form of general advertising or solicitation in
connection with the offer, sale and purchase of the Shares.
(F) COMPLIANCE WITH SECURITIES LAWS. Purchaser understands and
--------------------------------
acknowledges that, in reliance upon the representations and warranties made by
Purchaser herein, the Shares are not being registered with the Securities and
Exchange Commission ("SEC") under the 1933 Act or being qualified under the
---
California Corporate Securities Law of 1968, as amended (the "Law"), but instead
---
are being issued under an exemption or exemptions from the registration and
qualification requirements of the 1933 Act and the Law or other applicable state
securities laws which may impose certain restrictions on Purchaser's ability to
transfer the Shares.
(G) RESTRICTIONS ON TRANSFER. Purchaser acknowledges and
-------------------------
agrees that the Company, in its discretion, may elect to issue the Shares under
one or more of several different exemptions from the registration and
qualification requirements of the 1933 Act and the Law and that Purchaser's
ability to transfer the Shares in compliance with such laws will be affected by
the Company's choice of exemption. Purchaser further understands that the
Company's choice of exemptions may not be definitively made until a later date
and the Company is entirely free in its discretion to choose which exemption or
exemptions it will rely upon to exempt the sale of Shares to Purchaser.
Purchaser understands that Purchaser may not transfer any Shares unless such
Shares are registered under the 1933 Act or qualified under the Law or unless,
in the opinion of counsel to the Company, exemptions from such registration and
qualification requirements are available. Purchaser understands that only the
Company may file a registration statement with the SEC or the California
Commissioner of Corporations and that the Company is under no obligation to do
so with respect to the Shares. Purchaser has also been advised that exemptions
from registration and qualification may not be available or may not permit
Purchaser to transfer all or any of the Shares in the amounts or at the times
proposed by Purchaser.
(H) RULE 144. Purchaser acknowledges that SEC Rule 144
---------
promulgated under the 1933 Act, which permits certain limited sales of
unregistered securities, is not presently available with respect to the Shares
-2-
and, in any event, may require that the Shares be held for a minimum of two
years, and in certain cases three years, after they have been purchased and paid
--------
for (within the meaning of Rule 144), before they may be resold under Rule 144.
---
Purchaser understands that Rule 144 will remain unavailable indefinitely with
respect to transfers of the Shares so long as Purchaser remains an "affiliate"
of the Company and "current public information" about the Company (as defined in
Rule 144) is not publicly available. In addition, Purchaser understands that all
public resales of the Shares by Purchaser at a time when Purchaser is an
affiliate of the Company must comply with the provisions of Rule 144.
(I) RULE 701. If the Shares are issued pursuant to the exemption
---------
provided by Rule 701 promulgated under the 1933 Act, then the Shares will become
freely tradable by persons who are non-affiliates of the Company under SEC Rule
701 promulgated under the 1933 Act, subject to limited conditions regarding the
method of sale, 90 days after the first sale of common stock of the Company to
the general public pursuant to a registration statement filed with and declared
effective by the SEC, subject to any transfer restrictions imposed by applicable
state securities laws, the lengthier market standoff agreement contained in this
Agreement or any other agreement entered into by Purchaser. Under Rule 701,
affiliates must comply with the provisions (other than the holding period
requirements) of Rule 144.
(J) RULE 504. If the Company elects to issue the Shares to
---------
Purchaser under the exemption provided by Rule 504 of Regulation D promulgated
under the 1933 Act, then the Shares should be freely tradable by non-affiliates
of the Company under the 1933 Act, subject to any transfer restrictions imposed
by applicable state securities laws, the lengthier market stand-off agreement
contained in this Agreement or any other contractual restrictions contained in
this Agreement or in any other agreement entered into by Purchaser. However,
affiliates of the Company must continue to comply with the provisions (other
than the holding period requirements) of Rule 144. As noted above, Rule 144 is
not presently available.
(K) TERMS OF PURCHASE AGREEMENT ACCEPTED. Purchaser has
-------------------------------------
received a copy of this Agreement, has read and understands the terms of this
Agreement, and agrees to be bound by its terms and conditions. Purchaser
acknowledges that there may be adverse tax consequences upon purchase and
disposition of the Shares, and that Purchaser should consult a tax adviser prior
to such purchase or disposition.
