EXHIBIT 10.02
May 9, 1996
AT HOME CORPORATION
000 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
TCI Internet Holdings, Inc.
0000 XXX Xxxxxxx
Xxxxxxx Xxxxx XX
Xxxxxxxxx, Xxxxxxxx 00000-0000
Kleiner, Perkins, Xxxxxxxx & Xxxxx VII
KPCB VII Founders Fund
KPCB Information Services Zaibatsu Fund II
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Gentlemen:
Reference is made to the Stock Purchase Agreement, dated as of August
29, 1995 (the "Prior Agreement"), among (i) At Home Corporation, a Delaware
corporation (the "Company"), (ii) TCI Internet Holdings, Inc., a Delaware
corporation ("TCI Sub"), and (iii) Kleiner, Perkins, Xxxxxxxx & Xxxxx VII, KPCB
VII Founders Fund, and KPCB Information Services Zaibatsu Fund II, each of which
is a California limited partnership (such limited partnerships are hereinafter
referred to collectively as the "KPCB Purchasers" and individually as a "KPCB
Purchaser"), pursuant to which (a) TCI Sub purchased an aggregate of 7,700,000
shares (the "Initial TCI Shares") of the Company's Series T Convertible
Participating Preferred Stock, par value $.01 per share (the "Series T Preferred
Stock") and (b) the KPCB Purchasers purchased an aggregate of 2,300,000 shares
(the "Initial KPCB Shares") of the Company's Series K Convertible Participating
Preferred Stock, par value $.01 per share (the "Series K Preferred Stock"). In
order to provide additional funding to
-1-
the Company to continue the expansion of its business, TCI Sub and the KPCB
Purchasers desire to purchase additional shares of the Series T Preferred Stock
and the Series K Preferred Stock, respectively, upon the terms and subject to
the conditions set forth, or incorporated by reference in, this letter agreement
(this "Agreement"). TCI Sub, on one hand, and the KPCB Purchasers
(collectively), on the other hand, are referred to hereinafter separately as a
"Purchaser" or together as the "Purchasers".
1. PURCHASE AND SALE OF STOCK.
--------------------------
(A) Sale and Issuance of Series T Preferred Stock and Series K
----------------------------------------------------------
Preferred Stock Subject to the terms and conditions of this Agreement, (I) the
---------------
Company agrees to issue and sell to TCI Sub, and TCI Sub agrees to purchase from
the Company, at the Closing (as defined below), 7,700,000 shares of the Series T
Preferred Stock, for an aggregate purchase price of $7,700,000 and (II) the
Company agrees to issue and sell to the KPCB Purchasers, and the KPCB
Purchasers, jointly and severally, agree to purchase from the Company, at the
Closing, an aggregate of 2,300,000 shares of the Series K Preferred Stock, for
an aggregate purchase price of $2,300,000. The Series K Preferred Stock and the
Series T Preferred Stock being purchased pursuant to this Agreement are
sometimes referred to herein as the "Shares." Upon the issuance and sale and
receipt of the purchase price therefor in accordance with the terms of this
Agreement, such Shares will be duly authorized, validly issued and outstanding
and will be fully paid and non-assessable.
(B) Closing. The closing of the purchase and sale of the
-------
Shares (the "Closing") shall take place at the offices of Xxxxx & Xxxxx, L.L.P.,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 a.m., New York City time, on
May 9, 1996, or at such other time and place as the Company and the Purchasers
shall mutually agree. The date on which the Closing occurs is referred to
herein as the "Closing Date." At the Closing, the Company shall deliver (I) to
TCI Sub a certificate or certificates registered in the name of TCI Sub
representing 7,700,000 shares of Series T Preferred Stock against payment of the
purchase price therefor in cash or by wire transfer in immediately available
funds and (II) to the KPCB Purchasers certificates registered in the name of the
KPCB Purchasers representing an aggregate of 2,300,000 shares of Series K
Preferred Stock (in such relative amounts as the KPCB Purchasers may request)
against payment of the purchase price therefor in cash or by wire transfer in
immediately available funds.
