EXHIBIT 2.4
RIGHTS AGREEMENT
This RIGHTS AGREEMENT (this "AGREEMENT") is made and entered into as
of December 30, 1998 by and between At Home Corporation, a Delaware corporation
("ACQUIRER"), and each of the other undersigned persons and entities
(collectively, the "STOCKHOLDERS" and each individually, a "STOCKHOLDER").
WHEREAS, Acquirer, Narrative Communications Corp., a Delaware corporation
("TARGET") and Transitory Corporation, a Delaware corporation and wholly owned
subsidiary of Acquirer ("MERGER SUB"), have entered into an Agreement and Plan
of Merger (the "PLAN") dated as of December 17, 1998, pursuant to which Merger
Sub will merge with and into Target in a reverse triangular merger (the
"MERGER"), with Target to be the surviving corporation of the Merger;
WHEREAS, Section 2.5 of the Plan provides that Acquirer and the
Stockholders will, subject to the terms and conditions of this Agreement, enter
into this Agreement in order to grant the Stockholders certain Form S-3 shelf
registration rights to provide for resale of the Exchange Shares and to subject
the disposition of the Exchange Shares to certain restrictions;
WHEREAS, the Stockholders are entering into this Agreement as a material
inducement and consideration for Acquirer to enter into the Plan and to
consummate the transactions contemplated therein and as a material inducement
and condition precedent to consummation of the Merger.
NOW, THEREFORE, in consideration of the facts stated in the foregoing
recitals and the mutual promises hereinafter set forth, the parties hereto agree
as follows:
1. FORM S-3 SHELF REGISTRATION RIGHTS
1.1 Primary Obligations of Acquirer.
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(a) Certain Definitions.
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(i) "1933 ACT" shall mean the Securities Act of 1933, as
amended, or any successor law.
(ii) "1934 ACT" shall mean the Securities Exchange Act of
1934, as amended, or any successor law.
(iii) "BEST EFFORTS", "DAMAGES", "EFFECTIVE TIME", "EXCHANGE
SHARES" and all other capitalized terms used in this Agreement that are not
defined in this Agreement shall have the meanings given to such terms in the
Plan.
(iv) "FORM S-3" shall refer to a registration statement
filed under Form S-3 under the 1933 Act or any successor form of registration
statement under the 1933 Act subsequently adopted by the SEC which permits
incorporation of a substantial amount of information by reference to other
documents filed by Acquirer with the SEC.
(v) "REGISTRABLE SECURITIES" shall mean: (A) the Exchange
Shares that are issued to the Stockholders in the Merger pursuant to Section 2.2
of the Plan upon the surrender of their Target Certificates representing Target
capital stock outstanding at the Effective Time of the Merger, and (B) any
shares of Acquirer Series A Common Stock that may be issued as a dividend or
other distribution (including without limitation shares of Acquirer Series A
Common Stock issued in a split of Acquirer's outstanding Series A Common Stock)
with respect to, or in exchange for, or in replacement of, shares of Acquirer
Series A Common Stock described in clause "(A)" of this paragraph; provided,
however, that "Registrable Securities" shall not include any such shares that:
(1) are registered under the 1933 Act other than pursuant to a registration
statement filed pursuant to this Agreement; (2) are sold by a person in a
transaction in which rights under this Agreement with respect to such shares are
not assigned in accordance with the terms of this Agreement; (3) were previously
sold pursuant to a registration statement filed pursuant to this Agreement; and
(4) are sold pursuant to Rule 144 or otherwise sold to the public. Additionally,
"Registrable Securities" will also not include Exchange Shares issued to each
Key Employee (as identified in Schedule 1.1), except for those Exchange Shares
that are eligible for resale under clause "(i)" of Section 2.1(b).
