EXHIBIT 4.01
THIRD AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
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THIS THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (the
"AGREEMENT") is dated as of April 11, 1997, and is entered into by and among AT
HOME CORPORATION, a Delaware corporation ("@HOME"), TCI INTERNET HOLDINGS, INC.,
a Colorado corporation ("TCI SUB"), KLEINER, PERKINS, XXXXXXXX & XXXXX VII, KPCB
INFORMATION SCIENCES ZAIBATSU FUND II, each a California limited partnership of
which KPCB VII Associates, a California limited partnership ("KPCB"), is the
general partner and XXXXX XXXXX (collectively, the "KPCB AFFILIATES"), COMCAST
PC INVESTMENTS, INC. ("COMCAST SUB"), a Delaware corporation and an indirect
wholly owned subsidiary of Comcast Corporation, COX TELEPORT PROVIDENCE, INC.
("COX SUB"), a Delaware corporation and a wholly owned subsidiary of Xxx
Communications, Inc., XXXXXX/CAMPUS ASSOCIATES, L.P., a Delaware limited
partnership ("DEVELOPER") and the purchasers of @Home's Series C Preferred Stock
and warrants to purchase @Home's Series C Preferred Stock listed on the
signature pages hereof. Capitalized terms not otherwise defined herein will
have the meaning given them in Section 1 of this Agreement.
BACKGROUND
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A. @Home, TCI Sub, and certain of the KPCB Affiliates are parties to the
1995 Purchase Agreement, which relates to the purchase (i) by certain of the
KPCB Affiliates of 2,300,000 shares of Series K Preferred and (ii) by TCI Sub of
7,700,000 shares of Series T Preferred.
B. @Home, TCI Sub and certain of the KPCB Affiliates are parties to the
May 1996 Purchase Agreement, which relates to the purchase (i) by certain of the
KPCB Affiliates of an additional 2,300,000 shares of Series K Preferred and (ii)
by TCI Sub of an additional 7,700,000 shares of Series T Preferred.
C. @Home, TCI Sub, the KPCB Affiliates, Comcast Sub and Cox Sub are also
parties to the August 1996 Purchase Agreement and certain other agreements dated
the same date as the August 1996 Purchase Agreement, providing for the purchase
of certain shares of Series K Preferred, Series T Preferred, and Series A
Preferred, as described in the August 1996 Purchase Agreement, and in connection
with that transaction, the shares of Series K Preferred and Series T Preferred
referred to in recitals A and B above were reverse split on a 1-for-10 basis.
D. The then-outstanding shares of Series A Common Stock were forward split
on a 2-for-1 basis on August 14, 1996.
E. @Home granted the Developer Warrant to Developer on October 17, 1996.
F. @Home and each Series C Preferred Investor (as defined below) are
parties to the Series C Purchase Agreement, providing for the purchase of
certain shares of Series C Preferred.
G. @Home intends to issue the Canadian MSO Warrants (as defined below) to
the Canadian MSO's (as defined below), subject to their purchase of Series C
Preferred.
H. All of such shares of Preferred Stock and the shares of Series B Common
Stock, Series K Common Stock and Series A Common Stock issuable upon conversion
thereof or upon exercise of the Developer Warrant and the Canadian MSO Warrants
constitute "restricted securities" (as defined in Rule 144 under the Securities
Act), and @Home has agreed to provide the Stockholders and the members of each
Stockholder's Stockholder Group with the registration rights set forth herein.
In consideration of the premises and of the mutual agreements and covenants
hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Certain Definitions.
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1995 PURCHASE AGREEMENT: The Stock Purchase Agreement, dated as of
August 29, 1995, entered into by and among @Home, TCI Sub and certain of the
KPCB Affiliates, providing for the purchase of shares of Series T Preferred and
Series K Preferred as described in recital A above.
@HOME: At Home Corporation, a Delaware corporation.
AGREEMENT: This Third Amended and Restated Registration Rights
Agreement.
APPLICABLE TIME PERIOD: As defined in Section 4(c)(iv).
AUGUST 1996 PURCHASE AGREEMENT: The Stock Purchase and Exchange
Agreement dated as of August 1, 1996 by and among @Home, the KPCB Affiliates,
TCI Sub, Comcast Sub, and Cox Sub, as described in recital C above, and as such
agreement may be amended from time to time.
BUSINESS DAY: Any day other than a Saturday, Sunday or other day on
which commercial banking institutions in New York, New York are required or
authorized by law to be closed.
CABLE PARENT: (i) With respect to TCI Sub, TCI Internet Services,
Inc., TCI Communications, Inc. and TCI Cable Investments Inc., (such entities
collectively being a single Cable Parent), (ii) with respect to Comcast Sub,
Comcast On-Line Communications, Inc. and Comcast Cable Communications, Inc.,
(such entities collectively being a single Cable Parent) and (iii) with respect
to Cox Sub, Xxx Communications, Inc.
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CABLE PARTNER: Each of TCI Sub, Comcast Sub and Cox Sub. Such
entities are referred to collectively as the "CABLE PARTNERS."
CABLE PUT: As defined in the Stockholders' Agreement.
CANADIAN MSO'S: Each of Rogers Cablesystems Limited, a Canadian
corporation ("ROGERS") and Xxxx Cablesystems Ltd., a Canadian corporation
("SHAW") or any other entity affiliated with Rogers and/or Shaw purchasing the
Canadian MSO Warrants directly from the Company in lieu of purchase by Rogers
and/or Shaw.
CANADIAN MSO WARRANTS: Those certain warrants to purchase up to an
aggregate of 2,000,000 shares of Series A Common Stock issuable upon conversion
of Series C Preferred (or, upon certain conditions, Series A Common Stock
directly) (subject to adjustment for stock splits, stock dividends, reverse
stock splits, recapitalizations and the like after the date hereof), dated the
date hereof, issued to the Canadian MSO's, and any warrant issued upon a partial
exercise or permitted assignment thereof.
COMCAST SUB: As defined in the Preamble.
COMMISSION: The Securities and Exchange Commission, or any other
federal agency at the time administering the Securities Act or the Exchange Act.
COMPANY INDEMNIFIED PARTIES: @Home, its officers, directors,
employees and agents, and each Person, if any, who controls @Home within the
meaning of either the Securities Act or the Exchange Act.
COMPANY NOTICE: As defined in Section 2(b)(i).
CONTROL: The direct or indirect power to direct the management and
policies of any Person, whether through the ownership of voting securities, by
contract, management agreement or otherwise.
CONTROLLED AFFILIATE: As to any Person, any other Person (i) which
now or in the future is Controlled by such Person, (ii) which now or in the
future (directly or indirectly through one or more wholly-owned subsidiaries)
owns 100% of the outstanding capital stock of such Person (a "PARENT"), or (iii)
of which now or in the future more than 50% of the equity interests and voting
power of its outstanding capital stock is owned by a Parent of such Person;
provided, however, that @Home will not be deemed to be a Controlled Affiliate of
any Parent or such Parent's Controlled Affiliates.
CONVERSION SHARES: As defined below in the definition of "Registrable
Shares."
COX SUB: As defined in the Preamble.
DEMAND NOTICE: As defined in Section 2(b)(i).
DEMAND REGISTRATION: As defined in Section 2(a).
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DEMAND REGISTRATION RIGHT: As defined in Section 2(a).
DESIGNATED REPRESENTATIVE: As defined in Section 9.2.
DEVELOPER: As defined in the Preamble.
DEVELOPER'S STOCKHOLDER GROUP: (i) Developer; (ii) Xxxxxx/Redwood
Partners, L.P., a California limited partnership ("REDWOOD"); (iii) J. Xxxxx
Xxxxxx; (iv) Xxxxxxx X. Xxxxxxxxxxx; (v) Xxxxx Xxxxxxxxx; (vi) Xxxxxxxxxx X.
Xxxxxxx; (vii) Xxxxxx X. Xxxxxx; (viii) Xxxx X. Xxxxx; (ix) Xxxxxx X. Xxxx; (x)
Xxxxx Xxxxxx; (xi) Farallon/Campus Warrants, LLC, a Delaware limited liability
company (or if such entity is dissolved, the members of such entity); and (xii)
any revocable living trust established by any of the persons in the preceding
clauses (iii) to (x) inclusive for the benefit of any such person's immediate
family.
DEVELOPER WARRANT: That certain warrant to purchase up to 200,000
shares of Series A Common Stock (subject to adjustment for stock splits, stock
dividends, reverse stock splits, recapitalizations and the like after October
17, 1996), dated October 17, 1996, issued to Developer, and any warrant issued
upon a partial exercise or permitted assignment thereof.
DISADVANTAGEOUS CONDITION: The determination by @Home, in its
reasonable business judgment as set forth in a resolution of its Board of
Directors, that a registration, or offering or sale of shares pursuant to a
registration, would materially interfere with or otherwise adversely affect in
any material respect any financing, acquisition, corporate reorganization, or
other material transaction or development involving @Home, or would require the
disclosure of a previously undisclosed material development involving @Home
which disclosure would have a material adverse effect on @Home.