4. MARKET STANDOFF AGREEMENT. Purchaser agrees in connection with
--------------------------
any registration of the Company's securities under the 1933 Act that, upon the
request of the Company or the underwriters managing any registered public
offering of the Company's securities, Purchaser will not sell or otherwise
dispose of any Shares without the prior written consent of the Company or such
managing underwriters, as the case may be, for a period of time (not to exceed
one year) after the effective date of such registration requested by such
managing underwriters and subject to all restrictions as the Company or the
managing underwriters may specify for employee-shareholders generally.
5. COMPANY'S REPURCHASE OPTION. The Company has the option to
----------------------------
repurchase all or a portion of the Unvested Shares (as defined below) on the
terms and conditions set forth in this Section (the "Repurchase Option").
-----------------
(A) DEFINITION OF "EMPLOYED BY THE COMPANY"; "TERMINATION DATE".
-----------------------------------------------------------
For purposes of this Agreement, Purchaser will be considered to be "employed by
-----------
the Company" if the Board of Directors of the Company determines that Purchaser
-----------
is rendering substantial services as an officer or employee to the Company or to
any parent, subsidiary or affiliate of the Company. In case of any dispute as
to whether Purchaser is employed by the Company, the Board of Directors of the
Company will have discretion to determine whether Purchaser has ceased to be
employed by the Company or any parent, subsidiary or affiliate of the Company
and the effective date on which Purchaser's employment terminated (the
"Termination Date").
----------------
-3-
(B) UNVESTED AND VESTED SHARES. "Unvested Shares" are Shares
--------------------------- ---------------
which are subject to the Company's Repurchase Option. "Vested Shares" are Shares
-------------
which are no longer subject to the Company's Repurchase Obligation. On the
Effective Date, all of the Shares will be Unvested Shares. Shares will become
Vested Shares as follows:
(i) If Purchaser has been continuously employed by the Company
at all times from the Effective Date until July 29, 1997 (the "Standard Vesting
----------------
Date"), then on the Standard Vesting Date 55,000 of the Shares will become
----
Vested Shares; and thereafter, for so long (and only for so long) as Purchaser
remains continuously employed by the Company at all times after the Standard
Vesting Date, an additional 4,583.33 of the Shares will become Vested Shares
upon the 29th day of each succeeding month that elapses after the Standard
Vesting Date until July 29, 2000.
(ii) If Purchaser has been continuously employed by the Company
at all times from the Effective Date until January 29, 1997 (the "Special
-------
Vesting Date"), then on the Special Vesting Date 13,750 of the Shares will
------------
become Vested Shares; and thereafter, for so long (and only for so long) as
Purchaser remains continuously employed by the Company at all times after the
Special Vesting Date, an additional 2,291.67 of the Shares will become Vested
Shares upon the 29th day of each succeeding month that elapses after the
Special Vesting Date until July 29, 1998.
Notwithstanding the foregoing, no Shares will become Vested Shares after the
Termination Date.
(C) ADJUSTMENTS. The number of Shares that are Vested Shares or
------------
Unvested Shares will be proportionally adjusted to reflect any stock dividend,
stock split, reverse stock split or recapitalization of the Series A Common
Stock of the Company occurring after the Effective Date.
(D) EXERCISE OF REPURCHASE OPTION AT ORIGINAL PRICE. At any
------------------------------------------------
time within ninety (90) days after the Termination Date, the Company may elect
to repurchase any or all of the Unvested Shares by giving Purchaser written
notice of exercise of the Repurchase Option. The Company and/or its assignee(s)
will then have the option to repurchase from Purchaser (or from Purchaser's
personal representative as the case may be) any or all of the Unvested Shares at
the Purchaser's original Purchase Price Per Share (as adjusted to reflect any
stock dividend, stock split, reverse stock split or recapitalization of the
Series A Common Stock of the Company occurring after the Effective Date).
(E) PAYMENT OF REPURCHASE PRICE. The repurchase price payable to
----------------------------
purchase Unvested Shares upon exercise of the Repurchase Option will be payable,
at the option of the Company or its assignee(s), by check or by cancellation of
all or a portion of any outstanding indebtedness of Purchaser to the Company (or
to such assignee) or by any combination thereof. The repurchase price will be
paid without interest within ninety (90) days after the Termination Date.