(vi) "RIGHTS HOLDERS" shall mean a Stockholder who is the
original holder of any Registrable Securities or any assignee of record of any
Registrable Securities to whom rights under this Agreement have been duly
assigned in accordance with the provisions of this Agreement;
(vii) "RULE 144" shall mean Rule 144 promulgated under the
1933 Act, as such Rule may be amended from time to time, or any similar or
successor rule or regulation hereafter adopted by the SEC;
(viii) "RULE 415" shall mean Rule 415 promulgated under the
1933 Act, as such Rule may be amended from time to time, or any similar or
successor rule or regulation hereafter adopted by the SEC;
(ix) "SEC" shall mean the United States Securities and
Exchange Commission; and
(x) "SHELF REGISTRATION" shall refer to the shelf
registration statement on Form S-3 described in Section 1.1(b) and any
subsequent registration statement(s) filed pursuant to Section 1.1(d).
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(xi) "TRADING WINDOW" shall refer to those quarterly time
periods specified by Acquirer's xxxxxxx xxxxxxx policy, a copy of which has been
provided to Target prior to the date hereof, during which directors, officers,
employees and others whom Acquirer has deemed to be subject to the restrictions
of its xxxxxxx xxxxxxx policy may trade Acquirer securities. Each Trading Window
typically begins on the third trading day after Acquirer publicly reports its
operating results for the previous calendar quarter, and ends on the last day of
the second month of each respective calendar quarter (February, May, August and
November).
(b) Filing. As promptly as reasonably practicable after the
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Effective Time of the Merger, and subject to Section 1.3 and the other
provisions of this Agreement, Acquirer shall prepare and file with the SEC a
shelf registration statement on Form S-3 for an offering to be made on a
continuous basis pursuant to Rule 415 covering all of the then outstanding
Registrable Securities. Acquirer shall use its Best Efforts to have such Shelf
Registration declared effective on or before the first day of the first Trading
Window of 1999, which is expected to occur during the last week of January.
(c) Registration Period. Subject to the limitations in Section
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1.3 and elsewhere in this Agreement, Acquirer shall use its Best Efforts to keep
the Shelf Registration continuously effective under the 1933 Act for a period of
time commencing on the date the Shelf Registration is declared effective under
the 1933 Act and ending on the first anniversary of the Effective Time of the
Merger; provided, however, that for each day that the Shelf Registration is not
effective during such period, such period shall be extended for one day (the
"REGISTRATION PERIOD"). Acquirer shall have no duty to keep the Shelf
Registration effective after the expiration of the Registration Period.
(d) Subsequent Registration. If a Shelf Registration becomes
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effective under the 1933 Act, but subsequently ceases to be effective for any
reason at any time during the Registration Period, then Acquirer shall use its
Best Efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall, within thirty (30) days, file an
amendment to the Shelf Registration seeking withdrawal of the order suspending
the effectiveness thereof or file an additional shelf registration statement
pursuant to Rule 415 covering all of the then outstanding Registrable
Securities.
(e) Supplements and Amendments. Subject to the limitations in
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Section 1.3 and elsewhere in this Agreement, during the Registration Period
Acquirer shall supplement and amend the Shelf Registration as required by the
1933 Act, the rules and regulations promulgated thereunder or the rules,
regulations or instructions applicable to the registration form used by Acquirer
for the Shelf Registration.
(f) Additional Securities Law Obligations. When Acquirer effects
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the registration of any Registrable Securities under the terms of this
Agreement, Acquirer will also, as promptly as reasonably possible:
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(i) furnish to the Rights Holders a number of copies of
the prospectus for the Shelf Registration in conformity with the requirements of
the 1933 Act in order to facilitate the disposition of the Registrable
Securities owned by them;
(ii) use its Best Efforts to register and qualify the
securities covered by the Shelf Registration under the other securities or blue
sky laws of the jurisdictions that are reasonably requested by the Rights
Holders; provided, however, that Acquirer will not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any state or jurisdiction unless
Acquirer is already so qualified or subject to service of process in that
jurisdiction; and
(iii) promptly notify each Rights Holder of Registrable
Securities covered by the Shelf Registration, at any time during a Trading
Window when a prospectus relating thereto is required to be delivered under the
1933 Act, of the happening of any event known to Acquirer's executive officers
as a result of which the prospectus included in the Shelf Registration, as then
in effect, is known by Acquirer's executive officers to include an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing, and, subject to the provisions of this
Agreement, at the request of any Rights Holder, prepare and furnish to each
Rights Holder of Registrable Securities then outstanding a reasonable number of
copies of a supplement to or an amendment of the prospectus as may be necessary
to correct the untrue statement or omission; provided, however, that each Rights
Holder agrees not to trade from the time that it receives such notice until such
Rights Holder receives a supplement to or an amendment to the prospectus, such
period not to exceed five trading days in any one instance; and
(iv) upon the request of any Rights Holder, promptly
provide the name, address and other contact information regarding Acquirer's
transfer agent for the Registrable Securities and the CUSIP number for the
Registrable Securities.
