EXHIBIT 10.01
EXECUTIVE RETENTION AND SEVERANCE AGREEMENT
This Executive Retention and Severance Agreement (the "Agreement") is made and
entered into as of September 7, 2000 (the "Effective Date"), by and between:
@Home Corporation, a Delaware corporation (the "Company")
000 Xxxxxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
and
[name] ("Executive")
[address]
[address]
RECITALS:
A. Executive is a key employee of the Company who possesses valuable knowledge
of the Company, its business and operations and the markets in which the
Company competes.
B. The Company draws upon the knowledge, experience and objective advice of
Executive in order to manage its business for the benefit of the Company's
stockholders.
C. The Company recognizes that if there occurred a Change of Control or other
event that could substantially change the nature and structure of the
Company, the resulting uncertainty regarding the consequences of such an
event could adversely affect the Company's ability to attract, retain and
motivate its key employees, including Executive.
D. On September 7, 2000, the Company's Board of Directors approved the terms of
this Agreement for the benefit of the Company's Section 16 executive officers
in the event of certain terminations prior to or following a Change of
Control.
E. The Company believes that the existence of this Agreement will serve as an
incentive to Executive to remain in the employ of the Company, and would
enhance the Company's ability to call on and rely upon Executive if a Change
of Control were to occur.
F. The Company and Executive desire to enter into this Agreement in order (1) to
encourage Executive to continue to devote Executive's full attention and
dedication to the success of the Company, and (2) to provide specified
compensation and benefits to Executive in the event of a Termination Upon
Change of Control or a Termination in Absence of Change of Control, pursuant
to the terms of this Agreement.
THE COMPANY AND EXECUTIVE AGREE AS FOLLOWS:
1. GENERAL
-------
1.1 Purpose. The purpose of this Agreement is to provide specified
-------
compensation and benefits to Executive in the event of a Termination
Upon Change of Control or a Termination in Absence of Change of
Control.
1.2 No Employment Agreement. This Agreement does not obligate the
-----------------------
Company to continue to employ Executive for any specific period of
time, or in any specific role or geographic location. Subject to the
terms of any applicable written employment agreement between Company
and Executive, Company may assign Executive to other duties, and
either Executive or Company may terminate Executive's employment at
any time for any reason.
1.3 Defined Terms. Capitalized terms used in this agreement shall have
-------------
the meanings set forth in Section 5, unless the context clearly
requires a different meaning.
2. TERMINATION UPON CHANGE OF CONTROL
----------------------------------
2.1 Basic Severance Compensation. In the event of Executive's Termination
----------------------------
Upon Change of Control, Executive shall be entitled to the basic
severance compensation described below.
2.1.1 Accrued Salary and Vacation. All salary and accrued vacation
---------------------------
earned through the date of Executive's termination, less
applicable federal and state withholding, paid upon termination
of employment.
2.1.2 Expenses. Within ten (10) days of submission of proper expense
--------
reports by Executive, the Company shall reimburse Executive for
all expenses incurred by Executive, consistent with past
practices, in connection with the business of the Company prior
to Executive's termination of employment.
2.1.3 Employee Benefits. Executive shall receive the benefits, if
-----------------
any, under any 401(k) plan, nonqualified deferred compensation
plan, employee stock purchase plan and other Company benefit
plans to which Executive may be entitled pursuant to the terms
of such plans.
2.2 Executive Cash Severance Benefits. In the event of Executive's
---------------------------------
Termination Upon Change of Control, Executive shall be entitled to the
additional executive severance benefits described below.
2.2.1 Cash severance payment. Executive shall receive a lump sum
----------------------
payment in an amount equal to twelve (12) months of Executive's
Base Salary, less applicable federal and state withholding,
paid within thirty (30) days of Termination Upon Change of
Control.
