Exhibit 13
AT&T Corp.
000 Xxxxx Xxxxx Xxx.
Xxxxxxx Xxxxx, XX 00000
April 7, 1999
Xxx Communications, Inc.
Cox @Home, Inc.
0000 Xxxx Xxxxx Xxxxx, XX
Xxxxxxx, XX 00000
At Home Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxxx Xxxx, XX 00000
Re: At Home Corporation Master Distribution Agreement Term
Sheet dated May 15, 1997 (the "MDA")
Gentlemen:
1. Capitalized terms used but not defined herein shall have the meanings set
forth in the MDA.
2. In consideration of the agreement of AT&T Corp. ("AT&T") and Tele-
Communications, Inc. ("TCI" and together with AT&T, the "AT&T Parties") in
paragraph 3 below, and subject to approval of a Fifth Amended and Restated
Certificate of Incorporation (the "Fifth Certificate") of At Home
Corporation ("@Home") in the form attached hereto as Exhibit A, each of Xxx
Communications, Inc. ("Xxx") and Xxx @Home, Inc. ("Cox @Home," and
collectively with Cox, the "Cox Parties") agrees that it will not, and it
will not permit any other member of the Cox Stockholder Group or any of
their respective Affiliates to, exercise directly or indirectly any right
to terminate any of the Cable Parent Exclusivity Provisions pursuant to
Section 8 of the MDA as a result of any Performance Default on the First
Determination Date or any right to deliver any notice with respect thereto
or take or propose to take any action in furtherance of, or with the effect
of, the foregoing. For the avoidance of doubt, nothing herein shall be
deemed to preclude any Cox Party from exercising any right it may have to
terminate the Cable Parent Exclusivity Provisions in the event that there
is a Performance Default on any Subsequent Determination Date.
3. Subject to paragraph 4, in the event that on May 31, 2000, the aggregate
number of Residential Subscribers of the AT&T Parties and their respective
Affiliates (the "AT&T Subs") is fewer than 277,000, AT&T will deliver to
Cox a number of shares of Series A Common Stock, $.01 par value, of @Home
("Series A Common Stock") equal to the product
of (a) 10 and (b) the excess, if any, of 277,000 over the aggregate number
of AT&T Subs determined as of such date. Such requirement to deliver shares
of Series A Common Stock shall be appropriately adjusted for any stock
splits or combinations, stock dividends, recapitalizations or business
combinations occurring after the date hereof. On or prior to June 30, 2000,
AT&T shall deliver to each of @Home and Cox a certificate setting forth the
aggregate number of AT&T Subs as of May 31, 2000, accompanied by a
description in reasonable detail of the basis for such calculation. Within
10 business days after delivery of such certificate, @Home shall confirm
such number of AT&T Subs as of May 31, 2000. In the event that any shares
are required to be delivered to Cox pursuant to this paragraph, AT&T shall
deliver such shares within 15 business days following @Home's confirmation
of the aggregate number of AT&T Subs as of May 31, 2000. In the event of
any disagreement with respect to such number of AT&T Subs, AT&T shall
deliver to Cox such number of shares, if any, as to which there is no
dispute, and within 15 business days @Home, in consultation with AT&T and
Cox, shall resolve the disagreement as to the number of AT&T Subs as of May
31, 2000. In the absence of manifest error, @Home's resolution shall be
final and binding on the parties and, within 10 business days thereafter,
AT&T shall deliver to Cox any additional shares that may be deliverable
hereunder based on the final determination of the number of AT&T Subs as of
May 31, 2000. All shares delivered hereunder shall be delivered free and
clear of any liens and encumbrances, except as may arise by virtue of the
Cox Parties being parties to the Stockholders Agreement, as amended, or
under federal or state securities laws.
4. Notwithstanding paragraph 3, AT&T shall not be required to deliver any
shares of Series A Common Stock to Cox to the extent that the failure of
the aggregate number of AT&T Subs to equal at least 277,000 on May 31, 2000
results from (a) any problems or failures in, or damages to, the network or
other infrastructure of @Home and its Affiliates (other than AT&T and its
non-@Home Affiliates), (b) interruptions in service or any other problems
or failures relating to the delivery of the @Home Services to the Point of
Demarcation or attributable to software provided by @Home, or (c) @Home's
failure to meet its current performance metrics.
5. In the event the Fifth Certificate shall not have been approved by the
board and stockholders of @Home and become effective on or before July 21,
1999, either AT&T or Cox may terminate this Agreement (unless the Fifth
Certificate shall have become effective prior to such termination), in
which case this Agreement will be of no further force and effect and the
MDA will remain in effect as it existed prior to the date of this
Agreement, as if this Agreement had never been executed. For the avoidance
of doubt, in the event of such termination, the Cox Parties will be
entitled to exercise such rights as they may have pursuant to Section 8 of
the MDA, within the time periods set forth therein, as a result of any
Performance Default on the First Determination Date. In addition, in the
event of such termination, the Fifth Certificate will be abandoned and will
not be filed with the Delaware Secretary of State or become effective.