(g) Expenses. Acquirer shall pay all expenses incurred in
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connection with the Shelf Registration (excluding brokers' discounts and
commissions), including without limitation all filing, registration and
qualification, printers', legal and accounting fees.
1.2 Additional Terms and Conditions.
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(a) Manner of Sales. Any sale of Registrable Securities pursuant
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to a Shelf Registration may only be made in accordance with the method(s) of
distribution of such Registrable Securities that are described in the "Plan of
Distribution" or similar section contained in the prospectus for the Shelf
Registration, which methods shall be customary for transactions of this type.
(b) Timing of Sales. The Rights Holders agree to sell or otherwise
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transfer Registrable Securities pursuant to a Shelf Registration only during a
Trading Window.
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(c) Stockholder's Questionnaire. As a condition precedent to the
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obligations of Acquirer to take any action pursuant to this Agreement as to a
Rights Holder, such selling Rights Holder will first deliver to Acquirer the
Stockholder's Questionnaire attached as Exhibit B, which shall include, among
other things, such information regarding such Rights Holder, the Registrable
Securities held by such Rights Holder, and the intended method of disposition
and plan of distribution of such Registrable Securities as shall be required to
timely effect the registration of such Rights Holder's Registrable Securities.
(d) Delay of Registration. No Rights Holder will have any right to
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obtain or seek an injunction restraining or otherwise delaying any registration
that is the subject of this Agreement as the result of any controversy that
might arise with respect to the interpretation or implementation of this
Agreement.
(e) Acknowledgment of Other Registration Rights. The Rights
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Holders been informed by Acquirer that other stockholders of Acquirer currently
hold certain Form S-3 and other registration rights that may enable such other
stockholders to sell shares of Acquirer during one or more Trading Windows or at
other times (thus potentially adversely affecting the receptivity of the market
to the sale of the Registrable Securities pursuant to a registration effected
pursuant to this Agreement). If after the date of this Agreement and prior to
expiration of the Registration Period, Acquirer enters into an agreement
pursuant to which Acquirer grants registration rights to a third party or
parties that may be exercised during the Registration Period, then, within
thirty (30) days after it enters into such agreement, Acquirer will notify the
Rights Holders of the grant of such registration rights and their general terms.
(f) Private Offering. Notwithstanding the terms and conditions of
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this Article 1, a Rights Holder may otherwise sell Registrable Securities in a
bona fide private offering if the selling Rights Holder provides Acquirer with a
written opinion of counsel, reasonably satisfactory to counsel to Acquirer, that
the proposed offer and sale is an exempt transaction under the 1933 Act and
applicable state securities laws, complies with all requirements for such
exemption(s) and is not made with use of the prospectus for the Shelf
Registration.
(g) Compliance with Securities Laws. Each Stockholder will be
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solely responsible for compliance with all federal and state securities law
restrictions (including without limitation the volume and manner of sale
restrictions imposed by Rule 144 of the Securities Act), if any, after the
expiration of the Registration Period with regards to any sale, transfer or
other disposition of Acquirer Series A Common Stock by such Stockholder after
the expiration of the Registration Period or during any period other than during
a Trading Window.