ELIGIBLE STOCKHOLDER: As defined in the Stockholders' Agreement.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended, or any
successor federal statute, and the rules and regulations of the Commission
promulgated thereunder, as they each may, from time to time, be in effect.
INCIDENTAL REGISTRATION: As defined in Section 3(a).
INDEMNIFIED PARTY: A party claiming a right to indemnification
pursuant to Section 6 of this Agreement.
INDEMNIFYING PARTY: A party required to provide indemnification
pursuant to Section 6 of this Agreement.
INITIATING HOLDERS: The Original Initiating Holder, together with any
other Stockholders joining in the Demand Registration initiated by the Original
Initiating Holder, as described in Section 2(b) of this Agreement.
IPO: @Home's initial public offering of Series A Common Stock
registered under the Securities Act.
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IPO ELECTION: As defined in the Stockholders' Agreement.
KPCB: As defined in the Preamble.
KPCB AFFILIATES: As defined in the Preamble.
KPCB PUT: As defined in the Stockholders' Agreement.
LOSSES: Any losses, claims, damages or liabilities, and any related
legal or other fees and expenses.
MAY 1996 PURCHASE AGREEMENT: The letter purchase agreement, dated May
9, 1996, executed by @Home, TCI Sub and certain of the KPCB Affiliates providing
for the purchase of additional shares of Series T Preferred and Series K
Preferred as described in recital B above.
MINIMUM DEMAND SHARES: As defined in Section 5(a).
ORIGINAL INITIATING HOLDER: As defined in Section 2(b).
OTHER STOCKHOLDER GROUP: As defined in Section 2(b)(i).
PARENT: As defined in the Stockholders' Agreement.
PERSON: Any individual, corporation, partnership, limited
partnership, limited liability partnership, limited liability company, trust,
association, organization or other entity.
PREFERRED STOCK: The shares of Series A Preferred, Series C
Preferred, Series K Preferred and Series T Preferred.
PRIOR REGISTRATION AGREEMENT: The Second Amended and Restated
Registration Rights Agreement dated as of October 17, 1996, by and among @Home,
TCI Sub, the KPCB Affiliates, Comcast Sub, Cox Sub and Developer.
PROSPECTUS: The prospectus included in a Registration Statement as of
the date it becomes effective under the Securities Act and, in the case of
references to the Prospectus as of a date subsequent to the effective date of
the Registration Statement, as amended or supplemented as of such date,
including all documents incorporated by reference therein, each as amended, and
each applicable prospectus supplement relating to the offering and sale of any
of the Registrable Shares pursuant to such Registration Statement.
REGISTRABLE SHARES: (i) Shares of Series A Common Stock ("CONVERSION
SHARES") (u) issued or issuable upon conversion of shares of Series B Common
Stock issuable upon conversion of shares of Series T Preferred, (v) issued or
issuable upon conversion of shares of Series K Common Stock issuable upon
conversion of shares of Series K Preferred, (w) issued or issuable upon
conversion of shares of Series A Preferred, (x) except for purposes of Sections
7 and 8, issued or issuable upon conversion of shares of Series C Preferred
(including but not
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limited to shares of Series C Preferred issued or issuable upon exercise of the
Canadian MSO Warrants), (y) except for purposes of Sections 7 and 8, issued or
issuable upon exercise of any of the Canadian MSO Warrants or (z) except for
purposes of Sections 2 and 8, issued or issuable upon exercise of the Developer
Warrant; (ii) any other shares of Series A Common Stock (including those shares
issued or issuable upon exercise or conversion of any securities exercisable for
or convertible into shares of Series A Common Stock) howsoever acquired by a
Stockholder's Stockholder Group (other than Developer's Stockholder Group or the
Series C Preferred Holders' Stockholder Group); and (iii) any other shares of
capital stock of @Home issued in respect of (or that become issuable upon
conversion of such shares of Series B Common Stock, Series K Common Stock (or
other such securities in lieu of)) such shares of Series A Common Stock issued
or issuable pursuant to the preceding clauses (i) and/or (ii) as a result of
stock splits, reverse stock splits, stock dividends or other distributions,
reclassifications, recapitalizations, mergers, consolidations, reorganizations
or similar events. References in this Agreement to amounts or percentages of
Registrable Shares as of or on any particular date shall be deemed to refer to
amounts or percentages after giving effect to any applicable events contemplated
by the preceding sentence. Any Registrable Share will cease to be a Registrable
Share when (i) a registration statement covering such Registrable Share has been
declared effective by the Commission and such Registrable Share has been
disposed of pursuant to such effective registration statement or (ii) such
Registrable Share is sold in a transaction in which such Stockholder's rights
hereunder with respect to such Registrable Share are not assigned to the
transferee thereof in accordance with the terms and provisions hereof.
REGISTRABLE SHARES THEN OUTSTANDING: The sum of (i) the number of
shares of Series A Common Stock (or other securities of @Home) outstanding that
are Registrable Shares and (ii) the number of shares of Series A Common Stock
(or other securities of @Home) that would be Registrable Shares upon the
exercise or conversion of other outstanding securities of @Home for or into
shares of such Series A Common Stock (or other securities of @Home).
REGISTRATION EXPENSES: As defined in Section 5(a).
REGISTRATION STATEMENT: A registration statement of @Home under the
Securities Act on any form for which @Home then qualifies and which permits the
sale thereunder of the number and type of Registrable Shares (and any other
securities of @Home) to be included therein in accordance with this Agreement by
the applicable sellers in the manner described therein. The term "Registration
Statement" shall also include all exhibits and financial statements and
schedules and documents incorporated by reference in such Registration Statement
when it becomes effective under the Securities Act, and in the case of the
references to the Registration Statement as of a date subsequent to the
effective date, as amended or supplemented as of such date.
SECURITIES ACT: The Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations of the Commission
promulgated thereunder, as they each may, from time to time, be in effect.
SELLING STOCKHOLDER: Any Stockholder whose Registrable Shares are
included at the request of such Stockholder in any Registration Statement
pursuant to Section 2 or Section 3.
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SERIES A COMMON STOCK: The Series A Common Stock, par value $.01 per
share, of @Home.
SERIES A PREFERRED: Collectively, the Series AM Convertible
Participating Preferred Stock, the Series AT Convertible Participating Preferred
Stock and the Series AX Convertible Participating Preferred Stock, each par
value $.01 per share, of @Home.
SERIES B COMMON STOCK: The Series B Common Stock, par value $.01 per
share, of @Home.
SERIES C PREFERRED: The Series C Convertible Participating Preferred
Stock, par value $.01 per share, of @Home.
SERIES C PREFERRED HOLDERS: The Series C Preferred Investors and each
transferee thereof who becomes a party to this Agreement in accordance with the
terms hereof.
SERIES C PREFERRED INVESTORS: The purchasers of an aggregate of up to
$50,000,000 of Series C Preferred who become parties to a Series C Purchase
Agreement and who execute a counterpart signature page to this Agreement as a
"Series C Preferred Investor." A "Series C Preferred Investor" also includes
the Canadian MSO's as purchasers of Series C Preferred under such a Series C
Purchase Agreement and as purchasers of the Canadian MSO Warrants, who execute a
counterpart signature page to this Agreement as a "Series C Preferred Investor."
SERIES C PURCHASE AGREEMENT: The Stock Purchase Agreements, dated as
of even date herewith, entered into by and among @Home and any of the Series C
Preferred Investors, and any other substantially identical Stock Purchase
Agreement between @Home and any of the Series C Preferred Investors, for the
purchase collectively of an aggregate of up to $50,000,000 of Series C
Preferred, as such agreements may be amended from time to time.
SERIES K COMMON STOCK: The Series K Common Stock, par value $.01 per
share, of @Home.
SERIES K PREFERRED: The Series K Convertible Participating Preferred
Stock, par value $.01 per share, of @Home.
SERIES T PREFERRED: The Series T Convertible Participating Preferred
Stock, par value $.01 per share, of @Home.
SPECIAL DEMAND REGISTRATION RIGHT: As defined in Section 2(g).
STOCKHOLDER: Each of (i) TCI Sub, Cox Sub and Comcast Sub,
individually, and the KPCB Affiliates, collectively, (ii) except for purposes of
Sections 2 and 8, Developer and (iii) except for purposes of Sections 7 and 8,
the Series C Preferred Holders. In addition, the term "Stockholder" shall also
include any other person or entity to which Registrable Shares are transferred
(i) by any Stockholder (other than the Series C Preferred Holders and Developer
and their respective permitted transferees) in accordance with the applicable
provisions of the
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Stockholders' Agreement (x) to which the applicable Stockholder has assigned its
rights hereunder in accordance with the provisions hereof with respect to such
Registrable Shares and (y) which has executed a counterpart hereof in connection
with the transfer of such Registrable Shares and (ii) by the Series C Preferred
Holders and Developer and their respective permitted transferees (x) to which
the applicable Stockholder has assigned its rights hereunder in accordance with
the provisions hereof with respect to such Registrable Shares and (y) which has
executed a counterpart hereof in connection with the transfer of such
Registrable Shares.