-2-
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
--------------------------------------------------------
The Company hereby represents and warrants to, and covenants with, each of the
Purchasers as follows:
(A) Each of the representations and warranties of the Company
contained in Sections 2.4, 2.6, 2.7, 2.8, 2.9, 2.13 and 2.14 (the "Prior
Agreement Sections") of the Prior Agreement is true and correct, with the same
force and effect as if each of such representations and warranties (together,
subject to Section 2(b) hereof, with the definitions of all terms used therein
which are defined in the Prior Agreement) were set forth at length herein and
made directly to the Purchasers on and as of the date hereof and as if each
Exhibit and Appendix referred to therein and attached to the Prior Agreement
were attached to and made a part of this Agreement, except that for purposes of
this Agreement (i) all references to Schedules in the Prior Agreement Sections
shall be deemed to be references to Schedules to this Agreement and such
Schedules shall be prepared with respect to and attached to this Agreement
(labeled with the respective Prior Agreement Section number) and (ii) the
reference in Section 2.13 to "Section 6" shall be deemed to refer to Section 5
hereof. With respect to any covenants or agreements of the Company set forth in
the Prior Agreement Sections, the Company covenants and agrees to perform its
obligations related thereto in accordance with the terms of the Prior Agreement
Sections, as if such covenants and agreements were set forth at length herein,
and made directly to the Purchasers on and as of the date hereof.
(B) In the event that any term contained in any of the Prior
Agreement Sections is defined in the Prior Agreement (the "Incorporated
Definitions") and is also defined in this Agreement, then for purposes of this
Section 2 (but not for purposes of any other provision of this Agreement, except
as otherwise specifically provided herein) such term will have the meaning
assigned to it in the Prior Agreement, except that for purposes of this
Agreement all references in the Prior Agreement Sections and the Incorporated
Definitions to (i) the "Shares" will be deemed to be references to the Shares
(as defined in this Agreement), (ii) the "Transaction Agreements" will be deemed
to be references to the Transaction Agreements (as defined in this Agreement),
(iii) the "Closing" will be deemed to be references to the Closing (as defined
in this Agreement), and (iv) the "Restated Certificate" and the "Bylaws" will be
deemed to be references to the Restated Certificate and the Bylaws (each as
defined in this Agreement).
(C) In addition to the foregoing, the Company makes the
following representations and warranties to the Purchasers:
-3-
(I) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware
and has all requisite corporate power and authority to carry on its
business as currently conducted and as currently proposed to be
conducted. The Company is qualified and in good standing to do
business in each jurisdiction in which the failure to so qualify would
have a material adverse effect on its business, properties, prospects
or financial condition. The Company has delivered to each of the
Purchasers true and accurate copies of the Company's Amended and
Restated Certificate of Incorporation and Bylaws, each as amended
through, and in effect on, the date hereof (the "Restated Certificate"
and the "Bylaws").
(II) The authorized capital stock of the Company consists of (x)
150,000,000 shares of common stock, par value $.01 per share (the
"Common Stock"), of which 75,000,000 shares have been designated as
Series A Common Stock (the "Series A Common Stock") and 75,000,000
shares have been designated as Series B Common Stock (the "Series B
Common Stock"), and (y) 75,000,000 shares of preferred stock, par
value $.01 per share (the "Preferred Stock"), of which (1) 25,000,000
shares have been designated as Series T Preferred Stock, (2) 7,000,000
shares have been designated as Series K Preferred Stock, and (3)
43,000,000 shares are undesignated as to series and shall be issuable
pursuant to authority granted in the Restated Certificate to the Board
of Directors (the "Series Preferred Stock"). As of the date hereof,
(x) no shares of Series A Common Stock or Series B Common Stock have
been issued or are outstanding, (y) other than the Initial TCI Shares
and the Initial KPCB Shares, no shares of Series T Preferred Stock or
Series K Preferred Stock have been issued or are outstanding, and (z)
no shares of Series Preferred Stock have been designated as a series
or class of Preferred Stock (nor has any action been taken to so
designate any shares of Series Preferred Stock), and no shares of
Series Preferred Stock have been issued or are outstanding. All such
issued and outstanding shares have been duly authorized and validly
issued and are fully paid and nonassessable and have been issued in
compliance with all applicable state and federal laws concerning the
issuance of securities. The Company has reserved, and agrees that it
will at
-4-
all times keep reserved, such number of shares of Series B Common
Stock as is sufficient to provide for the conversion of all shares of
the Series T and Series K Preferred Stock (including the Shares to be
issued pursuant to this Agreement) outstanding from time to time, and
has reserved, and agrees that it will at all times keep reserved, such
number of shares of Series A Common Stock as is sufficient to provide
for the conversion of all shares of Series B Common Stock then issued
and outstanding or issuable upon the conversion, exercise or exchange
of any security (including the shares of Series B Common Stock to be
issued upon conversion of the Shares) outstanding from time to time.