2
2.3 Stock Option Acceleration.
-------------------------
2.3.1 Acceleration Following Termination Upon Change of Control. All
---------------------------------------------------------
outstanding stock options granted and restricted stock issued
by the Company to Executive prior to the Change of Control
shall have their vesting fully accelerated so as to be 100%
vested on Executive's Termination Upon Change of Control.
2.3.2 Acceleration Following Non-assumption Upon Change of Control.
------------------------------------------------------------
If there is a Change of Control transaction in which
outstanding stock options granted and restricted stock issued
by the Company prior to the transaction are not fully assumed
by the Successor, or replaced by fully equivalent substitute
options or restricted stock, then (1) all such options and
restricted stock shall have their vesting fully accelerated to
be 100% vested immediately prior to the effective date of the
Change of Control and (2) the Company shall provide reasonable
prior written notice to Executive of (a) the date such
unexercised options will terminate and (b) the period during
which Executive may exercise the fully vested options.
2.4 Extended Insurance Benefits.
---------------------------
2.4.1 Benefit Continuation. Executive shall receive continued
--------------------
provision of the Company's standard employee insurance
coverages, as elected by Executive and in effect immediately
prior to Executive's Termination Upon Change of Control, for
twelve (12) months following such Termination Upon Change of
Control.
2.4.2 Continued Medical Coverage. Following the last date set forth
--------------------------
in Section 2.4.1, if Executive resides in the United States,
Executive shall be entitled to elect continued medical
insurance coverage in accordance with the applicable provisions
of U.S. federal law (COBRA). If such coverage included
Executive's dependents immediately prior to the date of
termination, such dependents also shall be covered at Company
expense during the extension period. For purposes of title X of
the Consolidated Budget Reconciliation Act of 1985 ("COBRA"),
the date of the "qualifying event" for Executive and any
dependents shall be the date upon which the Company-paid
coverage terminates.
2.4.3 Coverage Under Another Plan. Notwithstanding the preceding
---------------------------
provisions of this subsection 2.4, in the event Executive
becomes covered as a primary insured (that is, not as a
beneficiary under a spouse's or partner's plan) under another
employer's group health plan during the period provided for
herein, Executive promptly shall inform the Company and the
Company shall cease provision of continued group health
insurance for Executive and any dependents.
3
3. TERMINATION IN ABSENCE OF CHANGE OF CONTROL
-------------------------------------------
3.1 Basic Severance Compensation. In the event of Executive's Termination
----------------------------
in Absence of Change of Control, Executive shall be entitled to the
basic severance compensation described below.
3.1.1 Accrued Salary and Vacation. All salary and accrued vacation
---------------------------
earned through the date of Executive's termination, less
applicable federal and state withholding, shall be paid upon
termination of employment.
3.1.2 Expenses. Within ten (10) days of submission of proper expense
--------
reports by Executive, the Company shall reimburse Executive for
all expenses incurred by Executive, consistent with past
practices, in connection with the business of the Company prior
to Executive's termination of employment.
3.1.3 Employee Benefits. Executive shall receive the benefits, if
-----------------
any, under any 401(k) plan, nonqualified deferred compensation
plan, employee stock purchase plan and other Company benefit
plans to which Executive may be entitled pursuant to the terms
of such plans.
3.2 Continuation of Base Salary. In the event of Executive's Termination
---------------------------
in Absence of Change of Control, Executive shall be entitled to the
additional executive severance benefits described below.
3.2.1 Cash Severance Payment. Executive shall receive a continuation
----------------------
of Base Salary for a period of twelve (12) months following
Executive's Termination in Absence of Change of Control in
accordance with the Company's normal payroll practice, less
applicable federal and state withholding.
3.3 Vesting Continuation Following Termination in Absence of Change of
------------------------------------------------------------------
Control. All outstanding stock options granted and restricted stock
-------
issued by the Company to Executive prior to Executive's Termination in
Absence of Change of Control shall continue to vest and, in the case
of stock options continue to remain exercisable, as if Executive
remained employed by the Company for an additional twelve (12) months
following Executive's Termination in Absence of Change of Control.