STOCKHOLDER GROUP: With respect to Comcast Sub, Cox Sub, the KPCB
Affiliates and TCI Sub, as defined in the Stockholders' Agreement; and, except
for purposes of Sections 2 and 8, with respect to Developer, Developer's
Stockholder Group; and, except for purposes of Sections 7 and 8, with respect to
the Series C Preferred Holders, all of the Series C Preferred Holders as a
single group.
STOCKHOLDER INDEMNIFIED PARTIES: Each Selling Stockholder, its
officers, directors, employees and agents, each Person (if any) who controls
such Selling Stockholder within the meaning of either the Securities Act or the
Exchange Act, and the officers, directors, employees and agents of the foregoing
parties.
STOCKHOLDERS' AGREEMENT: The Amended and Restated Stockholders'
Agreement, dated as of August 1, 1996, by and among @Home, the KPCB Affiliates,
TCI Sub, Cox Sub, Comcast Sub, and certain members of their respective
Stockholder Groups, as such agreement may be amended from time to time.
TCI SUB: As defined in the Preamble.
2. Demand Registration.
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(a) Demand Registration Rights. Subject to Section 2(g) below, at any
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time on or after the first anniversary of the closing date of the IPO, each
Stockholder Group shall have the right (a "DEMAND REGISTRATION RIGHT") to
request that @Home register under the Securities Act all or a portion of the
Registrable Shares held by the Stockholder Group upon the terms and subject to
the conditions and limitations set forth herein (a "DEMAND REGISTRATION"). The
number of Demand Registrations to which each Stockholder Group shall be entitled
shall be as follows: TCI Sub's Stockholder Group shall be entitled to four
Demand Registrations, Comcast Sub's Stockholder Group shall be entitled to two
Demand Registrations, Cox Sub's Stockholder Group shall be entitled to two
Demand Registrations, the KPCB Affiliates' Stockholder Group shall be entitled
to two Demand Registrations, and the Series C Preferred Holders' Stockholder
Group shall be entitled to two Demand Registrations.
(b) Procedures for Demand Registrations.
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(i) A Stockholder Group holding Registrable Shares (the
"ORIGINAL INITIATING HOLDER") may elect to exercise a Demand Registration Right
pursuant to this Section 2 by furnishing @Home with written notice of such
request (a "DEMAND NOTICE") which sets forth the number of Registrable Shares
requested to be so registered and such Stockholder Group's preferred method of
distribution of such Registrable Shares; provided, that a Demand
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Registration may be made by the Series C Preferred Holders' Stockholder Group
only upon written request of the Series C Preferred Holders holding at least
twenty-five percent (25%) of the Registrable Shares issued or issuable upon
conversion of the Series C Preferred (including but not limited to shares of
Series C Preferred issued or issuable upon exercise of the Canadian MSO
Warrants) and requesting registration of Registrable Shares with an anticipated
aggregate public offering price (before any underwriting or brokerage discounts
and commissions) of not less than $10,000,000. Upon receipt by @Home of a Demand
Notice, @Home shall promptly notify the Designated Representative of each other
Stockholder Group (the "OTHER STOCKHOLDER GROUPS") in writing of such request
for registration and the Original Initiating Holder's preferred method of
distribution. Upon receipt of such notice from @Home (the "COMPANY NOTICE"), the
Designated Representative of each such Other Stockholder Group may give @Home a
written request to register in the registration described in the Company Notice
any or all of the Registrable Shares of the Stockholders in such Other
Stockholder Group; provided, that (i) such written request is given within ten
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(10) Business Days after the date on which the Company Notice is given (with
such request stating (A) the amount of Registrable Shares to be so included, (B)
such Other Stockholder Group's preferred method of distribution of such
Registrable Shares, and (C) any other information that the Company Notice
reasonably requests to be included in such notice from such Other Stockholder
Group), (ii) no Series C Preferred Holder may join as an Initiating Holder in
any Demand Registration initiated by any Stockholder Group other than the Series
C Preferred Holders' Stockholder Group (but nonetheless may exercise rights as
to an Incidental Registration with respect to such Demand Registration to the
extent permitted pursuant to Section 3) and (iii) no Stockholder that is not a
member of the Series C Preferred Holders' Stockholder Group may join as an
Initiating Holder in any Demand Registration initiated by the Series C Preferred
Holders' Stockholder Group (but nonetheless may exercise rights as to an
Incidental Registration with respect to such Demand Registration to the extent
permitted pursuant to Section 3).
(ii) @Home shall as soon as reasonably practicable after the
date on which the Company Notice is given, file with the Commission and use
commercially reasonable efforts to cause to become effective as promptly as
practicable (but in no event prior to the date agreed to in writing by the
Original Initiating Holder), a Registration Statement which shall cover the
Registrable Shares requested to be registered in the manner set forth above.
Subject to the provisions of Section 2(c) below, each Registration Statement may
also include securities to be sold for the account of @Home or for any other
stockholder not holding Registrable Shares.
(iii) Provided that at least 75% of the Registrable Shares
requested to be registered by the Original Initiating Holder are included in
such registration, such Original Initiating Holder shall be deemed to have
utilized one of its Demand Registration Rights in respect thereof. The
Initiating Holders other than the Original Initiating Holder shall not be deemed
to have exercised a Demand Registration Right; provided, however, that for
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purposes of determining the expenses of registration to be paid by the Selling
Stockholders, such registration shall be considered a Demand Registration with
respect to all of the Initiating Holders.
(c) Underwriters; Limitation on Inclusion of Registrable Shares. The
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Original Initiating Holder shall have the right to select the managing
underwriter(s) for any underwritten public offering in connection with a Demand
Registration, which managing underwriter(s) shall
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be reasonably acceptable to @Home. Each Selling Stockholder electing to
participate in a Demand Registration involving an underwritten public offering
shall, as a condition to @Home's obligation hereunder to include such Selling
Stockholder's Registrable Shares in such Demand Registration, enter into and
perform its obligations under an underwriting agreement or other similar
arrangement in customary form with the managing underwriter(s) of such offering.
If the lead managing underwriter of any underwritten public offering in
connection with a Demand Registration determines in good faith that the
aggregate number of Registrable Shares to be offered exceeds the number of
shares that could be sold without having an adverse effect on such offering
(including the price at which the Registrable Shares may be sold), then the
number of Registrable Shares to be offered for the accounts of the Selling
Stockholders in such offering shall be reduced or limited on such basis as the
Selling Stockholders shall agree or, absent such an agreement, on a pro rata
basis in proportion to the respective numbers of Registrable Shares requested to
be included in such offering by such Selling Stockholders, to the extent
necessary to reduce the total number of shares to be included in such offering
to the amount recommended by such lead managing underwriter; provided, that if
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in connection with such Demand Registration, securities other than Registrable
Shares are being offered (whether for the account of @Home or for any
stockholder of @Home not exercising rights under this Section 2), such reduction
shall be made (i) first, from such securities held by Persons that are not
Initiating Holders (including without limitation securities being offered for
the account of @Home) and (ii) second, from the number of Registrable Shares
requested to be included in such offering by the applicable Initiating Holders,
on such basis as such Initiating Holders shall agree, or absent such an
agreement, on a pro rata basis, based on the number of Registrable Shares
requested to be included in the registration.
(d) Postponement of Registration. @Home shall be entitled to
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postpone, for a reasonable period of time not in excess of one hundred twenty
(120) days after its receipt of a Demand Notice, the filing of any Registration
Statement, if (i) at any time prior to the filing of such Registration Statement
the Board of Directors of @Home determines that such registration, or offering
or sale of shares thereunder, would result in a Disadvantageous Condition, and
(ii) @Home gives the Selling Stockholders written notice of such postponement;
provided, that with respect to a particular registration pursuant to a Demand
Notice, @Home may postpone its obligations under this Agreement (whether before
the filing of the registration statement, pursuant to this Section 2(d), or
after the filing of the registration statement and/or following the declaration
of effectiveness of the registration statement, pursuant to Section 4(b)
hereof) by reason of the existence of one or more Disadvantageous Conditions
only once per period of twelve consecutive calendar months with respect to any
given Original Initiating Holder. In the event of such postponement, @Home shall
notify all Selling Stockholders and file such Registration Statement as soon as
practicable after the Board of Directors of @Home shall determine, in its
reasonable business judgment, that such registration, offering and sale would
not result in such Disadvantageous Condition (but in no event later than one
hundred twenty (120) days after the date of the applicable Demand Notice). If
@Home shall postpone its obligations under this Agreement by reason of a
Disadvantageous Condition as described above, the Original Initiating Holder
shall have the right to withdraw its request for such Demand Registration by
giving notice to @Home at any time following said notice by @Home. Such
withdrawal request shall be deemed to apply to all Selling Stockholders that had
requested to participate in such
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registration. No Stockholder Group shall make a demand for registration during
the period of any such postponement (or if the Original Initiating Holder should
withdraw its demand for registration, until the Company notifies all
Stockholders of the end of the Disadvantageous Condition). Notice from @Home of
the existence of a Disadvantageous Condition shall be limited to a certified
extract of the Board resolution declaring the existence of a Disadvantageous
Condition without further detail unless reasonable further detail is
specifically requested by a Selling Stockholder.
