EXHIBIT 9.01
[LETTERHEAD APPEARS HERE]
April 11, 0000
Xxxxxx Xxxxxxxxxxxx Xxxxxxx
Xxxxx 0000, Xxxxxx Plaza
00 Xxxx Xxxxxx X
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Xxxx Cablesystems Ltd.
Xxxxx 000
000 0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Re: @Home Voting Agreement
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Ladies and Gentlemen:
Reference is made to the Term Sheet (the "Term Sheet"), dated March 18,
1997, among At Home Corporation ("@Home"), Rogers Cablesystems Limited
("Rogers") and Xxxx Cablesystems Ltd. ("Shaw"), in which, among other things,
each of Rogers and Shaw have agreed to purchase shares of @Home's Series C
Convertible Preferred Stock, par value $.01 per share ("Series C Preferred
Stock"), and warrants (the "Warrants") to purchase shares of Series C Preferred
Stock, and to market and promote, on an exclusive basis, @Home's Service in
Canada, and @Home has agreed to sell such shares of Series C Preferred Stock and
Warrants to Rogers and Shaw and to grant each of them an exclusive license to
market and promote @Home's Service in Canada, all as more fully described in the
Term Sheet, and in each case, upon the terms and subject to the conditions set
forth therein or in any subsequent definitive agreements which supersede all or
a portion of the provisions of the Term Sheet. Capitalized terms used but not
defined herein shall have the meanings ascribed to them in the Term Sheet.
The Term Sheet provides that it is a condition to the obligation of Rogers
and Shaw to consummate the transactions contemplated by the Term Sheet that TCI
Internet Holdings, Inc. ("TCI Sub"), an indirect wholly owned subsidiary of
Tele-Communications, Inc., on behalf of the TCI Stockholder Group (as defined in
the Amended and Restated Stockholder Agreement dated as of August 1, 1996 (the
"Stockholders Agreement")), agree to vote any shares of @Home it
may own in favor of and use commercially reasonable best efforts to cause to be
elected and maintained in office one person designated jointly by Rogers and
Shaw as a Common Stock Director (the "Rogers/Shaw Designee") of the Board of
Directors of @Home (the "Board") so long as Rogers and Shaw fulfill certain
requirements as set forth herein. Subsequent to the execution of the Term Sheet,
the parties have modified certain of their arrangements with respect to the
designee of Rogers and Shaw becoming a member of the Board to provide that prior
to the mandatory conversion of their shares of Series C Preferred Stock in
connection with the IPO (as defined in the Certificate of Designation of the
Series C Preferred Stock) the holders of the Series C Preferred Stock, voting as
a separate series, will be entitled to elect a separate member to the Board (the
"Series C Director"), and that following the IPO and such mandatory conversion,
each of TCI Sub, Cox Teleport Providence, Inc. ("Cox Sub"), an indirect wholly
owned subsidiary of Xxx Communications, Inc., and Comcast PC Investments, Inc.
("Comcast Sub", and together with TCI Sub and Cox Sub, the "Cable
Stockholders"), an indirect wholly owned subsidiary of Comcast Corporation,
would, on behalf of itself and its related Stockholder Group, be obligated
subject to the terms and conditions set forth herein, to vote their respective
Voting Securities (as defined below) as provided in this letter agreement.
Currently, (i) TCI Sub is the record and beneficial owner of shares of
@Home's Series T Convertible Participating Preferred Stock, par value $.01 per
share, and Series AT Convertible Participating Preferred Stock, par value $.01
per share, (ii) Cox Sub is the record and beneficial owner of shares of @Home's
Series AX Convertible Participating Preferred Stock, par value $.01 per share
and (ii) Comcast Sub is the record and beneficial owner of shares of @Home's
Series AM Convertible Participating Preferred Stock, par value $.01 per share.