(F) RIGHT OF TERMINATION UNAFFECTED. Nothing in this Agreement
--------------------------------
will be construed to limit or otherwise affect in any manner whatsoever the
right or power of the Company (or any parent, subsidiary or affiliate of the
Company) to terminate Purchaser's employment at any time for any reason or no
reason, with or without cause.
6. RIGHT OF FIRST REFUSAL. Unvested Shares may not be sold or
-----------------------
otherwise transferred by Purchaser without the Company's prior written consent.
Before any Vested Shares held by Purchaser or any transferee of such Shares
(either being sometimes referred to herein as the "Holder") may be sold or
------
otherwise transferred (including without limitation a transfer by gift or
operation of law), the Company and/or its assignee(s)
-4-
will have a right of first refusal to purchase the Vested Shares to be sold or
transferred (the "Offered Shares") on the terms and conditions set forth in this
--------------
Section (the "Right of First Refusal").
----------------------
(A) NOTICE OF PROPOSED TRANSFER. The Holder of the Shares will
----------------------------
deliver to the Company a written notice (the "Notice") stating: (i) the
------
Holder's bona fide intention to sell or otherwise transfer the Offered Shares;
(ii) the name, address and phone/fax number of each proposed purchaser or other
transferee ("Proposed Transferee"); (iii) the number of Offered Shares to be
-------------------
transferred to each Proposed Transferee; (iv) the bona fide cash price or other
consideration for which the Holder proposes to transfer the Offered Shares (the
"Offered Price") and (unless waived by the Company) a brief written explanation,
-------------
signed by the Holder and the Proposed Transferee, of how the Offered Price was
arrived at; and (v) that the Holder will offer to sell the Offered Shares to the
Company and/or its assignee(s) at the Offered Price as provided in this Section.
A true and correct copy of the Proposed Transferee's bona fide offer shall be
provided to the Company together with the Notice.
(B) EXERCISE OF RIGHT OF FIRST REFUSAL. At any time within
-----------------------------------
sixty (60) days after the date of the Notice, the Company and/or its assignee(s)
may, by giving written notice to the Holder, elect to purchase all (but not less
than all) of the Offered Shares proposed to be transferred to any one or more of
the Proposed Transferees named in the Notice, at the purchase price determined
in accordance with subsection (c) below.
(C) PURCHASE PRICE. The purchase price for the Offered Shares
---------------
purchased under this Section will be the Offered Price. If the Offered Price
includes consideration other than cash, then the value of the non-cash
consideration as determined in good faith by the Company's Board of Directors
will conclusively be deemed to be the cash equivalent value of such non-cash
consideration.
(D) PAYMENT. Payment of the purchase price for Offered Shares
--------
will be payable, at the option of the Company and/or its assignee(s) (as
applicable), by check or by cancellation of all or a portion of any outstanding
indebtedness of the Holder to the Company (or to such assignee, in the case of a
purchase of Offered Shares by such assignee) or by any combination thereof. The
purchase price will be paid without interest within sixty (60) days after the
Company's receipt of the Notice, or, at the option of the Company and/or its
assignee(s), in the manner and at the time(s) set forth in the Notice.
(E) HOLDER'S RIGHT TO TRANSFER. If all of the Offered Shares
---------------------------
proposed in the Notice to be transferred to a given Proposed Transferee are not
purchased by the Company and/or its assignee(s) as provided in this Section,
then the Holder may sell or otherwise transfer such Offered Shares to that
Proposed Transferee at the Offered Price or at a higher price, provided that
--------
such sale or other transfer is consummated within 120 days after the date of the
Notice, and provided further, that: (i) any such sale or other transfer is
-------- -------
effected in compliance with all applicable securities laws; and (ii) the
Proposed Transferee agrees in writing that the provisions of this Section will
continue to apply to the Offered Shares in the hands of such Proposed
Transferee. If the Offered Shares described in the Notice are not transferred to
the Proposed Transferee within such 120 day period, then a new Notice must be
given to the Company, and the Company will again be offered the Right of First
Refusal before any Shares held by the Holder may be sold or otherwise
transferred.