3.4 Extended Insurance Benefits.
---------------------------
3.4.1 Benefit Continuation. Executive shall receive continued
--------------------
provision of the Company's standard employee insurance
coverages, as elected by Executive and in effect immediately
prior to Executive's Termination in Absence of Change of
Control, for twelve (12) months following such Termination in
Absence of Change of Control.
4
3.4.2 Continued Medical Coverage. Following the last date set forth
--------------------------
in Section 3.4.1, if Executive resides in the United States,
Executive shall be entitled to elect continued medical
insurance coverage in accordance with the applicable provisions
of U.S. federal law (COBRA). If such coverage included
Executive's dependents immediately prior to the date of
termination, such dependents also shall be covered at Company
expense during the extension period. For purposes of title X of
the Consolidated Budget Reconciliation Act of 1985 ("COBRA"),
the date of the "qualifying event" for Executive and any
dependents shall be the date upon which the Company-paid
coverage terminates.
3.4.3 Coverage Under Another Plan. Notwithstanding the preceding
---------------------------
provisions of this subsection 3.4, in the event Executive
becomes covered as a primary insured (that is, not as a
beneficiary under a spouse's or partner's plan) under another
employer's group health plan during the period provided for
herein, Executive promptly shall inform the Company and the
Company shall cease provision of continued group health
insurance for Executive and any dependents.
4. FEDERAL EXCISE TAX UNDER SECTION 280G
-------------------------------------
4.1 Reimbursement of Excise Tax. If, due to the benefits provided under
---------------------------
this Agreement, Executive is subject to any excise tax due to
characterization of any amount payable hereunder as excess parachute
payments pursuant to Sections 280G and 4999 of the Internal Revenue
Code of 1986, as amended ( the "Code"), the Company will "gross-up"
the amount payable to Executive (including gross-ups for additional
income and excise taxes) such that the net amount realizable by
Executive is the same as if there were no such excise taxes or income
taxes.
4.2 Determination by Independent Public Accountants. Unless the Company
-----------------------------------------------
and Executive otherwise agree in writing, any determination required
under this Section 4 shall be made in writing by independent public
accountants agreed to by the Company and Executive (the
"Accountants"), whose determination shall be conclusive and binding
upon Executive and the Company for all purposes. For purposes of
making the calculations required by this Section 4, the Accountants
may rely on reasonable, good faith interpretations concerning the
application of Sections 280G and 4999 of the Code. The Company and
Executive shall furnish to the Accountants such information and
documents as the Accountants may reasonably request in order to make
the required determinations. The Company shall bear all fees and
expenses the Accountants may reasonably charge in connection with the
services contemplated by this Section 4.
5. DEFINITIONS
-----------
5.1 Capitalized Terms Defined. Capitalized terms used in this Agreement
-------------------------
shall have the meanings set forth in this Section 5, unless the
context clearly requires a different meaning.
5
5.2 "Base Salary" means the base salary of Executive immediately preceding
-----------
any Change of Control, or in the absence of Change of Control,
immediately preceding Executive's termination of employment.
5.3 "Cause" means:
-----
(a) a good faith determination by the Board of Directors of the
Company that Executive willfully failed to follow the lawful
written directions of the Board of Directors; provided that no
termination for Cause shall occur unless Executive has been
provided with notice of the Company's intention to terminate
Executive for Cause and has had at least 30 days to cure or
correct his or her behavior; or
(b) engagement in gross misconduct which is materially detrimental to
the Company; provided that no termination for Cause shall occur
unless Executive has been provided with notice of the Company's
intention to terminate Executive for Cause and has had at least
30 days to cure or correct his or her behavior; or
(c) willful and repeated failure or refusal to comply in any material
respect to the Company's Assignment and Confidentiality
Agreement, the Company's xxxxxxx xxxxxxx policy, or any other
reasonable policies of the Company where non-compliance would be
materially detrimental to the Company; provided that no
termination for Cause shall occur unless Executive has been
provided with notice of the Company's intention to terminate
Executive for Cause and has had at least 30 days to cure or
correct his or her behavior; or
(d) commission of an unlawful or criminal act (serious in nature)
which the Board of Directors reasonably believes would reflect
adversely on the Company.