(e) Withdrawal. A Demand Registration shall not be deemed to have
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been effected until the applicable Registration Statement shall have been
effective under the Securities Act (and not subject to any stop order,
injunction or other order or requirement of the Commission or other governmental
agency or court for any reason) for the period specified in Section 2(f). Each
Selling Stockholder may, no less than five (5) Business Days before any
Registration Statement becomes effective, withdraw its Registrable Shares from
inclusion therein, should the terms of the proposed distribution not be
satisfactory to such Selling Stockholder. If the Original Initiating Holder
elects to withdraw such Registration Statement, such Registration Statement
shall be withdrawn (if necessary) and such registration shall not be deemed to
have been a Demand Registration for purposes of the limitations on the number of
Demand Registrations hereunder contained in this Section 2; provided, that the
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Original Initiating Holder agrees to bear the Registration Expenses incurred by
@Home in connection with such Demand Registration (unless at the time of such
withdrawal, the Original Initiating Holder has learned of a material adverse
change in the operating results, financial condition or business of @Home or
@Home has suspended its obligations under Section 4(b) as a result of a
Disadvantageous Condition, of which the Original Initiating Holder was not aware
as of the time of the Demand Notice and has withdrawn such request promptly
following the disclosure by @Home of such material adverse change or
Disadvantageous Condition, in which case, the Original Initiating Holder shall
not be obligated to pay such Registration Expenses in order to avoid being
deemed to have used a Demand Registration). If (i) the Registration Statement
does not remain effective under the Securities Act for the period specified in
the first sentence of this paragraph (e) due to a stop order, injunction or
other order of the Commission or other governmental agency, (ii) the Original
Initiating Holder has not sold at least 75% of the Registrable Shares registered
under such Registration Statement and (iii) such Registration Statement
continues not to be effective for such reasons for a period exceeding ten days,
then the Original Initiating Holder may elect to withdraw such Registration
Statement by prompt written notice to the Company; and in such an event, such
registration shall not be deemed to have been a Demand Registration for purposes
of the limitations on the number of Demand Registrations hereunder contained in
Section 2.1(a), and the Company shall bear the Registration Expenses incurred in
connection with such registration.
(f) Effectiveness of Registration Statement. In connection with any
---------------------------------------
Demand Registration pursuant to this Section 2, @Home will use commercially
reasonable efforts to prepare and file with the Commission any amendments and
supplements to the Registration Statement and to the Prospectus used in
connection therewith, and to take any other actions, as may be necessary to keep
the Registration Statement and the Prospectus current and in compliance with the
provisions of the Securities Act, until the sooner to occur of (i) the sale of
all of the Registrable Shares covered by such Registration Statement in
accordance with the
11
intended methods of distribution thereof or (ii) the 120th day following the
effective date of such Registration Statement.
(g) Special Demand Registration Right. Notwithstanding the provisions
---------------------------------
of Section 2(a) hereof, in the event that TCI Sub has made the IPO Election in
accordance with the provisions of the Stockholders' Agreement, in addition to
any rights it may have under the Stockholders' Agreement with respect to causing
the Company to make an initial public offering of its Series A Common Stock, TCI
Sub shall have the right, exercisable during the time periods specified in the
Stockholders' Agreement for it to make the IPO Election, to exercise its Demand
Registration Right hereunder regardless of the condition set forth in Section
2(a) that a demand for registration may not be made prior to the first
anniversary of the IPO (the "SPECIAL DEMAND REGISTRATION RIGHT"). Such
registration shall not otherwise accelerate any Stockholder Group's right to
exercise a Demand Registration pursuant to this Agreement. In the case of the
exercise of the Special Demand Registration Right, TCI Sub shall be the Original
Initiating Holder pursuant to Section 2(b) and the other Stockholders (other
than the Series C Preferred Holders) shall have the rights granted to the Other
Stockholder Groups in accordance with Section 2(b), and the Company shall
otherwise comply with its obligations with respect to a Demand Registration in
accordance with the terms of this Agreement.
3. Incidental Registration.
------------------------
(a) Notice of Incidental Registration. If at any time following the
---------------------------------
closing date of the IPO, @Home proposes to register under the Securities Act any
shares of Series A Common Stock or other equity securities of @Home (whether in
an underwritten public offering or otherwise and whether or not for the account
of @Home or for any selling stockholder) (other than a registration statement on
Form S-4 or Form S-8 or any successor or comparable forms or a shelf
registration statement registering a continuous offering of securities pursuant
to Rule 415 or a registration pursuant to the Special Demand Registration Right)
in a manner which would permit the registration under the Securities Act of
Registrable Shares for sale to the public, @Home shall give written notice to
each Stockholder of its intention to do so not later than twenty (20) Business
Days prior to the anticipated filing date of the applicable Registration
Statement. Upon receipt of any such notice, each Stockholder may elect to
participate in such registration by giving @Home a written request to register
any or all of such Stockholder's Registrable Shares in connection with the
registration described in such written notice from @Home within ten (10)
Business Days after such notice has been given by @Home (with such request
stating (i) the amount of Registrable Shares to be included in such registration
by such Stockholder and (ii) any other information that @Home reasonably
requests be included in such registration statement) (such registration, an
"INCIDENTAL REGISTRATION"). Upon receipt of such request, @Home will, subject
to the provisions of Section 3(b) below, cause all such Registrable Shares
requested to be included in such Incidental Registration to be so included.
(b) Limitation on Inclusion of Registrable Shares. If the proposed
---------------------------------------------
method of distribution in connection with such an Incidental Registration is an
underwritten public offering and the managing underwriter thereof determines in
good faith that the number of such Registrable Shares to be included in such
offering would adversely affect such offering, the number of Registrable Shares
to be offered for the account of the Selling Stockholders shall be
12
reduced or limited in proportion to the number of Registrable Shares to be so
offered by such Selling Stockholders to the extent necessary to reduce the total
number of shares to be included in such offering to the amount recommended by
such managing underwriter; provided, that (i) if securities are being offered
--------
for the account of other persons or entities (other than, or in addition to,
@Home) such reduction shall be made pro rata from the securities intended to be
offered by such other persons or entities and the Selling Stockholders, but no
such reduction shall be made from the securities to be offered for the account
of @Home, (ii) if securities are being offered in connection with a Demand
Registration for the account of Initiating Holders (other than any Series C
Preferred Holder), such reduction shall be made pro rata from the securities
intended to be offered by the Series C Preferred Holders before any such
reduction is made from the securities intended to be offered for the account of
such Initiating Holders and (iii) if securities are being offered in connection
with a Demand Registration for the account of any Series C Preferred Holders
that are Initiating Holders, such reduction shall be made pro rata from the
securities intended to be offered by the Selling Stockholders (other than such
Series C Preferred Holders) before any such reduction is made from the
securities intended to be offered for the account of such Initiating Holders.
(c) Delay or Withdrawal of Registration. @Home may, without the
-----------------------------------
consent of any Stockholder, delay, suspend, abandon or withdraw any Incidental
Registration and any related proposed offering or other distribution in which
any Stockholder has requested inclusion of such Stockholder's Registrable Shares
pursuant to this Section 3; provided, that the applicable Selling Stockholders
--------
shall be entitled to continue such registration as a Demand Registration
pursuant to Section 2 following any such withdrawal by @Home to the extent that
such registration by the Selling Stockholders making such election would
otherwise satisfy the requirements of Section 2.
(d) Withdrawal by Selling Stockholder. Any Selling Stockholder may
---------------------------------
elect to withdraw its respective Registrable Shares from inclusion in an
Incidental Registration at any time prior to five (5) Business Days prior to the
then anticipated effective date of the applicable Registration Statement. No
such withdrawal shall relieve any withdrawing Selling Stockholder of its
obligation to pay expenses under Section 5.
(e) Underwriting Agreement. In connection with any Incidental
----------------------
Registration involving an underwritten public offering of securities of @Home
for the account of @Home, each Selling Stockholder electing to participate in
such Incidental Registration shall, as a condition to @Home's obligation
hereunder with respect to such Selling Stockholder's Registrable Shares, enter
into and perform its obligations under an underwriting agreement or other
similar arrangement in customary form with the managing underwriter of such
offering.
4. Obligations with Respect to Registration.
----------------------------------------
(a) Obligations of @Home. Whenever @Home is obligated by the
--------------------
provisions of this Agreement to effect the registration of any Registrable
Shares under the Securities Act, @Home shall:
13
(i) Subject to the provisions of Section 4(b), use
commercially reasonable efforts to cause the applicable Registration Statement
to become effective, and to prepare and file with the Commission any amendments
and supplements to the Registration Statement and to the Prospectus used in
connection therewith as may be necessary to keep the Registration Statement and
the Prospectus current and in compliance with the provisions of the Securities
Act, during the periods when @Home is required by this Agreement to keep the
Registration Statement effective and current.