(F) EXEMPT TRANSFERS. Notwithstanding anything to the contrary
-----------------
in this Section, the following transfers of Shares will be exempt from the Right
of First Refusal: (i) the transfer of any or all of the Shares during
Purchaser's lifetime by gift or on Purchaser's death by will or intestacy to
Purchaser's "immediate family" (as defined below) or to a trust for the benefit
of Purchaser or Purchaser's immediate family, provided that each transferee or
other recipient agrees in a writing satisfactory to the Company that the
provisions of this Section will continue to apply to the transferred Shares in
the hands of such transferee or other recipient; (ii) any transfer of Shares
made pursuant to a statutory merger or statutory consolidation of the Company
with or into another corporation or corporations (except that the Right of First
Refusal will continue to apply thereafter to such Shares,
-5-
in which case the surviving corporation of such merger or consolidation shall
succeed to the rights or the Company under this Section unless the agreement of
merger or consolidation expressly otherwise provides); (iii) any transfer of
Shares pursuant to the winding up and dissolution of the Company; or (iv) any
transfer of Shares made in accordance with Section 5 or 6 of this Agreement. As
used herein, the term "immediate family" will mean Purchaser's spouse, lineal
----------------
descendant or antecedent, father, mother, brother or sister, adopted child or
grandchild, or the spouse of any child, adopted child, grandchild or adopted
grandchild of Purchaser.
(G) TERMINATION OF RIGHT OF FIRST REFUSAL. The Right of First
--------------------------------------
Refusal will terminate as to all Shares on the effective date of the first sale
of common stock of the Company to the general public pursuant to a registration
statement filed with and declared effective by the SEC under the 1933 Act (other
than a registration statement relating solely to the issuance of common stock
pursuant to a business combination or an employee incentive or benefit plan).
(H) ENCUMBRANCES ON VESTED SHARES. Purchaser may xxxxx x xxxx
------------------------------
or security interest in, or pledge, hypothecate or encumber Vested Shares only
if the Company or its successors and assigns do not hold a lien or security
interest in such share and only if each party to whom such lien or security
interest is granted, or to whom such pledge, hypothecation or other encumbrance
is made, agrees in a writing satisfactory to the Company that: (i) such lien,
security interest, pledge, hypothecation or encumbrance will not apply to such
Vested Shares after they are acquired by the Company and/or its assignees under
this Section; and (ii) the provisions of this Section will continue to apply to
such Vested Shares in the hands of such party and any transferee of such party.
Purchaser may not xxxxx x xxxx or security interest in, or pledge, hypothecate
or encumber any Unvested Shares.
7. RIGHTS AS SHAREHOLDER. Subject to the terms and conditions of
----------------------
this Agreement, Purchaser will have all of the rights of a shareholder of the
Company with respect to the Shares from and after the date that Purchaser
delivers payment of the Purchase Price until such time as Purchaser disposes of
the Shares or the Company and/or its assignee(s) exercise(s) the Repurchase
Option or Right of First Refusal. Upon an exercise of the Repurchase Option or
the Right of First Refusal, Purchaser will have no further rights as a holder of
the Shares so purchased upon such exercise, except the right to receive payment
for the Shares so purchased in accordance with the provisions of this Agreement,
and Purchaser will promptly surrender the stock certificate(s) evidencing the
Shares so purchased to the Company for transfer or cancellation.
8. ESCROW. As security for Purchaser's faithful performance of this
-------
Agreement, Purchaser agrees, immediately upon receipt of the stock
certificate(s) evidencing the Shares, to deliver such certificate(s), together
with the Stock Powers executed by Purchaser and by Purchaser's spouse, if any
(with the date and number of Shares left blank), to the Secretary of the Company
or other designee of the Company ("Escrow Holder"), who is hereby appointed to
-------------
hold such certificate(s) and Stock Powers in escrow and to take all such actions
and to effectuate all such transfers and/or releases of such Shares as are in
accordance with the terms of this Agreement. Purchaser and the Company agree
that Escrow Holder will not be liable to any party to this Agreement (or to any
other party) for any actions or omissions unless Escrow Holder is grossly
negligent or intentionally fraudulent in carrying out the duties of Escrow
Holder under this Section. Escrow Holder may rely upon any letter, notice or
other document executed by any signature purported to be genuine and may rely on
the advice of counsel and obey any order of any court with respect to the
transactions contemplated by this Agreement. The Shares will be released from
escrow upon termination of both the Repurchase Option and the Right of First
Refusal.