In addition to the foregoing, the Company has reserved for issuance
such number of shares of Series A Common Stock as are issuable upon
exercise of the stock options granted or to be granted as listed on
Schedule 2(c) hereto. Except for the transactions contemplated by this
Agreement or the Prior Agreement (including the transactions
contemplated by the Stockholders' Agreement and the Registration
Rights Agreement (each as defined in the Prior Agreement)), or as set
forth on Schedule 2(c) hereto, (x) there are: (i) no outstanding
warrants, options, rights (including conversion or preemptive rights),
or agreements to subscribe for or purchase any capital stock or other
securities from the Company; (ii) to the knowledge of the Company, no
voting trusts or voting agreements among, or irrevocable proxies
executed by, stockholders of the Company; (iii) no existing rights of
stockholders to require the Company to register any securities of the
Company or to participate with the Company in any registration by the
Company of its securities; and (iv) to the knowledge of the Company,
no agreements among stockholders providing for the purchase or sale of
the Company's capital stock, and (y) the Company has not taken any
action that would result in a stock split, stock dividend, reverse
split, recapitalization or reclassification affecting its capital
stock or the designation of the Series Preferred Stock as a series or
class of Preferred Stock of the Company.
(III) The Company has full power and authority to execute,
deliver and perform its obligations under this Agreement, the
Registration Rights Amendment (as defined below) and the Stockholders'
Agreement Amendment (as defined below) (collectively, the "Transaction
Agreements"). All
-5-
corporate action on the part of the Company, its directors and its
stockholders necessary for the authorization, execution, delivery and
performance of this Agreement and the other Transaction Agreements by
the Company, the authorization, sale, issuance and delivery of the
Shares, and the performance of all of the Company's obligations
hereunder and thereunder has been taken. Each of the Transaction
Agreements, when executed and delivered by the Company, and assuming
the due execution and delivery thereof by the other parties hereto or
thereto, shall constitute a valid and legally binding obligation of
the Company, enforceable against it in accordance with its terms,
subject to: (x) judicial principles limiting the availability of
specific performance, injunctive relief and other equitable remedies
and (y) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect generally relating to or
affecting creditors' rights.
(IV) Since August 29, 1995, neither the Restated Certificate, the
Bylaws, the Registration Rights Agreement, nor the Stockholders'
Agreement has been amended in any way, and except as specified in this
Agreement, no action has been taken and no action is contemplated to
be taken in respect of any amendment to the foregoing documents.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASERS.