(ii) At least three (3) Business Days prior to filing a
Registration Statement or Prospectus or any amendment or supplement thereto,
furnish to each Selling Stockholder and each underwriter, if any, of the
Registrable Shares covered by such Registration Statement copies of such
Registration Statement or Prospectus as proposed to be filed (including
documents to be incorporated by reference therein), which documents will be
subject to the reasonable review and comments of such Selling Stockholders (and
their respective counsel) during such three-Business-Day period, and @Home will
not file any Registration Statement or any Prospectus or any amendment or
supplement thereto (or any such documents incorporated by reference) containing
any statements with respect to such Selling Stockholders or the distribution of
the Registrable Shares to be included in such Registration Statement if a
Selling Stockholder shall reasonably object in writing. Thereafter, @Home will
furnish to such Selling Stockholder and each underwriter, if any, such number of
copies of such Registration Statement, each amendment and supplement thereto (in
each case including all exhibits thereto and documents incorporated by reference
therein), the Prospectus included in such Registration Statement (including each
preliminary Prospectus), and such other documents as such Selling Stockholder or
underwriter may reasonably request in order to facilitate the disposition of the
Registrable Shares owned by such Selling Stockholder.
(iii) After the filing of the Registration Statement, promptly
notify each Selling Stockholder of Registrable Shares covered by such
Registration Statement of the effectiveness thereof and of any stop order issued
or threatened by the Commission and take all reasonable actions required to
prevent the entry of such stop order or to remove it if entered and promptly
notify such Selling Stockholder of such lifting or withdrawal of such order.
(iv) Subject to the provisions of Section 4(c)(iv),
immediately notify each Selling Stockholder holding Registrable Shares covered
by the applicable Registration Statement at any time when a Prospectus relating
thereto is required to be delivered under the Securities Act, of (i) the
determination that a Disadvantageous Condition exists, or (ii) the occurrence of
an event requiring the preparation of a supplement or amendment to such
Prospectus so that, as thereafter delivered to the purchasers of such
Registrable Shares, such Prospectus will not contain an untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading and promptly make
available to each such Selling Stockholder any such supplement or amendment, and
subject to the provisions of this Agreement regarding the existence of a
Disadvantageous Condition, @Home will promptly prepare and furnish to each such
Selling Stockholder a supplement to or an amendment of such Prospectus so that,
as thereafter delivered to the purchasers of such Registrable Shares, such
Prospectus will not contain any untrue statement of
14
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading.
(v) Enter into customary agreements (including an
underwriting agreement in customary form including customary indemnification
provisions) and perform its obligations under any such agreement(s) and shall
take such other actions as are reasonably required in order to expedite or
facilitate the disposition of such Registrable Shares.
(vi) Make available for inspection by any Selling Stockholder
covered by such Registration Statement, any underwriter participating in any
disposition pursuant to such Registration Statement and any attorney, accountant
or other professional retained by any such Selling Stockholder or underwriter,
all financial and other records, pertinent corporate documents and properties of
@Home as shall be reasonably necessary to enable them to exercise their due
diligence responsibility in connection therewith, and cause @Home's officers,
directors and employees to supply all information reasonably requested by any of
such persons in connection with such Registration Statement. Information which
@Home determines, in good faith, to be confidential and which it notifies such
persons is confidential shall not be disclosed by such persons unless (i) the
disclosure of such information is necessary to avoid or correct a misstatement
or omission in such Registration Statement, (ii) the release of such information
is ordered pursuant to a subpoena or other order from a court of competent
jurisdiction or (iii) such information becomes public other than through a
breach by such persons of the confidentiality obligations of such persons. Each
such Selling Stockholder agrees that information obtained by it as a result of
such inspections shall be deemed confidential and shall not be used by it as the
basis for any market transactions in the securities of @Home unless and until
such information is made generally available to the public.
(vii) Furnish, in the case of an underwritten public offering,
to each Selling Stockholder and to each underwriter a signed counterpart of (A)
an opinion or opinions of counsel to @Home addressed to such Selling Stockholder
and underwriter (on which opinion both such Selling Stockholder and such
underwriter are entitled to rely) and (B) a comfort letter or comfort letters
from @Home's independent public accountants, each in customary form and covering
such matters of the type customarily covered by opinions or comfort letters, as
the case may be, as the holders of a majority of the Registrable Shares included
in such Registration Statement or the managing underwriter therefor reasonably
requests.
(viii) Prepare and file with the Commission promptly upon the
request of any Selling Stockholder, any amendments or supplements to such
Registration Statement or the applicable Prospectus which, in the reasonable
opinion of counsel for such Stockholders, is required under the Securities Act
or the rules and regulations thereunder in connection with the distribution of
the Registrable Shares by such Selling Stockholders.
(ix) Register or qualify the Registrable Shares covered by a
Registration Statement under the securities or blue sky laws of such
jurisdictions in the United States as the Selling Stockholders shall reasonably
request, and do any and all other acts and things which may be necessary to
enable each Selling Stockholder to consummate the disposition in such
jurisdictions of such Registrable Shares in accordance with a method of
distribution
15
described in such Registration Statement; provided, however, that @Home shall in
-------- -------
no event be required to qualify to do business as a foreign corporation or as a
dealer in any jurisdiction where it is not otherwise required to be so
qualified, to conform its capitalization or the composition of its assets at the
time to the securities or blue sky laws of such jurisdiction, to execute or file
any general consent to service of process under the laws of any jurisdiction, to
take any action that would subject it to service of process in suits other than
those arising out of the offer and sale of the Registrable Shares covered by
such Registration Statement, or to subject itself to taxation in any
jurisdiction where it has not theretofore done so.
(x) Cause such Registrable Shares covered by a Registration
Statement to be listed on the principal exchange or exchanges or qualified for
trading on the principal over the counter market on which the Series A Common
Stock is then listed or traded upon the sale of such Registrable Shares pursuant
to such Registration Statement.
(xi) Following the date that securities of @Home become
registered under the Exchange Act, make and keep information publicly available
relating to @Home so as to satisfy the corresponding requirements of Rule 144
under the Securities Act (or any successor or corresponding rule) and file with
the Commission all reports and other documents required of @Home under the
Securities Act and the Exchange Act in a timely manner.
(b) Disadvantageous Conditions. Notwithstanding anything to the
--------------------------
contrary contained herein, if at any time after the filing of a Registration
Statement or after it is declared effective by the Commission, @Home determines,
in its reasonable business judgment, that such registration, or offering and
sale of shares pursuant thereto, would result in a Disadvantageous Condition,
then @Home may, subject to the limitations set forth in Section 2(d), require
the suspension by each Selling Stockholder of the distribution of any of the
Registrable Shares by giving notice to such effect to each Selling Stockholder.
In the event that such notice is given, then until @Home has determined that
such registration, offering and sale no longer would result in a Disadvantageous
Condition, @Home's obligations under Section 2(b) and Section 4(a)(i), if the
Registration Statement has not become effective, or under Section 4(a)(i) and
(iv), if the Registration Statement has become effective, will be suspended (for
a total period not to exceed 120 days in the case of a Demand Registration). In
the event of a suspension pursuant to this Section 4(b) or otherwise after a
Registration Statement has been declared effective, the period of effectiveness
of such Registration Statement referred to in Section 4(a)(i) will be extended
by a number of days equal to the total number of days for which the distribution
of Registrable Shares included in such Registration Statement by the Selling
Stockholder has been suspended under this Section 4(b) or otherwise. If @Home
suspends its obligations under Section 2(d) or the distribution of Registrable
Shares under this Section 4(b) as to any Selling Stockholder, @Home shall
suspend such obligations and distributions as to all Selling Stockholders.
(c) Selling Stockholders' Obligations. @Home's obligations under this
---------------------------------
Agreement to a Selling Stockholder shall be conditioned upon such Selling
Stockholder's compliance with the following:
(i) Such Selling Stockholder shall cooperate with @Home in
connection with the preparation of the Registration Statement, and for so long
as @Home is
16
obligated to keep the Registration Statement effective, such Selling
Stockholder will provide to @Home, in writing, for use in the Registration
Statement, all information regarding such Selling Stockholder, its intended
method of disposition of the applicable Registrable Shares, and such other
information as @Home may reasonably request to prepare the Registration
Statement and Prospectus covering the Registrable Shares and to maintain the
currency and effectiveness thereof;
(ii) Such Selling Stockholder agrees that, upon receipt of any
notice from @Home of the happening of any event of the kind described in Section
4(a)(iv), such Selling Stockholder will forthwith discontinue disposition of
Registrable Shares pursuant to the applicable Registration Statement until such
Selling Stockholder's receipt of either notice from @Home that a Disadvantageous
Condition no longer exists (but for no longer than 120 days in the case of a
Demand Registration), or the copies of the supplemented or amended Prospectus
contemplated by Section 4(a)(iv), and, if so directed by @Home, such Stockholder
will deliver to @Home all copies in its possession of the most recent Prospectus
covering such Registrable Shares at the time of receipt of such notice.