5.4 "Change of Control" means:
-----------------
(a) any "person" (as such term is used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act")), other than a trustee or other fiduciary holding
securities of the Company under an employee benefit plan of the
Company, becomes the "beneficial owner" (as defined in Rule 13d-3
promulgated under the Exchange Act), directly or indirectly, of
securities of the Company representing 50% or more of (A) the
outstanding shares of common stock of the Company or (B) the
combined voting power of the Company's then-outstanding
securities; provided that Executive acknowledges that AT&T
Corporation ("AT&T") currently holds in excess of fifty (50%)
percent of the aggregate voting power of the Company's
outstanding securities, and that this provision shall apply with
respect to an acquisition of equity or
6
voting interests by AT&T only if the Company ceases to be a
publicly-held company;
(b) the Company is party to a merger or consolidation, or series of
related transactions, which results in the voting securities of
the Company outstanding immediately prior thereto failing to
continue to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity)
at least fifty (50%) percent of the combined voting power of the
voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation;
(c) the sale or disposition of all or substantially all of the
Company's assets (or consummation of any transaction, or series
of related transactions, having similar effect);
(d) there occurs a change in the composition of the Board of
Directors of the Company within a two-year period, as a result of
which fewer than a majority of the directors are Incumbent
Directors, or a change in the composition of the Board of
Directors that follows a change of control of AT&T in which a
majority of the predecessor AT&T Board members are replaced by
representatives from the entity acquiring AT&T;
(e) the dissolution or liquidation of the Company; or
(f) any transaction or series of related transactions that has the
substantial effect of any one or more of the foregoing.
5.5 "Company" shall mean @Home Corporation, and, following a Change of
-------
Control, any Successor that agrees to assume, or otherwise becomes
bound by operation of law, all the terms and provisions of this
Agreement.
5.6 "Good Reason" means the occurrence of any of the following conditions,
-----------
without Executive's informed written consent:
(a) assignment to Executive of a position, responsibilities or duties
that are not the Substantive Functional Equivalent of the
position, responsibilities and duties which Executive occupied
immediately preceding any Change of Control, or in the absence of
Change of Control, at any time within sixty (60) days immediately
preceding Executive's termination of employment;
(b) a reduction in Executive's Base Salary or Total Annual Cash
Compensation;
(c) the Company's requiring Executive (i) to be based at any office
or location more than 35 miles from the office where Executive
was employed immediately preceding the Change of Control, or in
the absence of Change
7
of Control, immediately preceding Executive's termination of
employment, or (ii) to travel on Company business to a
substantially greater extent than required immediately preceding
the Change of Control, or in the absence of Change of Control,
immediately preceding Executive's termination of employment, or
(d) any material breach by the Company of the terms of this
Agreement, including but not limited to the failure by the
Company to require a Successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to
assume expressly and agree to perform the Company's Change of
Control obligations, as if no such succession had taken place.
5.7 "Incumbent Director" shall mean a director who either (1) is a
------------------
director of the Company as of the Effective Date, or (2) is elected,
or nominated for election, to the Board of Directors of the Company
with the affirmative votes of at least a majority of the Incumbent
Directors at the time of such election or nomination, but (3) was not
elected or nominated in connection with an actual or threatened proxy
contest relating to the election of directors to the Company.
5.8 "Permanent Disability" means that:
--------------------
(a) Executive has been incapacitated by bodily injury, illness or
disease so as to be prevented thereby from engaging in the
performance of Executive's duties;
(b) such total incapacity shall have continued for a period of six
consecutive months; and
(c) such incapacity will, in the opinion of a qualified physician, be
permanent and continuous during the remainder of Executive's
life.