-----------------------------------------------------------
Each Purchaser, on behalf of itself and not jointly with the other Purchaser,
hereby represents and warrants to, and covenants with, the Company as follows:
(A) Each of the representations and warranties of the Purchaser
contained in Sections 3.1, 3.2, 3.3, 3.4, 3.5, 3.6 and 3.9 of the Prior
Agreement (the "Purchaser Prior Agreement Sections") is true and correct, with
the same force and effect as if each of such representations and warranties
(together, subject to Section 3(b) hereof, with the definitions of all terms
used therein which are defined in the Prior Agreement) were set forth at length
herein and made directly to the Company on and as of the date hereof and as if
each Exhibit and Appendix referred to therein and attached to the Prior
Agreement were attached to and made a part of this Agreement, except that for
purposes of this Agreement (i) all references to Schedules in the Purchaser
Prior Agreement Sections shall be deemed to be references to Schedules to this
Agreement and such Schedules shall be prepared with respect to and attached to
this Agreement (labeled with the
-6-
respective Purchaser Prior Agreement Section number) and (ii) the reference in
Section 3.9 to "Section 7" shall be deemed to refer to Section 4 hereof. With
respect to any covenants or agreements of the Purchaser set forth in the
Purchaser Prior Agreement Sections, the Purchaser covenants and agrees to
perform its obligations related thereto in accordance with the terms of the
Purchaser Prior Agreement Sections, as if such covenants and agreements were set
forth at length herein and made directly to the Company on and as of the date
hereof.
(B) In the event that any term contained in any of the Purchaser
Prior Agreement Sections is defined in the Prior Agreement (the "Purchaser
Incorporated Definitions") and is also defined in this Agreement, then for
purposes of this Section 3 (but not for purposes of any other provision of this
Agreement, except as otherwise specifically provided herein) such term will have
the meaning assigned to it in the Prior Agreement, except that for purposes of
this Agreement all references in the Purchaser Prior Agreement Sections and the
Purchaser Incorporated Definitions (i) to the "Shares" will be deemed to be
references to the Shares (as defined in this Agreement), (ii) to the
"Transaction Agreements" will be deemed to be references to the Transaction
Agreements (as defined in this Agreement), (iii) to the "Closing" will be deemed
to be references to the Closing (as defined in this Agreement) and (iv) to the
"Restated Certificate" and the "Bylaws" will be deemed to be references to the
Restated Certificate and the Bylaws (each as defined in this Agreement).
(C) In addition to the foregoing, each KPCB Purchaser represents and
warrants to the Company that KPCB VII Associates, a California limited
partnership (the "KPCB Partner"), is a general partner of each of the KPCB
Purchasers and that each of L. Xxxx Xxxxx and Xxxxxxx X. Xxxxxx III is a general
partner of the KPCB Partner.
4. CONDITIONS TO THE COMPANY'S OBLIGATIONS AT CLOSING. The obligation
--------------------------------------------------
of the Company to issue and sell Shares to the Purchasers at the Closing is
subject to the satisfaction, at or prior to the Closing, of each of the
following conditions:
(A) Correctness of Representations and Warranties(a).Correctness of
---------------------------------------------
Representations and Warranties . The representations and warranties of the
Purchasers contained in this Agreement (including the representations and
warranties incorporated from the Prior Agreement) shall, if specifically
qualified by materiality, be true and correct and, if not so qualified, be true
and correct in all material respects in each case as of the date of this
Agreement and as of the Closing Date with the same effect as if made
-7-
on and as of the Closing Date, and the Company shall have received a certificate
to such effect from each Purchaser, signed by its duly authorized officer.
(B) Performance of Agreements and Covenants The Purchasers shall
---------------------------------------
have performed and complied with all covenants, agreements, obligations and
conditions contained in this Agreement (including those incorporated from the
Prior Agreement) that are required to be performed or complied with by them on
or before the Closing Date, and the Company shall have received a certificate to
such effect from each Purchaser, signed by its duly authorized officer.
(C) No Material Litigation. There shall not be pending on the
-----------------------
Closing Date any lawsuit, claim, proceeding or other legal action by or before
any court or other regulatory, administrative or governmental authority that
seeks to restrain, restrict or prohibit or impose substantial penalties or
damages with respect to (or any other materially adverse relief or remedy in
connection with), and there shall not be in effect on the Closing Date any
injunction or other order of any governmental authority or arbitration panel
that restrains, restricts, prohibits or imposes substantial penalties or damages
with respect to (or any other materially adverse relief or remedy in connection
with), the consummation of any of the transactions contemplated hereby.