9. TAX CONSEQUENCES. Purchaser hereby acknowledges that Purchaser
-----------------
has been informed that, unless an election is filed by the Purchaser with the
Internal Revenue Service (and, if necessary, the proper state taxing
authorities), within 30 days of the purchase of the Shares, electing pursuant to
--------------
Section 83(b) of the Internal Revenue Code (and similar state tax provisions, if
applicable) to be taxed currently on any difference
-6-
between the Purchase Price of the Shares and their fair market value on the date
of purchase, there will be a recognition of taxable income to the Purchaser,
measured by the excess, if any, of the fair market value of the Vested Shares,
at the time they cease to be Unvested Shares, over the purchase price for such
Shares. Purchaser represents that Purchaser has consulted any tax adviser(s)
Purchaser deems advisable in connection with Purchaser's purchase of the Shares
and the filing of the election under Section 83(b) and similar tax provisions. A
form of Election under Section 83(b) is attached hereto as Exhibit 3 for
---------
reference. PURCHASER HEREBY ASSUMES ALL RESPONSIBILITY FOR FILING SUCH ELECTION
AND PAYING ANY TAXES RESULTING FROM SUCH ELECTION OR FOR FAILING TO FILE THE
ELECTION AND PAYING TAXES RESULTING FROM THE LAPSE OF THE REPURCHASE
RESTRICTIONS ON THE UNVESTED SHARES. PURCHASER UNDERSTANDS THAT PURCHASER MAY
SUFFER ADVERSE TAX CONSEQUENCES AS A RESULT OF PURCHASER'S PURCHASE OR
DISPOSITION OF THE SHARES. PURCHASER REPRESENTS THAT PURCHASER HAS CONSULTED
WITH ANY TAX ADVISER PURCHASER DEEMS ADVISABLE IN CONNECTION WITH THE PURCHASE
OR DISPOSITION OF THE SHARES AND THAT PURCHASER IS NOT RELYING ON THE COMPANY
FOR ANY TAX ADVICE.
10. RESTRICTIVE LEGENDS AND STOP-TRANSFER ORDERS.
---------------------------------------------
(A) LEGENDS. Purchaser understands and agrees that the Company will
--------
place the legends set forth below or similar legends on any stock certificate(s)
evidencing the Shares, together with any other legends that may be required by
state or federal securities laws, the Company's Certificate of Incorporation or
Bylaws, any other agreement between Purchaser and the Company or any agreement
between Purchaser and any third party:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES
LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS, PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY
MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN
INDEFINITE PERIOD OF TIME. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE
EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT
AND ANY APPLICABLE STATE SECURITIES LAWS.
A STATEMENT OF THE RIGHTS, PREFERENCES, PRIVILEGES AND RESTRICTIONS GRANTED
TO OR IMPOSED UPON EACH CLASS OR SERIES OF AUTHORIZED SHARES OF THE COMPANY
MAY BE OBTAINED UPON REQUEST AND WITHOUT CHARGE, FROM THE COMPANY'S
SECRETARY AT THE COMPANY'S PRINCIPAL OFFICES.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON PUBLIC RESALE AND TRANSFER, IRREVOCABLE PROXY AND VOTING
PROVISIONS, AND RIGHT OF FIRST REFUSAL AND REPURCHASE OPTIONS HELD BY THE
ISSUER AND/OR ITS ASSIGNEE(S) AS SET FORTH IN A RESTRICTED STOCK PURCHASE
AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE SHARES, A
COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. SUCH
PUBLIC RESALE AND TRANSFER RESTRICTIONS, IRREVOCABLE PROXY AND VOTING
PROVISIONS, AND THE RIGHT OF REPURCHASE AND RIGHT OF FIRST REFUSAL OPTIONS
ARE BINDING ON TRANSFEREES OF THESE SHARES.
-7-
(B) STOP-TRANSFER INSTRUCTIONS. Purchaser agrees that, in order to
---------------------------
ensure compliance with the restrictions imposed by this Agreement, the Company
may issue appropriate "stop-transfer" instructions to its transfer agent, if
any, and if the Company transfers its own securities, it may make appropriate
notations to the same effect in its own records.