5.9 "Substantive Functional Equivalent" means an employment position
---------------------------------
occupied by Executive after a Change of Control, or in the absence of
Change of Control, immediately preceding Executive's termination of
employment, that:
(a) carries a title that does not connote a lesser rank or corporate
role than the title held by Executive prior to the Change of
Control, or in the absence of Change of Control, at any time
within sixty (60) days immediately preceding Executive's
termination of employment;
(b) does not otherwise constitute a material, adverse change in
Executive's responsibilities or duties, as measured against
Executive's responsibilities or duties prior to the Change of
Control, or in the absence of Change of Control, at any time
within sixty (60) days immediately preceding Executive's
termination of employment, causing it to be of materially lesser
rank or responsibility; and
8
(c) is identified as an executive officer position, for purposes of
the rules promulgated under Section 16 of the Securities Exchange
Act of 1934, of a publicly traded Successor having market
capitalization, net assets and annual revenues no less than those
of the Company prior to the Change of Control, or in the absence
of Change of Control, at any time within sixty (60) days
immediately preceding Executive's termination of employment.
5.10 "Successor" means the Company as defined above and any successor or
assign to substantially all of its business and/or assets.
5.11 "Total Annual Cash Compensation" means the sum of (i) Executive's
annual base salary, plus (ii) 100% of Executive's target annual
incentive for any calendar or fiscal year, as applicable, immediately
preceding the date of any Change of Control, or in the absence of
Change of Control, immediately preceding Executive's termination of
employment.
5.12 "Termination in Absence of Change of Control" means:
(a) any termination of employment of Executive by the Company without
Cause (i) that occurs prior to the date that the Company first
publicly announces it has reached a definitive agreement that
would result in a Change of Control (even though still subject to
approval by the Company's stockholders and other conditions and
contingencies), (ii) that occurs after the Company announces that
it has terminated discussions that would lead to a definitive
agreement and does not thereafter enter into discussions that
lead to such a definitive agreement or (iii) that occurs more
than twenty-four (24) months following a Change of Control; or
(b) any resignation by Executive for Good Reason (i) that occurs
within sixty (60) days following the occurrence of one of the
conditions that constitutes Good Reason, but only where such Good
Reason occurs prior to the date that the Company first publicly
announces it has reached a definitive agreement that would result
in a Change of Control (even though still subject to approval by
the Company's stockholders and other conditions and
contingencies), (ii) that occurs after the Company announces that
it has terminated discussions that would lead to a definitive
agreement and does not thereafter enter into discussions that
lead to such a definitive agreement or (iii) that occurs more
than twenty-four (24) months following a Change of Control.
Notwithstanding the foregoing, the term "Termination in Absence of Change
of Control" shall not include any termination of the employment of Executive (1)
by the Company for Cause; (2) by the Company as a result of the Permanent
Disability of Executive; (3) as a result of the death of Executive; or (4) as a
result of the voluntary termination of employment by Executive for reasons other
than Good Reason.
9
5.13 "Termination Upon Change of Control" means:
(a) any termination of the employment of Executive by the Company
without Cause during the period commencing on or after the date
that the Company first publicly announces a definitive agreement
that would result in a Change of Control (even though still
subject to approval by the Company's stockholders and other
conditions and contingencies) and ending on the date which is
twenty-four (24) months following a Change of Control; or
(b) any resignation by Executive for Good Reason during the period
commencing on or after the date that the Company first publicly
announces a definitive agreement that would result in a Change of
Control (even though still subject to approval by the Company's
stockholders and other conditions and contingencies) and ending
on the date which is twenty-four (24) months following the Change
of Control.
Notwithstanding the foregoing, the term "Termination Upon Change of
Control" shall not include any termination of the employment of Executive (1) by
the Company for Cause; (2) by the Company as a result of the Permanent
Disability of Executive; (3) as a result of the death of Executive; or (4) as a
result of the voluntary termination of employment by Executive for reasons other
than Good Reason.