1.3 Limitations on Acquirer's Obligations.
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(a) Basic Limitations. Notwithstanding Section 1.1, Acquirer will
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not be obligated to effect any registration, qualification or compliance of
Registrable Securities pursuant to Section 1.1, and the Rights Holders shall not
be entitled to sell Registrable Securities pursuant to a Shelf Registration
filed under Section 1.1: (i) if Form S-3 is not then available for
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such offering by the Rights Holders; (ii) if Acquirer is acquired and its Series
A Common Stock ceases to be publicly traded; (iii) in any particular
jurisdiction in which Acquirer would be required to qualify to do business or to
execute a general consent to service of process in effecting such registration,
qualification or compliance, unless Acquirer is already subject to service of
process in that jurisdiction; (iv) if the SEC refuses to declare the Shelf
Registration effective due to the participation of any particular Rights Holder
in the Shelf Registration (unless the Rights Holder withdraws all of his or her
Registrable Securities from Shelf Registration); or (v) if the manner in which
any Registrable Securities are disposed of pursuant to the Shelf Registration is
not included within the "Plan of Distribution" set forth in the prospectus for
the Shelf Registration.
(b) Trading Windows. Notwithstanding Section 1.1, Acquirer shall
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not be obligated to keep the registration statement for the Shelf Registration
current during any period other than during a Trading Window.
(c) Shares Otherwise Eligible for Resale. Notwithstanding Section
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1.1, Acquirer shall not be obligated to effect or continue to keep effective any
such registration, registration statement, qualification or compliance with
respect to the Registrable Securities held by any particular Rights Holder after
expiration of the Registration Period.
(d) Termination of Acquirer's Obligations. Except for those
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obligations set forth in Section 1.4, Acquirer's obligations pursuant to Article
1 of this Agreement will terminate upon the earlier to occur of: (i) the
expiration of the Registration Period, or (ii) the date when all Registrable
Securities have been registered and sold pursuant to a registration effected
pursuant to this Agreement and/or have been transferred in transactions in which
registration rights hereunder have not been assigned in accordance with this
Agreement.
1.4 Indemnification.
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(a) By Acquirer. To the extent permitted by law, Acquirer will
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indemnify, defend and hold harmless each Rights Holder against any Damages
(severally but not jointly) to which such Rights Holder may become subject under
the 1933 Act, the 1934 Act or other U.S. federal or state law, insofar as such
Damages arise out of or are based upon any of the following statements,
omissions or violations (collectively, a "VIOLATION"):
(i) any untrue statement or alleged untrue statement of a
material fact contained in a Shelf Registration filed by Acquirer pursuant to
this Agreement pursuant to which Registrable Securities are sold, including any
preliminary prospectus, final prospectus or any amendments or supplements
thereto;
(ii) the omission or alleged omission to state in a Shelf
Registration, including a preliminary prospectus, final prospectus or any
amendments or supplements thereto, a material fact required to be stated
therein, or necessary to make the statements therein not misleading; or
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(iii) any violation or alleged violation by Acquirer of the
1933 Act, the 1934 Act, any U.S. federal or state securities law or any rule or
regulation promulgated thereunder in connection with the offering of Registrable
Securities covered a Shelf Registration; provided however, that the indemnity
agreement contained in this Section 1.4(a) shall not apply to amounts paid in
settlement of any Damages if the settlement is effected without the written
consent of Acquirer, which consent shall not be unreasonably withheld, nor shall
Acquirer be liable in any such case for any Damages to the extent that they
arises out of or are based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with the Shelf Registration by such Rights Holder.