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6. Each party hereto hereby makes the following representations, warranties
and covenants to each of the other parties hereto:
(a) Such party has the legal right and requisite power and authority
to make and enter into this Agreement and to perform its
obligations hereunder and to comply with the provisions hereof.
The execution, delivery and performance of this Agreement by such
party has been duly authorized by all necessary action on its
part. This Agreement has been duly executed and delivered by such
party and constitutes the valid and binding obligation of such
party enforceable against it in accordance with its terms.
(b) The execution, delivery and performance of this Agreement by such
party, and the compliance by such party with the provisions
hereof, do not and will not (with or without notice or lapse of
time, or both) conflict with, or result in any violation of, or
default under, or give rise to any right of termination,
cancellation or acceleration of any obligation or the lessening
of a material benefit under, any loan or credit agreement, note,
bond, mortgage, indenture, lease or other agreement, instrument,
permit, concession, franchise, license, judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to such
party or any of its properties or assets (excluding in the case
of the AT&T Parties and the Cox Parties, the properties or assets
of @Home and its Subsidiaries), other than any such conflicts,
violations, defaults, or other effects which, individually or in
the aggregate, do not and will not prevent, restrict or impede
such party's performance of its obligations under and compliance
with the provisions of this Agreement. If such party is an entity
or association, the execution, delivery and performance of this
Agreement by such party does not and will not contravene the
charter, bylaws or other organizational documents of such party.
(c) No consent, approval, order or authorization of, or registration,
declaration or filing with, any governmental or regulatory
authority or any other Person (other than any of the foregoing
which have been obtained and, at the date in question, are then in
effect) is required under existing laws as a condition to the
execution, delivery or performance of this Agreement by such
party.
(d) Each member of such party's Stockholder Group and each Ultimate
Parent and any Controlled Affiliate thereof, in each case which
owns securities of the Company, is a signatory hereto.
7. Each party hereto agrees not to issue any press releases or otherwise make
any public statements with respect to the matters contemplated hereby
without the prior consent of the other party, provided however that any
party may make any such disclosure if required by law, provided further
however that if any such disclosure makes direct or indirect reference to
any other party hereto or any of its Affiliates, the disclosing party
shall, if practicable, consult with such other party prior to making such
disclosure.
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8. Except as otherwise expressly provided herein, neither this Agreement nor
any of the rights, interests or obligations hereunder shall be assigned by
any of the parties hereto other than by operation of law in connection with
a merger or similar business combination involving such party and except
that each of the Cox Parties and the AT&T Parties may assign their rights
hereunder to their respective Affiliates; provided that no such assignment
shall relieve any party of its obligations hereunder. Subject to the
foregoing, this Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors and permitted assigns.
9. Nothing in this Agreement, whether express or implied, shall be construed
to give any Person, other than the parties hereto, any legal or equitable
right, remedy or claim under or in respect of this Agreement.
10. This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York, without regard to the conflicts of law rules
of such State.
11. This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original and all of which together shall constitute one
and the same instrument.
12. If one or more provisions of this Agreement are held to be unenforceable
under applicable law, portions of such provisions, or such provisions in
their entirety, to the extent necessary, shall be severed from this
Agreement, and the balance of this Agreement shall be enforceable in
accordance with its terms.
13. Any waiver, permit, consent or approval of any kind or character on the
part of any party of any breach or default under this Agreement, or any
waiver on the part of any party of any provisions or conditions of this
Agreement, must be made in writing and shall be effective only to the
extent specifically set forth in such writing. All remedies, either under
this Agreement or otherwise afforded to any party, shall be cumulative and
not alternative.
14. Except as otherwise provided in this Agreement, this Agreement contains the
entire understanding of the parties with respect to the subject matter
hereof and supersedes all prior agreements and understandings among the
parties with respect to the subject matter hereof.
15. Without intending to limit the remedies available to any of the parties
hereto, each of the parties hereto acknowledges and agrees that a breach by
such party of any provision of this Agreement will cause the other parties
hereto irreparable injury for which an adequate remedy at law is not
available. Therefore, the parties hereto agree that in the event of any
such breach each such party shall be entitled to an injunction, restraining
order or other form of equitable relief from any court of competent
jurisdiction restraining any other party hereto from committing any breach
or threatened breach of, or otherwise specifically to enforce, any such
provision of this Agreement, in addition to any other remedies that such
parties may have at law or in equity.
16. Any amendment to this Agreement must be in writing and must be signed by
each of the parties hereto; provided however any amendment to paragraph 3
or paragraph 4 hereof will
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be effective if a written amendment thereto is executed and delivered by
each of Cox and AT&T.
17. If the foregoing correctly sets forth your understanding, please so
indicate by signing below. Upon execution and delivery by all of the
undersigned, this Agreement shall become a legal and binding agreement
among the parties hereto.
AT&T Corp.
By: /s/
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Tele-Communications, Inc.
By: /s/
--------------------------
Agreed and Accepted as of the date hereof:
Xxx Communications, Inc.
By: /s/
----------------------
Cox @Home, Inc.
By: /s/
----------------------
At Home Corporation
By: /s/
----------------------
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