6. EXCLUSIVE REMEDY
----------------
6.1 No Other Benefits Payable. Executive shall be entitled to no other
-------------------------
compensation, benefits, or other payments from the Company as a result
of any termination of employment with respect to which the payments
and/or benefits described in Sections 2, 3 and 4 have been provided to
Executive, except as expressly set forth in this Agreement or, subject
to the provisions of Sections 11 and 15, in a duly executed employment
agreement between Company and Executive.
6.2 Release of Claims. The Company may condition payment of the cash
-----------------
severance in Sections 2, 3 and 4 of this Agreement and the stock
option acceleration described in Sections 2, 3 and 4 upon the delivery
by Executive of a signed mutual release of claims in a form reasonably
satisfactory to the Company; provided, however, that Executive shall
not be required to release any rights Executive may have to be
indemnified by the Company.
7. PROPRIETARY AND CONFIDENTIAL INFORMATION
----------------------------------------
Executive agrees to continue to abide by the terms and conditions of the
Company's confidentiality and/or proprietary rights agreement between
Executive and the Company.
10
8. NON-SOLICITATION AND NONCOMPETITION
-----------------------------------
8.1 Agreement Not to Solicit. If Company performs its obligations to
------------------------
deliver the severance benefits set forth in Sections 2, 3 and 4 of
this Agreement, then for a period of one (1) year after Executive's
termination of employment, Executive will not solicit the services or
business of any employee (other than the Executive's administrative
assistant), distributor, vendor, representative or customer of the
Company to discontinue that person's or entity's relationship with or
to the Company.
8.2 Continuation of Benefits; Transition Services; Agreement Not to
---------------------------------------------------------------
Compete. If Company performs its obligations to deliver the severance
-------
benefits set forth in Sections 3 and 4 of this Agreement, then for a
period of one (1) year after Executive's Termination in Absence of
Change of Control, to the maximum extent enforceable by law, Executive
will provide reasonable transition services as requested by the
Company, and shall not directly or indirectly own (other than
ownership of not more than a 1% interest in a public company),
operate, control or be connected with as a director, officer,
employee, partner, consultant or otherwise, AOL, Microsoft internet
group, Yahoo, Lycos, Disney internet properties, Google, Direct Hit,
LookSmart, Engage, Liberate, CMGI or DoubleClick, at any time
Executive is receiving payments hereunder, unless Executive obtains
approval from the Company's Chief Executive Officer, on behalf of the
Company, confirming that the Company does not view Executive's
proposed investment or involvement as a conflict of interest.
9. ARBITRATION
-----------
9.1 Disputes Subject to Arbitration. Any claim, dispute or controversy
-------------------------------
arising out of this Agreement, the interpretation, validity or
enforceability of this Agreement or the alleged breach thereof shall
be submitted by the parties to binding arbitration by the American
Arbitration Association; provided, however, that (1) the arbitrator
shall have no authority to make any ruling or judgment that would
confer any rights with respect to the trade secrets, confidential and
proprietary information or other intellectual property of the Company
upon Executive or any third party; and (2) this arbitration provision
shall not preclude the Company from seeking legal and equitable relief
from any court having jurisdiction with respect to any disputes or
claims relating to or arising out of the misuse or misappropriation of
the Company's intellectual property. Judgment may be entered on the
award of the arbitrator in any court having jurisdiction.
9.2 Site of Arbitration. The site of the arbitration proceeding shall be
-------------------
in Santa Xxxxx County, California.
9.3 Cost and Expenses Borne by Company. All costs and expenses of
----------------------------------
arbitration or litigation, including but not limited to reasonable
attorneys fees and other costs reasonably incurred by Executive, shall
be paid by the Company. Notwithstanding the foregoing, if Executive
initiates the arbitration or litigation,
11
and the finder of fact finds that Executive's claims were totally
without merit or frivolous, then Executive shall be responsible for
Executive's own attorneys' fees.