(b) By Selling Rights Holders. Subject to the terms and
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limitations of Article 11 of the Plan, each selling Rights Holder will indemnify
and hold harmless Acquirer, each of its directors, each of its officers who have
signed the registration statement, each Person, if any, who controls Acquirer
within the meaning of the 1933 Act, any underwriter and any other Rights Holder
selling securities under a Shelf Registration (an "INDEMNIFIED PERSON"): (i)
against any Damages (severally but not jointly) to which an indemnified person
may become subject under the 1933 Act, the 1934 Act or other federal or state
law, insofar as such arise out of or are based upon any Violation, in each case
to the extent that such Violation occurs in reliance upon and in conformity with
written information furnished by such Rights Holder expressly for use in
connection with the Shelf Registration, and (ii) for any reasonable attorneys'
fees and other expenses reasonably incurred by an indemnified person in
connection with investigating or defending any such Damages, as incurred;
provided, however, that the amount payable by a Rights Holder pursuant to this
Section 1.4(b) shall not exceed the amount of proceeds, net of commissions and
selling expenses, received by such Rights Holder pursuant to the sale of
Registrable Securities. Notwithstanding the forgoing, the forgoing indemnity
obligations will not apply to amounts paid in settlement of any such Damages if
the settlement is effected without the consent of the indemnifying Rights
Holder, which consent shall not be unreasonably withheld.
(c) Notice Requirement. If a Person eligible for indemnification
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under this Section 1.4 receives notice that an action (including any
governmental action) has been commenced against him or her, and if such Person
seeks indemnification under this section, then promptly after receipt of this
notice the Person must deliver to the indemnifying party a written notice that
an action has been commenced. The failure of such Person to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such action, if prejudicial to the ability of the indemnifying party to
defend such action, shall relieve such indemnifying party of any liability to
such Person under this Section 1.4, but shall not limit any other liability of
such indemnifying party.
(d) Assuming the Defense.
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(i) Acquirer as Indemnifying Party. If the indemnifying party
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is Acquirer, Acquirer shall have the right and obligation to control the defense
of the action alleging a Violation, provided, however, that the indemnified
party or parties will have the right to participate at its own expense in the
defense of such action. If Acquirer fails to defend the
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action, or in the event of a conflict of interest between the indemnifying party
and the indemnified party, Acquirer will indemnify the selling Rights Holders
for any reasonable attorneys' fees and other expenses reasonably incurred by
them in connection with investigating or defending such action.
(ii) Selling Rights Holder as Indemnifying Party. The
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Indemnifying party shall have the right, at its option, to assume and control
the defense of any action with respect to which a person is entitled in Section
1.4(b) to indemnification.
(e) Defect Eliminated in Final Prospectus. The availability of
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the provisions of this Section 1.4 are subject to the condition that, insofar as
they relate to any Violation related to a preliminary prospectus but eliminated
or remedied in the amended or supplemented prospectus which is effective at the
time the sale of Registrable Securities under such registration statement occurs
(the "AMENDED PROSPECTUS"), Section 1.4 shall not inure to the benefit of any
Person if a copy of the Amended Prospectus was furnished to such Person and was
not furnished to the claimant asserting the Damages giving rise to indemnity
claims under this Section 1.4, at or prior to the time such action is required
by the 1933 Act.
(f) Survival. The obligations of Acquirer and the Rights Holders
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under this Section 1.4 shall survive the completion of any offering of
Registrable Securities in a registration statement pursuant to this Agreement
and otherwise.
2. RESTRICTIONS ON RESALE
2.1 Restrictions on Key Employees.
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(a) Except for Exchange Shares eligible for resale pursuant to
clause "(i)" of Section 2.1(b), the Exchange Shares issued to each Stockholder
designated as a "KEY EMPLOYEE" in Schedule 1.1 will not constitute Registrable
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Shares for the purposes of this Agreement. Accordingly, except for Exchange
Shares eligible for resale pursuant to clause "(i)" of Section 2.1(b), the Key
Employees will not have any of the rights or obligations set forth in Article 1
of this Agreement.