(D) Registration Rights Agreement. Each Purchaser shall have duly
------------------------------
executed and delivered the Amendment No. 1 to the Registration Rights Agreement,
substantially in the form of Exhibit A hereto (such amendment, the "Registration
Rights Amendment").
(E) Stockholders' Agreement(e).Stockholders' Agreement . Each
---------------------------------------------------
Purchaser shall have duly executed and delivered the Amendment No. 1 to the
Stockholders' Agreement, substantially in the form of Exhibit B hereto (such
amendment, the "Stockholders' Agreement Amendment").
(F) Proceedings and Documents. All corporate and other proceedings
-------------------------
in connection with the transactions contemplated by this Agreement to occur at
or prior to the Closing, and all documents and instruments incident to these
transactions, shall be reasonably satisfactory in substance to the Company and
its counsel.
5. CONDITIONS TO THE PURCHASERS' OBLIGATIONS AT CLOSING. The obligation
----------------------------------------------------
of TCI Sub, on the one hand, and the KPCB Purchasers, on the other hand, to
purchase Shares at the Closing is several and not joint and such obligation
-8-
as to TCI Sub, on the one hand, and the KPCB Purchasers, on the other hand, is
subject to the satisfaction, at or prior to the Closing, of each of the
following conditions, any of which may be waived by TCI Sub, on the one hand, or
the KPCB Purchasers, on the other hand:
(A) Correctness of Representations and Warranties. The
---------------------------------------------
representations and warranties of the Company set forth in this Agreement
(including the representations and warranties incorporated from the Prior
Agreement) shall, if specifically qualified by materiality, be true and correct
and, if not so qualified, be true and correct in all material respects in each
case as of the date of this Agreement and as of the Closing Date with the same
effect as if made on and as of the Closing Date, and such Purchaser shall have
received a certificate to such effect from the Company, signed by its duly
authorized officer.
(B) Performance of Agreements and Covenants. Each other party to this
---------------------------------------
Agreement shall have performed and complied with all agreements, covenants,
obligations and conditions contained in this Agreement (including those
incorporated from the Prior Agreement) that are required to be performed or
complied with by it on or before the Closing Date, and such Purchaser shall have
received a certificate to such effect from each such party, signed by its duly
authorized officer.
(C) Registration Rights Amendment and Stockholders Agreement
--------------------------------------------------------
Amendment. Each of the Registration Rights Amendment and the Stockholders'
---------
Agreement Amendment shall have been duly executed and delivered by each other
party thereto.
(D) Proceedings and Documents. All corporate and other proceedings
-------------------------
in connection with the transactions contemplated at the Closing hereby, and all
documents and instruments incident to these transactions, shall be reasonably
satisfactory in substance to such Purchaser and its counsel.
(E) Other. TCI Sub, on the one hand, and the KPCB Purchasers, on the
-----
other hand, shall be reasonably satisfied that all conditions to (i) the other
Purchaser's obligation to purchase and pay for the Shares to be purchased by
such Purchaser and (ii) the Company's obligation to sell the Shares to be sold
to the other Purchaser, shall have been satisfied or waived.
(F) Simultaneous Closing. Each Purchaser shall purchase and pay for
--------------------
the Shares to be purchased by such Purchaser simultaneously with the purchase of
and payment for the Shares to be purchased by the other Purchaser.