Subject to the conditions set forth in this letter agreement, each of TCI Sub,
Cox Sub and Comcast Sub agrees: (x) to use reasonable best efforts to cause
each of its Stockholder Designees (as defined in the Stockholders Agreement) to
vote in favor of the nomination of the Rogers/Shaw Designee as a Common Stock
Director at any Board meeting at which Common Stock Directors are to be
nominated in connection with the IPO and the mandatory conversion of the Series
C Preferred Stock and at meetings of the Board subsequent to the Trigger Date
(as defined below) at which Common Stock Directors are to be nominated; (y) to
use reasonable best efforts to cause each of its Stockholder Designees to permit
any Non-Voting Observer (as defined in the letter agreement dated of even date
herewith among @Home, Rogers, and Shaw with respect to purchase of the Warrants
and related matters (the "Canadian Purchase Agreement")) to attend all meetings
of the Board, and to participate fully in all aspects of meetings of the Board
and discussions among directors (other than the right to vote as a director), in
each case subject to the terms and conditions of Section 8.3 of the Canadian
Purchase Agreement; and (z) to the extent that such Cable Stockholder has the
power to vote or direct the voting of (or to consent or cause the holder to
consent with respect to) any Voting Securities beneficially owned by it, to (1)
vote all such Voting Securities at any annual or special meeting of stockholders
of @Home occurring subsequent to the date of the mandatory conversion of the
Series C Preferred Stock in connection with the IPO (the "Trigger Date") at
which Common Stock Directors are to be elected in favor of, or duly consent in
writing (in accordance with @Home's Certificate of Incorporation and Bylaws) to,
the election of the Rogers/Shaw Designee as a Common Stock Director, and (2) use
reasonable best efforts to cause the Rogers/Shaw Designee to be elected as a
Common Stock
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Director and to continue as a Common Stock Director, in each case subsequent to
the Trigger Date, unless otherwise requested by Rogers and Shaw and so long as
such Rogers/Shaw Designee fulfills the qualifications set forth below to be a
Common Stock Director. In addition, each of TCI Sub, Cox Sub and Comcast Sub
agrees to (A) use reasonable best efforts to cause each of its Stockholder
Designees to vote in favor of (i) the removal from nomination of such
Rogers/Shaw Designee in the event that Rogers and Shaw together request such
removal by written notice to each of the Cable Stockholders and (ii) the
nomination subsequent to the Trigger Date as a Common Stock Director of any
replacement or successor jointly designated by Rogers and Shaw to fill the
vacancy created by the removal of the Rogers/Shaw Designee or the death,
disability or registration of the Rogers/Shaw Designee, and (B) vote all such
Voting Securities in favor of, or to duly consent in writing (in accordance with
@Home's Certificate of Incorporation and Bylaws) to, in each case to the extent
permitted by @Home's Certificate of Incorporation and Bylaws, (i) the removal
(with or without cause) from the Board of Directors of such Rogers/Shaw Designee
in the event that Rogers and Shaw together request such removal by written
notice to each of the Cable Stockholders, and (ii) the election or appointment
subsequent to the Trigger Date as a Common Stock Director of any replacement or
successor jointly designated by Rogers and Shaw to fill the vacancy created by
the removal of the Rogers/Shaw Designee or the death, disability or resignation
of the Rogers/Shaw Designee. Rogers and Shaw hereby agree that (a) each person
designated by them as the Rogers/Shaw Designee shall meet any legal requirements
to serve on the @Home Board and shall be, at the time of such designation,
nomination and election and so long as such person is the Rogers/Shaw Designee,
an officer, director, or employee of either Rogers or Shaw, (b) any Non-Voting
Observer shall be, at the time of appointment, and so long as such person is the
Non-Voting Observer, an officer, director or employee of either Rogers or Shaw,
and (c) upon such Rogers/Shaw Designee or Non-Voting Observer, as the case may
be, ceasing to be an officer, director or employee of Rogers or Shaw, Rogers and
Shaw will (i) cause the Rogers/ Shaw Designee to resign as a director and, if
necessary or appropriate, request the Cable Stockholders to cooperate in such
person's removal or replacement, as provided above, and (ii) take such actions
(including requesting the Cable Stockholders to cooperate in the taking of any
action) as may be necessary to cause such Non-Voting Observer to cease to attend
Board meetings, as applicable, and thereafter Rogers and Shaw shall designate a
successor to such person, which person shall satisfy the foregoing eligibility
standards in accordance with the foregoing. Rogers and Shaw agree to provide
promptly upon the reasonable request of @Home written notice to @Home and to
each of the Cable Stockholders of the name of the Rogers/Shaw Designee and the
Non-Voting Observer and shall provide such information relating to such
Rogers/Shaw Designee and the Non-Voting Observer as may be necessary to comply
with applicable law in connection with the IPO, subsequent proxy statements to
be mailed to stockholders and other securities filings to be made by @Home. In
the event that both Rogers and Shaw (each, a "Canadian Purchaser") do not then
hold the exclusive licenses referred to in Sections 2.1(A) and (B), as
applicable, of the Term Sheet (or in accordance with any analogous provisions
with respect to distribution of the Wave@Home Service by Rogers and Shaw
contained in any definitive agreement superceding the relevant portions of the
Term Sheet), then the Canadian Purchaser that then holds one of such exclusive
licenses, if any, shall have the right, acting alone, to designate the
Rogers/Shaw Designee.
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The agreements set forth in this letter agreement and the Cable
Stockholders' obligations hereunder shall terminate on the earlier to occur of
the date that (i) neither Rogers nor Shaw continues to offer the Wave@Home
Service on an exclusive basis in accordance with the exclusive license referred
to in Section 2.1(A) or (B), as applicable, of the Term Sheet (or in accordance
with any analogous provisions with respect to distribution of the Wave@Home
Service by Rogers and Shaw contained in any Definitive Agreement) or (ii) Rogers
and Shaw together with their respective Controlled Affiliates (as such term is
defined in the Stock Purchase Agreement, of even date herewith, among @Home,
Rogers, Shaw and the other purchasers of Series C Preferred Stock) cease
collectively to own beneficially (x) at least 2,000,000 shares of issued and
outstanding Series A Common Stock (and/or shares of Series C Preferred Stock
convertible into such number of shares of Series A Common Stock) and (y) in
addition to (and without duplication of) the shares referred to in clause (x)
above, any one of the following:
(1) 500,000 or more shares of Series A Common Stock; or
(2) that number of shares of Series C Preferred Stock which upon
conversion will result in the issuance of at least 500,000 shares of
Series A Common Stock; or
(3) that number of Warrants which upon exercise will (either immediately
or upon conversion of shares of Series C Preferred Stock issuable upon
the exercise thereof) result in the issuance of at least 500,000
shares of Series A Common Stock.