(iii) Such Selling Stockholder agrees to convert all shares to
be sold by such Selling Stockholder pursuant to any Registration Statement filed
pursuant to this Agreement into shares of Series A Common Stock immediately
before the closing of such sale.
(iv) With respect to any sales of Registrable Shares made by a
Selling Stockholder more than sixty (60) days after the applicable Registration
Statement is declared effective, such Selling Stockholder shall give prior
written notice to @Home of any such proposed sale of Registrable Shares under
the Registration Statement and thereafter shall not sell any shares, if @Home
responds within the Applicable Time Period by delivering a notice pursuant to
Section 4(a)(iv), until @Home has notified such Selling Stockholder either that
the Disadvantageous Condition no longer exists or has made available copies of
the supplemented or amended Prospectus contemplated by Section 4(a)(iv). A sale
notice by a Selling Stockholder shall be effective for a period that ends at
5:00 p.m., New York time on the 10th business day after the end of the
Applicable Time Period. For purposes of this Section, the "APPLICABLE TIME
PERIOD" shall lapse (x) at 12:00 noon New York time on the second Business Day
after the Business Day on which the notice is delivered to @Home if such notice
is received by @Home at or before 12:00 noon New York time or (y) at 9:00 a.m.
New York time on the third Business Day after the Business Day on which the
notice is delivered to @Home if such notice is received by @Home after 12:00
noon New York time.
(d) Limits on Other Public Sales or Distributions. @Home agrees (i)
---------------------------------------------
not to effect any public sale or distribution of any of its equity securities or
of any security convertible into or exchangeable or exercisable for any equity
security of @Home during the fourteen (14) days prior to, and during the sixty
(60) day period beginning on, the effective date of any Demand Registration
(except as part of such registration) and (ii) that any agreement entered into
after the date of this Agreement pursuant to which @Home agrees to register or
to permit the participation in the registration of any securities of @Home shall
contain a provision under which holders of any such securities agree not to
effect any public sale or distribution of any such
17
securities during the periods described in clause (i) above, in each case
including a sale pursuant to Rule 144.
(e) Underwriting Agreement. Neither @Home nor any Stockholder may
----------------------
participate in any underwritten public offering in connection with a Demand
Registration or an Incidental Registration unless such person or entity (i)
agrees to sell its securities on the basis provided in any underwriting
arrangements approved by the party selecting the managing underwriter for such
offering and (ii) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangements and this Agreement.
(f) Stockholder Market Stand-Off Agreement. Each Stockholder hereby
--------------------------------------
agrees that (except as permitted herein in connection with any Special Demand
Registration Right) it shall not, to the extent specified by @Home and the
applicable managing underwriter(s) of Series A Common Stock (or other
securities) of @Home offered and sold in the IPO, sell, offer to sell, contract
to sell (including without limitation any short sale), grant any option to
purchase or otherwise transfer or dispose of any equity securities of @Home
(other than transfers of securities to a member of the Stockholder's Stockholder
Group or another Stockholder or members of its Stockholder Group; provided that
in each case, each transferee agrees in writing to be subject to the terms of
this Section 4(f) to the same extent as if the transferee were an original
Stockholder hereunder) during a reasonable and customary period of time
following the effective date of the IPO, as agreed to by @Home and the
applicable managing underwriter(s), not to exceed one (1) year following the
effective date of the IPO if the IPO occurs within four years after the date of
this Agreement or 180 days following the effective date of the IPO if the IPO
occurs more than four years after the date of this Agreement; provided that
(except as permitted herein in connection with any Special Demand Registration
Right) in no event shall such period of time with respect to the Series C
Preferred Holders' Stockholder Group, TCI Sub's Stockholder Group, Comcast Sub's
Stockholder Group, Cox Sub's Stockholder Group and the KPCB Affiliates'
Stockholder Group, respectively, be longer than such period of time with respect
to any other of such Stockholder Groups.
5. Expenses of Registration.
------------------------
(a) Registration Expenses. So long as the Original Initiating Holder
---------------------
requests registration of not less than 500,000 Registrable Shares, as adjusted
for stock splits, reverse stock splits, stock dividends, recapitalizations and
the like occurring after the date hereof (the "MINIMUM DEMAND SHARES"), then
except as provided in paragraphs (b) and (c) below, all Registration Expenses
incurred in connection with any Demand Registration or Incidental Registration
and the distribution of any Registrable Shares in connection therewith shall be
borne by @Home. For purposes of this Agreement, the term "REGISTRATION
EXPENSES" shall mean all (i) registration, qualification and filing fees, (ii)
fees and expenses of compliance with securities or blue sky laws, (iii) printing
expenses (or comparable duplication expenses) and escrow fees, (iv) fees and
disbursements of counsel for @Home, (v) customary fees and expenses for
independent certified public accountants retained by @Home (including the
expenses of any comfort letters or costs associated with the delivery by
independent certified public accountants of a comfort letter or comfort
letters), (vi) fees and expenses of any special experts retained by
18
@Home in connection with such registration, (vii) fees and expenses of listing
the Registrable Shares on a securities exchange, and (viii) in the case of a
Demand Registration only, the fees and expenses of a single counsel for the
Selling Stockholders. If the Original Initiating Holder requests registration of
less than the Minimum Demand Shares, then all Registration Expenses (including,
without limitation, all fees and expenses of counsel to @Home) shall be borne by
the Initiating Holders in proportion to the number of shares held by each of
them with respect to which such Initiating Holders have requested registration;
provided, however, that @Home shall bear all Registration Expenses in connection
--------
with the exercise of the Special Demand Registration Right regardless of the
number of Registrable Shares requested to be registered by the Original
Initiating Holder.
(b) Selling Stockholder Expenses. Each Selling Stockholder shall pay
----------------------------
all stock transfer fees or expenses (including the cost of all transfer tax
stamps), if any, and all underwriting or brokerage discounts and commissions
attributable to the distribution of the Registrable Shares of such Selling
Stockholder.
(c) Incidental Registrations. In connection with any Incidental
------------------------
Registration, each Selling Stockholder shall also pay its pro rata share (based
on the number of shares sold by such Selling Stockholder in the registration) of
the incremental filing fee under the Securities Act attributable to the
applicable Registrable Shares, and @Home shall not be responsible for the fees
and disbursements of counsel for the Selling Stockholders.
(d) Internal Expenses of @Home. Notwithstanding any other provision
--------------------------
of this Agreement, @Home shall be obligated to bear all internal expenses of
@Home in connection with any Demand Registration or Incidental Registration
(including, without limitation, all salaries of its officers and employees
performing accounting and legal functions and related expenses).
6. Indemnification.
---------------
(a) By @Home. @Home agrees to indemnify and hold harmless each
--------
Stockholder Indemnified Party from and against any Losses, joint or several, to
which such Stockholder Indemnified Party may become subject under the Securities
Act, state securities or blue sky laws, common law or otherwise, insofar as such
Losses (or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
applicable Registration Statement or Prospectus, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, or the breach or violation of any common
law rule or regulation applicable to @Home and relating to action required of or
inaction by @Home in connection with such Registration Statement or Prospectus;
and @Home will reimburse each such Stockholder Indemnified Party for any
reasonable fees and expenses of a single outside legal counsel for all
Stockholder Indemnified Parties, or in the event any Stockholder is advised by
counsel that there may be a conflict of interest between Stockholders with
respect to such matter, two separate outside legal counsel for all Stockholder
Indemnified Parties, or other expenses reasonably incurred by them, as incurred,
in connection with investigating or defending any such claims; provided, that
--------
@Home will not
19
indemnify or hold harmless any Stockholder Indemnified Party from or against any
such Losses (including any related expenses) to the extent the untrue statement,
omission or allegation thereof upon which such Losses (including any related
expenses) are based (x) was made in reliance upon and in conformity with written
information provided by or on behalf of the applicable Selling Stockholder
specifically for use or inclusion in the applicable Registration Statement or
Prospectus or (y) was made in any Prospectus used after such time as @Home
advised such Selling Stockholder that the filing of a post-effective amendment
or supplement thereto was required, except the Prospectus as so amended or
supplemented.
(b) By Selling Stockholders. Each Selling Stockholder, individually
-----------------------
and not jointly, agrees to indemnify and hold harmless each Company Indemnified
Party and each other Stockholder Indemnified Party from and against any Losses,
joint or several, to which such Company Indemnified Party or any other
Stockholder Indemnified Party may become subject, insofar as such Losses (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the applicable
Registration Statement or the Prospectus, or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, if the statement or omission was made in reliance upon and
in conformity with written information provided by or on behalf of such Selling
Stockholder or any person who controls such Selling Stockholder specifically for
use or inclusion in the applicable Registration Statement or Prospectus;
provided, that such Selling Stockholder will not indemnify or hold harmless any
--------
Company Indemnified Party or other Stockholder Indemnified Party from or against
any such Losses (including any related expenses) (i) to the extent the untrue
statement, omission or allegation thereof upon which such Losses (including any
related expenses) are based was made in any Prospectus used after such time as
such Selling Stockholder advised @Home that the filing of a post-effective
amendment or supplement thereto was required, except the Prospectus as so
amended or supplemented, or (ii) in an amount that exceeds the net proceeds
received by such Selling Stockholder from the sale of Registrable Shares
pursuant to such Registration Statement.