10. INTERPRETATION
--------------
Executive and the Company agree that this Agreement shall be interpreted in
accordance with and governed by the laws of the State of California as
applied to contracts entered into and entirely to be performed within that
state.
11. CONFLICT IN BENEFITS; NONCUMULATION OF BENEFITS
-----------------------------------------------
11.1 Effect of Agreement. This Agreement shall supersede all prior
-------------------
arrangements, whether written or oral, and understandings regarding
the subject matter of this Agreement and shall be the exclusive
agreement for the determination of any payments and accelerated
option vesting due upon Executive's termination of employment, except
as provided in Sections 11.2, 11.3 and 15.
11.2 No Limitation of Regular Benefit Plans. This Agreement is not
--------------------------------------
intended to and shall not affect, limit or terminate any plans,
programs, or arrangements of the Company that are regularly made
available to a significant number of employees or officers of the
Company, including without limitation the Company's stock option
plans.
11.3 Noncumulation of Cash Benefits. Executive may not cumulate cash
------------------------------
severance payments, stock options and restricted stock vesting and
excise tax reimbursement benefits under both this Agreement and
another agreement. If Executive has any other binding written
agreement with the Company which provides that upon a Change of
Control or termination of employment Executive shall receive one or
more of the benefits described in sections 2, 3 and 4 of this
Agreement, then with respect to each such benefit the amount payable
under this Agreement shall be reduced by the corresponding amount
paid or payable under such other agreements.
12. SUCCESSORS AND ASSIGNS
----------------------
12.1 Successors of the Company. The Company will require any successor or
-------------------------
assign (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company, expressly, absolutely and
unconditionally to assume and agree to perform this Agreement in the
same manner and to the same extent that the Company would be required
to perform it if no such succession or assignment had taken place.
Failure of the Company to obtain such agreement shall be a material
breach of this Agreement.
12.2 Heirs and Representatives of Executive. This Agreement shall inure
--------------------------------------
to the benefit of and be enforceable by Executive's personal and
legal representatives, executors, administrators, successors, heirs,
distributees, devises and legatees.
12
13. NOTICES
-------
For purposes of this Agreement, notices and all other communications
provided for in the Agreement shall be in writing and shall be deemed to
have been duly given when delivered or mailed by United States registered
mail, return receipt requested, postage prepaid, as follows:
If to the Company: @Home Corporation
Attention: General Counsel
000 Xxxxxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
and if to Executive at the address specified on the first page of this
Agreement. Either party may provide the other with notices of change of
address, which shall be effective upon receipt.
14. NO REPRESENTATIONS
------------------
Executive acknowledges that in entering into this Agreement, Executive is
not relying and has not relied on any promise, representation or statement
made by or on behalf of the Company which is not set forth in this
Agreement.
15. MODIFICATION AND AMENDMENT
--------------------------
This Agreement may be modified, amended or superseded only by a
supplemental written agreement signed with the same formality as this
Agreement by Executive and by the Company. However, the noncumulation of
benefits provision of Section 11.3 shall apply to any subsequent agreement,
unless (1) such provision is explicitly disclaimed in the subsequent
agreement, and (2) the subsequent agreement has been authorized by the
Company's Board of Directors or a committee thereof.
16. VALIDITY
--------
16.1 Invalid Provisions. If any one or more of the provisions (or any
------------------
part thereof) of this Agreement shall be held invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions (or any part thereof)
shall not in any way be affected or impaired thereby.
16.2 Execution by Company Executive Officer or Director. This Agreement
--------------------------------------------------
and any modifications or amendments shall require the signature of an
executive officer or member of the Board of Directors of the Company.
13
17. SIGNATURES
----------
The parties have executed this Agreement, intending to be legally bound as
of the Effective Date.
EXECUTIVE @HOME CORPORATION
___________________________ _______________________________
Print Name: ______________ By: __________________________
14