(C) REFUSAL TO TRANSFER. The Company will not be required (i) to
--------------------
transfer on its books any Shares that have been sold or otherwise transferred in
violation of any of the provisions of this Agreement or (ii) to treat as owner
of such Shares, or to accord the right to vote or pay dividends, to any
purchaser or other transferee to whom such Shares have been so transferred.
11. COMPLIANCE WITH LAWS AND REGULATIONS. The issuance and transfer of
-------------------------------------
the Shares will be subject to and conditioned upon compliance by the Company and
Purchaser with all applicable state and federal laws and regulations and with
all applicable requirements of any stock exchange or automated quotation system
on which the Company's common stock may be listed or quoted at the time of such
issuance or transfer.
12. SUCCESSORS AND ASSIGNS. The Company may assign any of its rights
-----------------------
under this Agreement, including its rights to repurchase Shares under the
Repurchase Option and the Right of First Refusal. This Agreement will be
binding upon and inure to the benefit of the successors and assigns of the
Company. Subject to the restrictions on transfer herein set forth, this
Agreement will be binding upon Purchaser and Purchaser's heirs, executors,
administrators, successors and assigns.
13. GOVERNING LAW; SEVERABILITY. This Agreement will be governed by and
----------------------------
construed in accordance with the internal laws of the State of California,
excluding that body of laws pertaining to conflict of laws. If any provision of
this Agreement is determined by a court of law to be illegal or unenforceable,
then such provision will be enforced to the maximum extent possible and the
other provisions will remain fully effective and enforceable.
14. NOTICES. Any notice required or permitted hereunder will be given in
--------
writing and will be deemed effectively given upon personal delivery, three (3)
days after deposit in the United States mail by certified or registered mail
(return receipt requested), one (1) business day after its deposit with any
return receipt express courier (prepaid), or one (1) business day after
transmission by facsimile, addressed to the other party at its address (or
facsimile number, in the case of transmission by facsimile) as shown below its
signature to this Agreement, or to such other address as such party may
designate in writing from time to time to the other party.
15. FURTHER INSTRUMENTS. The parties agree to execute such further
--------------------
instruments and to take such further action as may be reasonably necessary to
carry out the purposes and intent of this Agreement.
16. HEADINGS. The captions and headings of this Agreement are included
---------
for ease of reference only and will be disregarded in interpreting or construing
this Agreement. All references herein to Sections will refer to Sections of
this Agreement.
17. ENTIRE AGREEMENT. This Agreement, together with all its Exhibits,
-----------------
constitutes the entire agreement and understanding of the parties with respect
to the subject matter of this Agreement, and supersedes all prior understandings
and agreements, whether oral or written, between the parties hereto with respect
to the specific subject matter hereof.
18. FINANCIAL STATEMENTS. The Company shall provide fiscal year end
--------------------
financial statements to Purchaser on an annual basis at such times as they are
available for distribution to stockholders.
-8-
19. VOTING AGREEMENT. In consideration of the sale of the Shares by the
----------------
Company to Purchaser, Purchaser hereby agrees that, with respect to any matter
upon which the separate vote of the holders of the Company's Series A Common
Stock is required under Section 242(b) of the Delaware General Corporation Law
prior to the closing of the Company's initial public offering of Series A Common
Stock pursuant to a registration statement filed with and declared effective by
the SEC (the "Company IPO"), Purchaser will cast all votes attributable to
-----------
Purchaser's Shares in the same proportion as the holders of the Company's
outstanding shares of Convertible Preferred Stock designated in the Certificate
of Incorporation of the Company (the "Convertible Preferred Stock") cast their
---------------------------
votes upon such matter, or, if there are no such shares of Convertible Preferred
Stock outstanding, in the same manner as the holders of the Company's
outstanding shares of Series B Common Stock cast their votes upon such matter.
Purchaser hereby irrevocably appoints the Secretary of the Company, or any other
person designated by the Secretary of the Company, to act as Purchaser's proxy
until the Company IPO to cast all votes attributable to Purchaser's Shares as
specified in this Section. The obligations of this Section shall be binding on
any transferee to whom the Shares are transferred by Purchaser or any subsequent
transferee. As a condition of any transfer of the Shares prior to the Company
IPO, Purchaser shall require any transferee, and any such transferee shall
require its transferee, to agree to be bound by the provisions of this Section
in the same manner as Purchaser is bound.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed in
duplicate by its duly authorized representative and Purchaser has executed this
Agreement in duplicate, as of the Effective Date.