-9-
6. LEGENDS; NOTATIONS.The certificates evidencing the Shares and any
------------------
Conversion Shares (as defined in the Prior Agreement) shall be endorsed with the
legends set forth below:
(A) a conspicuously noted legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE
SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF UNLESS AND UNTIL REGISTERED UNDER THE ACT AND ANY
APPLICABLE STATE SECURITIES LAWS OR UNLESS, IN THE OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY, SUCH SALE, TRANSFER, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION IS EXEMPT FROM REGISTRATION OR IS OTHERWISE IN COMPLIANCE WITH THE
ACT AND SUCH LAWS";
(B) any legend required by any applicable state securities law; and
(C) a conspicuously noted legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THAT CERTAIN
STOCKHOLDERS' AGREEMENT, DATED AS OF AUGUST 29, 1995, AS AMENDED (THE
"STOCKHOLDERS' AGREEMENT"), AMONG THE COMPANY AND THE OTHER PARTIES THERETO
CONTAINING, AMONG OTHER THINGS, RESTRICTIONS ON THE SALE, TRANSFER OR OTHER
DISPOSITION OF SUCH SECURITIES. A COUNTERPART OF SUCH AGREEMENT HAS BEEN
DEPOSITED WITH THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS, AND THE COMPANY
SHALL FURNISH A COPY OF SUCH AGREEMENT TO THE RECORD HOLDER HEREOF WITHOUT
CHARGE UPON WRITTEN REQUEST."
The Company shall (or shall instruct its transfer agent to) make a notation
on the stock books regarding the restrictions on transfer of the Shares and the
Conversion Shares and will transfer (or will instruct its transfer agent to
transfer) securities on the books of the Company only to the extent not
inconsistent therewith. The legend will be removed by the Company (or, if
applicable, the
-10-
Company will instruct its transfer agent to remove the legend), upon delivery to
it of an opinion of counsel in form and substance reasonably satisfactory to the
Company that a registration statement under the Securities Act of 1933, as
amended, is at the time in effect with respect to the legend security or that
such security can be freely transferred without such registration statement
being in effect.
7. EXPENSES. Whether or not the transactions contemplated hereby are
--------
consummated, each of the Company and each Purchaser will bear its own expenses
incurred on its behalf with respect to this Agreement and the transactions
contemplated hereby.
8. SURVIVAL. The representations, warranties, covenants and agreements
--------
made herein, including the representations and warranties incorporated from the
Prior Agreement, will survive any investigation made by any Purchaser and will
survive the Closing.
9. SUCCESSORS AND ASSIGNS. Neither this Agreement nor any of the rights,
----------------------
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of each of the other parties hereto, provided, however, that any
-------- -------
Purchaser may assign this Agreement or any or all of its rights, interests, or
obligations hereunder to a wholly owned subsidiary of such party, but such
assignment shall not relieve such assigning party of its obligations hereunder
in the event such assignee fails to perform such obligations. Any assignment or
delegation in contravention of this Agreement shall be void and shall not
relieve the assigning or delegating party of any obligation hereunder. Subject
to the foregoing provisions of this Section 9, this Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns.
10. NOTICES, ETC. All notices and other communications required or
-------------
permitted to be given by any provision of this Agreement shall be in writing and
mailed (certified or registered mail, postage prepaid, return receipt requested)
or sent by hand or overnight courier, or by facsimile transmission (with
acknowledgment received), charges prepaid and addressed to the intended
recipient as follows, or to such other address or number as may be specified
from time to time by like notice to the parties:
(A) If to the Company:
-11-
At Home Corporation
000 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx III
with copies to:
Fenwick & Xxxx
Xxx Xxxx Xxxx Xxxxxx
Xxxxx 000
Xxxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
(B) If to the KPCB Purchasers:
Xxxxxxx Xxxxxxx Xxxxxxxx & Xxxxx
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: L. Xxxx Xxxxx
(C) If to TCI Sub:
TCI Internet Holdings, Inc.
0000 XXX Xxxxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
with copies to:
Xxxxx & Xxxxx, L.L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxxxx X. XxXxxxx, Esq.
Any party may from time to time specify a different address for notices by like
notice to the other parties. All notices and other communications given in
-12-
accordance with the provisions of this Agreement shall be deemed to have been
given and received (i) four (4) 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 facsimile (with acknowledgment received
and, in the case of a facsimile only, a copy of such notice is sent no later
than the next business day by a reliable overnight courier service, with
acknowledgment or receipt) or (iii) one (1) business day after the same are sent
by a reliable overnight courier service, with acknowledgment of receipt. The
names and addresses for notices set forth above shall be deemed to amend the
corresponding provisions of the Prior Agreement.