The foregoing references to numbers of shares shall be appropriately
adjusted to give effect to any stock splits, reverse splits, stock dividends or
similar events occurring after the date hereof.
Each of Rogers and Shaw agrees to notify each of the Cable Stockholders
promptly upon (or to the extent practicable, in advance of) the occurrence of
any event which would result in the termination of Rogers' or Xxxx'x right to
designate the Rogers/Shaw Designee or the Non-voting Observer. Upon the
termination of this letter agreement and the Cable Stockholders' obligations
hereunder, each of Rogers and Shaw agrees to cooperate with @Home and the Cable
Stockholders in causing the Rogers/Shaw Designee to be removed from the Board
and the Non-Voting Observer to cease attending Board meetings.
As used herein the following terms shall have the following meanings: (i)
"Certificate of Incorporation" means @Home's Certificate of Incorporation, as
amended from time to time; (ii) "Bylaws" means @Home's Bylaws, as amended from
time to time; (iii) "Common Stock Director" means any member of the Board of
Directors of @Home who is not elected or appointed solely by the holders of a
specified class or series of Preferred Stock or by the holders of @Home's Series
B Common Stock or Series K Common Stock; (iv) "Voting Securities" means all
shares of Preferred Stock and Common Stock (each as defined in @Home's
Certificate of Incorporation) the holders of which are entitled to vote or
consent with respect to the election
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of Common Stock Directors; (v) "Series A Common Stock" means the Series A Common
Stock, par value $.01 per share, of @Home; and (vi) "owned beneficially" shall
have a meaning correlative to that of "beneficial owner" as set forth in Rule
13d-3 under the Securities Exchange Act of 1934, as amended. In addition, except
as expressly provided herein, any provision in this Agreement requiring a Cable
Stockholder to use its reasonable best efforts to cause its Stockholder
Designees to take any action shall require such Cable Stockholder to (i)
instruct each of its Stockholder Designees to vote in favor of such action, or
to consent in writing to the taking of such action, and (ii) take such other
actions (including without limitation the removal and replacement of its
Stockholder Designees) as may be reasonably necessary to cause such action to be
taken.
Each of TCI Sub, Cox Sub and Comcast Sub represents and warrants to each of
Rogers and Shaw that, as of the date hereof, it is the record and beneficial
owner of all Voting Securities held by its respective Stockholder Group (as
defined in the Stockholders Agreement). Each party hereto, severally,
represents to each of the other parties hereto that this letter agreement has
been duly authorized, executed and delivered by such party and constitutes the
legal, valid and binding obligation of such party, enforceable against such
party in accordance with its terms, except as such enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
the rights of creditors generally and by general principals of equity.
The provisions of this agreement shall be binding upon and enforceable
against each member of the TCI Stockholder Group, the Cox Stockholder Group and
the Comcast Stockholder Group, in each case, holding Voting Securities of @Home,
and each of TCI Sub, Cox Sub and Comcast Sub agrees that it will not sell,
assign or transfer any Voting Securities to any member of its Stockholder Group
unless such member of its Stockholder Group assumes and agrees to perform the
obligations of such Cable Stockholder under this Agreement.
This letter agreement will be governed by, and construed in accordance
with, the laws of the State of Delaware, without regard to the conflicts of law
rules of such state.
The parties hereto agree that irreparable damage would occur in the event
any provision of this letter agreement was not performed in accordance with the
terms hereof and that the parties shall be entitled to specific performance of
the terms hereof in addition to any other remedy at law or in equity.
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This letter agreement may be executed in counterparts, each of which shall
be deemed an original and all of which shall constitute one and the same
instrument.
If the foregoing is in accordance with your understanding please indicate
your agreement by signing below, at which time this letter will constitute a
binding agreement among us.
Very truly yours,
TCI INTERNET HOLDINGS, INC.
By:/s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: President/CEO
COX TELEPORT PROVIDENCE, INC.
By:/s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: VP
COMCAST PC INVESTMENTS, INC.
By:/s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: President
Accepted and Agreed as of
this 11 day of April, 1997:
ROGERS CABLESYSTEMS LIMITED
By:/s/ X. Xxxxxx and X. Xxxxxx
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Name: X. Xxxxxx X. Xxxxxx
Title: VP Pres. Rogers Wave
XXXX CABLESYSTEMS LTD.
By:/s/ Xxx Xxxx, Jr.
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Name: Xxx Xxxx, Jr.
Title: President
XXXX CABLESYSTEMS LTD.
By:/s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Secretary
The modification to the Term Sheet
provided herein is hereby accepted and
agreed:
AT HOME CORPORATION
By:/s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: President/CEO