AT HOME CORPORATION PURCHASER
By: /s/ XXXXXXX X. XXXXXX III /s/ XXX XXXXXXX
-------------------------- ---------------
Xxx Xxxxxxx
Title:
-----------------------
Address: 000 Xxxxxxxxx Xxxxx Address: 000 Xxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000 Xxxxxxxx, XX 00000
-9-
LIST OF EXHIBITS
----------------
Exhibit 1: Purchaser's check in the amount of $27,500.00 in payment of the
Purchase Price of the Shares
Exhibit 2: Stock Power and Assignment Separate from Stock Certificate
Exhibit 3: Election Under Section 83(b) of the Internal Revenue Code
-10-
EXHIBIT 1
---------
COPY OF PURCHASER'S CHECK
-------------------------
EXHIBIT 2
---------
STOCK POWER AND ASSIGNMENT
SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED and pursuant to that certain Restricted Stock Purchase
Agreement dated as of July 29, 1996, (the "Agreement"), the undersigned hereby
---------
sells, assigns and transfers unto _____________________, ______________ shares
of the Series A Common Stock of AT HOME CORPORATION, a Delaware corporation
(the "Company"), standing in the undersigned's name on the books of the
-------
Company represented by Certificate No(s). _____ delivered herewith, and does
hereby irrevocably constitute and appoint the Secretary of the Company as the
undersigned's attorney-in-fact, with full power of substitution, to transfer
said stock on the books of the Company. THIS ASSIGNMENT MAY ONLY BE USED AS
AUTHORIZED BY THE AGREEMENT AND THE EXHIBITS THERETO.
Dated: ______________________, 199___
PURCHASER
______________________________
Xxx Xxxxxxx
______________________________
(Purchaser's Spouse)
INSTRUCTION: Please do not fill in any blanks other than the signature line.
----------- ---
The purpose of this Stock Power and Assignment is to enable the Company and/or
its assigns to exercise its "Repurchase Option" and/or "Right of First Refusal"
set forth in the Agreement without requiring additional signatures on the part
of the Purchaser.
EXHIBIT 3
---------
ELECTION UNDER SECTION 83(B) OF THE
INTERNAL REVENUE CODE
The undersigned Taxpayer hereby elects, pursuant to Section 83(b) of the
Internal Revenue Code, to include in gross income for the Taxpayer's current
taxable year the excess, if any, of the fair market value of the property
described below at the time of transfer over the amount paid for such
property, as compensation for services.
1. TAXPAYER'S NAME: Xxx Xxxxxxx
--------------------------------
TAXPAYER'S ADDRESS: 000 Xxxxx Xxxx
--------------------------------
Xxxxxxxx, XX 00000
--------------------------------
SOCIAL SECURITY NUMBER: ________________________________
2. The property with respect to which the election is made is described as
follows: 275,000 shares of Series A Common Stock of AT HOME CORPORATION,
a Delaware corporation (the "Company"), which is Taxpayer's employer or
-------
the corporation for whom the Taxpayer performs services.
3. The date on which the shares were transferred was July 29, 1996 and this
election is made for calendar year 1996.
4. The shares are subject to the following restrictions: The Company may
repurchase all or a portion of the shares at the Taxpayer's original
purchase price under certain conditions at the time of Taxpayer's
termination of employment or services.
5. The fair market value of the shares (without regard to restrictions other
than restrictions which by their terms will never lapse) was $0.10 per
share at the time of transfer.
6. The amount paid for such shares was $0.10 per share.
7. The Taxpayer has submitted a copy of this statement to the Company.
THIS ELECTION MUST BE FILED WITH THE INTERNAL REVENUE SERVICE ("IRS"), AT THE
---
OFFICE WHERE THE TAXPAYER FILES ANNUAL INCOME TAX RETURNS, WITHIN 30 DAYS
--------------
AFTER THE DATE OF TRANSFER OF THE PROPERTY, AND MUST ALSO BE FILED WITH THE
TAXPAYER'S INCOME TAX RETURNS FOR THE CALENDAR YEAR. THE ELECTION CANNOT BE
REVOKED WITHOUT THE CONSENT OF THE IRS.
Dated: July 29, 1996 ______________________________
Xxx Xxxxxxx