11. DELAYS OR OMISSIONS. Except as expressly provided herein, no delay
-------------------
or omission to exercise any right, power or remedy accruing to any holder of any
Shares, upon any breach or default of the Company under this Agreement, will
impair any such right, power or remedy of such holder nor will it be construed
to be a waiver of any such breach or default, or an acquiescence therein, or in
any similar breach or default thereafter occurring; nor will any waiver of any
single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of
any kind or character on the part of any holder of any breach or default under
this Agreement, or waiver on the part of any holder of any provisions or
conditions of this Agreement, must be in writing and will be effective only to
the extent specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to any holder, will be cumulative
and not alternative.
12. OBLIGATIONS SEVERAL, NOT JOINT. Each Purchaser shall be (i) obligated
------------------------------
hereunder only with respect to the purchase of the number and kind of Shares set
forth in Section 1(a) of this Agreement, and no Purchaser shall have any
liability with respect to the other Purchaser's obligations hereunder and (ii)
separately and independently entitled to rely on the representations and
warranties of the other Purchaser made to the Company in this Agreement and to
the benefit of all covenants and agreements of the other Purchaser made with the
Company herein.
13. COUNTERPARTS. This Agreement may be executed in any number of
------------
counterparts, each of which will be enforceable against the parties actually
executing such counterparts, and all of which together will constitute one
instrument.
14. SEVERABILITY. In the event that any provision of this Agreement
------------
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement will continue in full force and effect
without
-13-
said provision; provided, however, that no such severability will be effective
--------
if it materially changes the economic benefits of this Agreement to the Company
or to either Purchaser.
15. TITLES AND SUBTITLES. The titles and subtitles used in this Agreement
--------------------
are used for convenience only and are not considered in construing or
interpreting this Agreement.
16. ENTIRE AGREEMENT; AMENDMENT. This Agreement, the Prior Agreement and
---------------------------
each of the other agreements and instruments contemplated by this Agreement and
the Prior Agreement, constitute the full and entire understanding and agreement
between the parties with regard to the subject hereof and thereof, and supersede
all prior agreements and understandings, both written and oral, among the
parties with regard to the subject matter hereof and thereof, and no party will
be liable or bound to any other party in any manner by any warranties,
representations or covenants except as specifically set forth herein or therein.
Except as expressly provided herein, neither this Agreement nor any term hereof
may be amended, waived, discharged or terminated other than by a written
instrument signed by the party against whom enforcement of any such amendment,
waiver, discharge or termination is sought.
17. GOVERNING LAW. This Agreement will be governed by and construed in
-------------
all respects in accordance with the laws of the State of New York, without
regard to its principles of conflicts of laws.
-14-
If the foregoing is acceptable to you, please execute the copy of this
Letter Agreement in the space below, at which time this letter will constitute a
binding agreement among us.
Very truly yours,
AT HOME CORPORATION
/s/ Xxxxxxx Xxxxxxxx Xxxxxx, III
By: ----------------------------------
Name: Xxxxxxx Xxxxxxxx Xxxxxx, III
Title: President
Accepted and agreed as of the
date first above written:
TCI INTERNET HOLDINGS, INC. KLEINER, PERKINS, XXXXXXXX
& XXXXX VII
By:/s/ Xxxxx X. Xxxxxxx By: KPCB VII ASSOCIATES,
-----------------------------
Name: Xxxxx X. Xxxxxxx its General Partner
Title: President and Chief Executive
Officer By:/s/ L. Xxxx Xxxxx
-------------------------------
Name: L. Xxxx Xxxxx
Title: Partner
KPCB VII FOUNDERS FUND KPCB INFORMATION
SERVICES ZAIBATSU FUND II
By: KPCB VII ASSOCIATES, By: KPCB VII ASSOCIATES,
its General Partner its General Partner
By: /s/ L. Xxxx Xxxxx By: /s/ L. Xxxx Xxxxx
------------------------- -------------------------
Name: L. Xxxx Xxxxx Name: L. Xxxx Xxxxx
Title: Partner Title: Partner
-15-