(c) Procedures. Each Indemnified Party shall give notice to each
----------
Indemnifying Party promptly after such Indemnified Party has actual knowledge of
any claim as to which indemnity may be sought, and the Indemnifying Party may
participate at its own expense in the defense, or if it so elects, assume the
defense of any such claim and any action or proceeding resulting therefrom,
including the employment of counsel and the payment of all expenses. The
failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party from its obligations to indemnify such
Indemnified Party, except to the extent the Indemnified Party's failure to so
notify actually prejudices the Indemnifying Party's ability to defend against
such claim, action or proceeding. In the event that the Indemnifying Party
elects to assume the defense in any action or proceeding, an Indemnified Party
shall have the right to employ separate counsel in any such action or proceeding
and to participate in the defense thereof, but such Indemnified Party shall pay
the fees and expenses of such separate counsel unless (i) the Indemnifying Party
has agreed to pay such fees and expenses or (ii) the named parties to any such
action or proceeding (including any impleaded parties) include such Indemnified
Party and the Indemnifying Party, and such Indemnified Party shall have been
advised by counsel that there may be a conflict of interest between such
Indemnified Party and
20
the Indemnifying Party in the conduct of the defense of such action (in which
case, if such Indemnified Party notifies the Indemnifying Party in writing that
it elects to employ separate counsel at the expense of the Indemnifying Party,
the Indemnifying Party shall not assume the defense of such action or proceeding
on such Indemnified Party's behalf, it being understood, however, that the
Indemnifying Party shall not, in connection with any one such action or
proceeding or separate but substantially similar or related actions or
proceedings arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys at any time for all Indemnified Parties, which firm shall be
designated in writing by the applicable Indemnified Parties). No Indemnifying
Party, in the defense of any such claim or litigation, shall, except with the
consent of the Indemnified Party, consent to entry of any judgment or enter into
any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release from
all liability in respect to such claim or litigation.
(d) Contribution. If the indemnification provided for under this
------------
Section 6 is unavailable to or insufficient to hold the Indemnified Party
harmless under subparagraphs (a) or (b) above in respect of any Losses referred
to therein for any reason other than as specified therein, then the Indemnifying
Party shall contribute to the amount paid or payable by such Indemnified Party
as a result of such Losses (i) in such proportion as is appropriate to reflect
the relative benefits received by the Indemnifying Party, on the one hand, and
such Indemnified Party, on the other, from the subject offering or distribution
and the relative fault of the Indemnifying Party, on the one hand, and such
Indemnified Party, on the other, in connection with the statements or omissions
which resulted in such Losses, as well as any other relevant equitable
considerations. The relative benefits received by the Indemnifying Party, on
the one hand, and the Indemnified Party, on the other, shall be deemed to be in
the same proportion as the net proceeds of the offering or other distribution
received by the Indemnifying Party bears to the net proceeds of the offering or
other distribution received by the Indemnified Party. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by (or omitted to be supplied
by) the Indemnifying Parties or Indemnified Parties, the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission, the relative benefits received by each party from
the sale of the Registrable Shares, and any other equitable considerations
appropriate under the circumstances. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
7. Limitation on Other Registration Rights. Notwithstanding any other
---------------------------------------
provision of this Agreement, without the prior written consent of Stockholders
holding in the aggregate 66-2/3% of the Registrable Shares then outstanding,
@Home shall not grant to any stockholder of @Home (or the holder of any
securities of @Home convertible into or exchangeable or exercisable for any
other securities) any "piggy-back" or other similar right to participate in any
Demand Registration, other than any rights specifically granted in this
Agreement.
8. Registration Rights Subject to Stockholders' Right of First Offer.
-----------------------------------------------------------------
Notwithstanding the foregoing, the exercise of a Stockholder's registration
rights with respect to
21
Registrable Shares pursuant to this Agreement shall be subject to the other
Stockholders' Right of First Offer (as set forth in the Stockholders'
Agreement), unless specifically exempted therefrom in accordance with the terms
of the Stockholders' Right of First Offer (as set forth in the Stockholders'
Agreement).
9. Miscellaneous.
-------------
9.1 Notices. All notices, requests, demands, waivers and other
--------
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered personally, mailed, certified or registered mail with
postage prepaid, or sent by reliable overnight courier, or telecopier, as
follows:
(a) @Home:
At Home Corporation
000 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxx, General Counsel
Facsimile: (000) 000-0000
with a copy to:
Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
(b) Stockholders:
(i) TCI Internet Holdings, Inc.
0000 XXX Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
President
Facsimile: (000) 000-0000
with a copy to:
Xxxxx & Xxxxx, L.L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxxxx X. XxXxxxx, Esq.
Facsimile: (000) 000-0000
22
(ii) Comcast PC Investments, Inc.
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to:
Comcast Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Pick
Vice President
Facsimile: (000) 000-0000
and to:
Wolf, Block, Xxxxxx and Xxxxx-Xxxxx
Packard Building, 7th Floor
00xx xxx Xxxxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
(iii) Cox Teleport Providence, Inc.
c/o Cox Communications, Inc.
0000 Xxxx Xxxxx Xxxxx, XX
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Senior Vice President
Facsimile: (000) 000-0000
with a copy to:
Dow Xxxxxx & Xxxxxxxxx P.L.L.C.
0000 Xxx Xxxxxxxxx Xxx., X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
23
(vi) KPCB VII Associates
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Attention: L. Xxxx Xxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
and to:
(vii) any other Stockholders, at the
address and the facsimile number
listed on the signature pages hereto.
or to such other person or address as any party shall specify by notice in
writing to the other party. All notices and other communications given to a
party in accordance with the provisions of this Agreement shall be deemed to
have been given (i) three Business Days after the same are sent by certified or
registered mail, postage prepaid, return receipt requested, (ii) when delivered
by hand or transmitted by telecopy (confirmation received) or (iii) one Business
Day after the same are sent by a reliable overnight courier service, with
acknowledgment of receipt requested. Notwithstanding the preceding sentence,
notice of change of address shall be effective only upon actual receipt thereof.
9.2 Actions by Members of a Stockholder Group. All actions and
-----------------------------------------
determinations by, and all notices by or to, a Stockholder Group or any member
thereof shall be deemed validly taken or made (in the case of actions or
determinations) or given (in the case of notices), if taken, made or given, as
the case may be, by or to the Designated Representative of its Stockholder
Group, which shall initially be (i) TCI Sub (in the case of its Stockholder
Group), (ii) KPCB VII Associates (in the case of its Stockholder Group), (iii)
Cox Sub (in the case of its Stockholder Group), (iv) Comcast Sub (in the case of
its Stockholder Group), (v) Redwood (in the case of Developer's Stockholder
Group), or (vi) the person named on the signature page hereof as the Designated
Representative of the Series C Preferred Holders (in the case of the Series C
Preferred Holders' Stockholder Group), and such actions, determinations and
notices shall be binding upon all members of any such Stockholder Group for all
purposes of this Agreement. If any of TCI Sub, KPCB VII Associates, Cox Sub or
Comcast Sub (or any successor thereto pursuant to this sentence) is no longer in
existence or no longer beneficially owns any Registrable Shares, but its
Stockholder Group (or a successor or permitted assign thereof) continues to have
rights and/or obligations hereunder, then such Stockholder shall appoint one
such continuing entity as its replacement as Designated Representative of its
Stockholder Group; provided that if no such appointment is made, such
Stockholder's Parent (as
24
defined in the Stockholders' Agreement) shall be deemed to be such replacement.
The Designated Representative of Developer's Stockholder Group shall
automatically (without any further action) be: (i) Redwood for as long as
Redwood is the general partner of Developer, and (ii) when Redwood is no longer
the general partner of Developer, the person or entity which is from time to
time the general partner of Developer, upon such person's or entity's written
notice to @Home. If the Designated Representative of the Series C Preferred
Holders (or any successor thereto pursuant to this sentence) is no longer in
existence or no longer beneficially owns any Registrable Shares, but its
Stockholder Group (or a successor or permitted assign thereof) continues to have
rights and/or obligations hereunder, then such Stockholder Group shall appoint
one such continuing entity as the replacement Designated Representative of the
Series C Preferred Holders' Stockholder Group; provided that if no such
--------
appointment is made, then such continuing entity holding the greatest number of
Registrable Shares shall be deemed to be such replacement. The Designated
Representative of the Series C Preferred Holders' Stockholder Group shall act
only upon the written instructions of Series C Preferred Holders holding at
least a majority of the Registrable Shares issued or issuable upon conversion of
the Series C Preferred (including but not limited to shares of Series C
Preferred issued or issuable upon exercise of the Canadian MSO Warrants). Each
member of another Stockholder Group may rely upon the notification or advice of
a Designated Representative with respect to any matter relating to the members
of such Designated Representative's Stockholder Group. To the extent any party
to this Agreement is required to take any action hereunder, it agrees to use its
reasonable best efforts to cause the other members of its Stockholder Group to
take such action.
9.3 Amendment. Any provision of this Agreement may be amended or
----------
modified in whole or in part at any time by an agreement in writing among @Home
and the Designated Representatives of each of the parties hereto, executed in
the same manner as this Agreement (other than (i) the Designated Representative
of Developer and its permitted transferees hereunder, which, together with
@Home, shall have the right to amend, modify or waive only those provisions of
this Agreement applicable only to Developer and (ii) the Designated
Representative of the Series C Preferred Holders and their permitted transferees
hereunder, which, together with @Home, shall have the right to amend, modify or
waive only those provisions of this Agreement applicable only to the Series C
Preferred Holders and shall have no right to vote on any other amendments,
modifications or waivers under this Agreement); provided that the provisions of
--------
Section 4(f) of this Agreement may be amended to extend the time periods
specified therein (which extended time period shall be the same for each
Stockholder) by an agreement in writing among @Home and the Designated
Representative of the TCI Sub Stockholder Group and (x) so long as each of the
Comcast Sub Stockholder Group, the Cox Sub Stockholder Group and the KPCB
Stockholder Group include an Eligible Stockholder, the Designated
Representatives of any two of such three Stockholder Groups, (y) so long as only
two of such three Stockholder Groups include an Eligible Stockholder, the
Designated Representative of either one of such two Stockholder Groups which
contain an Eligible Stockholder, and (z) so long as only one of such three
Stockholder Groups includes an Eligible Stockholder, no approval of any of the
Designated Representatives of such Stockholder Groups will be required, and any
such amendment shall be binding on all holders of Registrable Shares. No
consent, waiver or similar act shall be effective unless in writing.
25
9.4 Entire Agreement. This Agreement constitutes the entire
-----------------
agreement among the parties hereto and supersedes all prior agreements and
understandings, oral and written, among the parties hereto with respect to the
subject matter hereof, including without limitation the Prior Registration
Agreement, which shall be superseded in its entirety by this Agreement effective
upon execution of this Agreement.
9.5 Counterparts. This Agreement may be executed in two or more
-------------
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
9.6 Governing Law. This Agreement shall be governed by and
--------------
interpreted in accordance with the internal laws of the State of Delaware,
without giving effect to principles of conflicts of laws.
9.7 Assignment. No party hereto may assign its rights under this
-----------
Agreement without the prior written consent of @Home, other than (i) in the case
of parties other than the Series C Preferred Holders, to a member of the party's
Stockholder Group or to another Stockholder or members of its Stockholder Group,
(ii) in the case of any Series C Preferred Holder, to any transferee of such
Series C Preferred Holder (including without limitation a Controlled Affiliate
of the Series C Preferred Holder) receiving at least twenty-five percent (25%)
of the shares of Series C Preferred (or Series A Common Stock issued upon
conversion of the Series C Preferred) that were originally purchased, and/or
that were originally issuable upon exercise of the Canadian MSO Warrants, by the
relevant Series C Preferred Investor under the Series C Purchase Agreements and
the Canadian MSO Warrants, respectively or (iii) in connection with the transfer
by a Canadian MSO of Registrable Shares to Additional Canadian MSO's, as that
term is defined in the letter agreement, dated as of the date hereof among the
Company and the Canadian MSO's with respect to the sale of the Canadian MSO
Warrants; provided, however, that no Person may be assigned any of the foregoing
-------- -------
rights unless the Company is given written notice by the assigning party at the
time of such assignment stating the name and address of the assignee and
identifying the securities of the Company as to which the rights in question are
being assigned; and provided, further, that any such assignee shall receive such
-------- -------
assigned rights subject to all the terms and conditions of this Agreement,
including, without limitation, the provisions of this Section 9.7. Subject to
the foregoing, this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
9.8 Termination of Certain Company Obligations. The Company shall
------------------------------------------
have no obligations pursuant to Sections 2 and 3 with respect to any Registrable
Shares proposed to be registered or sold by a Series C Preferred Holder after
the fifth anniversary of the closing of the IPO.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
26
IN WITNESS WHEREOF, @Home, the Series C Preferred Investors and each
of the required Designated Representatives of the other parties hereto have
executed this Agreement as of the date first above written.
AT HOME CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President/CEO
TCI INTERNET HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President/CEO
KPCB VII ASSOCIATES
By: /s/ Xxxxxxx X. Xxxxxx, III
-------------------------------------
Name: Xxxxxxx X. Xxxxxx, III
Title: General Partner
COMCAST PC INVESTMENTS, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
COX TELEPORT PROVIDENCE, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: V.P.
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
27
Series C Preferred Investors:
----------------------------
XXXXXX CABLE SYSTEMS LIMITED
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
Title: President, Rogers Wave
By: /s/ X.X. Xxxx
-------------------------------------
Name: X.X. Xxxx
Title: Vice President, Treasurer
Address of Series C Preferred Investor:
Address: Suite 0000 Xxxxxx Xxxxx
00 Xxxx Xx. X. Xxxxxxx X0X 0X0
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
Designated Representative of the
Series C Preferred Holders:
XXXXXX COMMUNICATIONS
Address: Ste. 0000 Xxxxxx Xxxxx
00 Xxxx Xx. X. Xxx 0000 Xxxxxxx
X0X 0X0
Attention: Vice President, Law and General
Counsel
Facsimile: (000) 000-0000
with a copy to:
Xxxxx Xxxxxx, Esq.
Vice President, Law and General Counsel
Suite 6400, Scotia Plaza
00 Xxxx Xx. X.
Xxxxxxx, Xxxxxxx X0X 0X0
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
28
Series C Preferred Investors:
----------------------------
XXXX CABLESYSTEMS LTD.
By: /s/ Xxx Xxxx, Jr.
-------------------------------------
Name: Xxx Xxxx, Jr.
Title: President, Xxxx CableSystems Ltd.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Secretary
Address of Series C Preferred Investor:
Address: Xxxxx 000, 000-0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxx Xxxx Jr., President
Facsimile: (000) 000-0000
Designated Representative of the
Series C Preferred Holders:
Name:___________________________________
Address:________________________________
________________________________________
Attention:______________________________
Facsimile:______________________________
With a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Corporate Counsel
Shaw Cablesystem Ltd.
Xxxxx 000, 000 0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx X0X0X0
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
29
Series C Preferred Investors:
----------------------------
SUN MICROSYSTEMS, INC.
Name: /s/ Xxxxxxx Xxxxxx
-----------------------------------
By: Xxxxxxx Xxxxxx,
Title: Vice President & Chief Financial Officer
Address of Series C Preferred Investor:
Address: 0000 Xxxxxx Xxxxxx, XX XXXX-000
Xx. Xxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
Designated Representative of the
Series C Preferred Holders:
Name:___________________________________
Address:________________________________
________________________________________
Attention:______________________________
Facsimile:______________________________
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
30
Series C Preferred Investors:
----------------------------
Name: /s/ Xxxxx Xxxxxx
-----------------------------------
By: SR. VP & CFO
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President & Chief
Financial Officer
Address of Series C Preferred Investor:
Address: Netscape Communications Corp.
000 X. Xxxxxxxxxxx Xx.
Xx. Xxxx, XX 00000
Attention: Xxxxx X.X. Xxxxxx
Facsimile: (000) 000-0000
Designated Representative of the
Series C Preferred Holders:
Name:___________________________________
Address:________________________________
_________________________________________
Attention:_______________________________
Facsimile:_______________________________
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
31
Series C Preferred Investors:
----------------------------
Name: Xxxxx Xxxxxxxxx
-----------------------------------
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxxx
Title:
Address of Series C Preferred Investor:
Address: c/o Netscape Communications Corp.
000 X. Xxxxxxxxxxx Xx.
Xx. Xxxx, XX 00000
Attention:______________________________
Facsimile: (000) 000-0000
Designated Representative of the
Series C Preferred Holders:
Name:___________________________________
Address:________________________________
________________________________________
Attention:______________________________
Facsimile:______________________________
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
32
Series C Preferred Investors:
----------------------------
Motorola, Inc.
By: /s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President and General
Manager, Multimedia Group
Address of Series C Preferred Investor:
Address: 0000 X. Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
Designated Representative of the
Series C Preferred Holders:
Name:___________________________________
Address:________________________________
________________________________________
Attention:______________________________
Facsimile:______________________________
with a copy to:
Motorola, Inc.
Attn: General Counsel
0000 X. Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
33
Series C Preferred Investors:
----------------------------
Name: Bay Networks, Inc.
By: /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: Chief Financial Officer
Address of Series C Preferred Investor:
Address: 0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxx
------------------------------
Facsimile: (000) 000-0000
------------------------------
Designated Representative of the
Series C Preferred Holders:
Name:___________________________________
Address:________________________________
________________________________________
Attention:______________________________
Facsimile:______________________________
[SIGNATURE PAGE TO THIRD AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT]
34