(b) Each Key Employee will not sell, transfer or otherwise dispose
of the Exchange Shares that each receives in exchange for outstanding Target
capital stock pursuant to the Merger until the date that is three years after
the Closing Date; provided, however, that each Key Employee may sell, transfer
or otherwise dispose of: (i) up to twenty-five percent (25%) of the total of his
or her Exchange Shares and shares purchasable upon the exercise of Exchange
Options that are vested as of the Effective Time (collectively, the "RESTRICTED
SHARES") from the Effective Time until the date that is one year after the
Effective Time, subject to the conditions and limitations of Article 1, (ii) up
to another twenty-five percent (25%) of his or her Restricted Shares after the
date that is one year after the Effective Time if such Key Employee is still
employed by Acquirer or Target one year after the Effective Time; and (iii) the
remaining fifty percent (50%) of his or her Restricted Shares after the date
that is two years after the Effective Time if such Key Employee is still
employed by Acquirer or Target two years after the
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Effective Time. If a Key Employee's employment with Target or Acquirer
terminates, then the restrictions set forth in this paragraph shall no longer
apply to that Key Employee as of the date of such termination if either: (1) the
Key Employee was terminated without Cause by Acquirer or Target; (2) the Key
Employee's responsibilities were substantially reduced and the Key Employee was
not offered another position with a span of responsibilities similar to his or
her current responsibilities; or (3) the Key Employee was to be relocated by
Acquirer or Target to a location more than one hundred (100) miles from such Key
Employee's then existing location and the Key Employee declined to relocate.
2.2 Restrictions on Holders of Narrative Preferred Stock. Each
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holder of Target Preferred Stock as of the date of the Plan will not sell,
transfer or otherwise dispose of more than fifty percent (50%) of the Exchange
Shares that each receives in exchange for his or her Target Preferred Stock
before February 15, 1999. Each such holder may sell, transfer or otherwise
dispose of the remaining Exchange Shares received in exchange for his or her
Target Preferred Stock at any time after February 15, 1999, subject to the
conditions and limitations of Article 1. The restrictions in this paragraph
will not apply to any Key Employees; instead, such Key Employees will be bound
by the restrictions in Section 2.1.
3. ASSIGNMENT
Notwithstanding anything in this Agreement to the contrary, a Rights
Holder may only assign his or her rights under this Agreement with Acquirer's
express prior written consent, which may be withheld at Acquirer's sole
discretion; provided, however, that the rights of a Rights Holder under this
Agreement may be assigned without Acquirer's express prior written consent: (a)
to a Permitted Assignee (as defined below); or (b) if applicable, by will or by
the laws of intestacy, descent or distribution, provided that the assignee
agrees in writing to be bound by all the obligations of the Rights Holders under
this Agreement. Any attempt to assign any rights of a Rights Holder under this
Agreement without Acquirer's express prior written consent when required by this
paragraph shall be null and void and without effect. Subject to the foregoing
restrictions, all rights, covenants and agreements in this Agreement by or on
behalf of the parties hereto will bind and inure to the benefit of the
respective permitted successors and assigns of the parties hereto. Each of the
following parties are "PERMITTED ASSIGNEES" for purposes of this Article 3: (a)
a trust whose beneficiaries consist solely of a Rights Holder and/or such Rights
Holder's immediate family; (b) the personal representative (including an
executor of a Rights Holder's will), custodian or conservator of a Rights
Holder, in the case of the death, bankruptcy or adjudication of incompetency of
that Rights Holder; (c) immediate family members of a Rights Holder; (d) the
limited partners of a limited partnerships; or (e) the members of a limited
liability company.
4. GENERAL PROVISIONS
4.1 Entire Agreement. This Agreement and the relevant provisions of
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the Plan constitute the entire agreement of the parties to this Agreement with
respect to the subject matter hereof, and this Agreement supersedes all prior
and contemporaneous agreements or
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understandings, inducements or conditions, express or implied, written or oral,
between the parties with respect to the subject matter hereof. The express terms
hereof control and supersede any course of performance or usage of the trade
inconsistent with any of the terms hereof.
4.2 No Third Party Beneficiaries. No provisions of this Agreement
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are intended, nor will be interpreted, to confer upon any person or entity,
other than the parties hereto and their permitted successors and assigns, any
third party beneficiary rights or remedies or other rights or remedies under or
by reason of this Agreement. Except as provided in this Agreement, all
provisions hereof will be personal solely between the parties hereto.
4.3 Construction of Agreement. This Agreement has been negotiated by
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the respective parties hereto and their attorneys and have been reviewed by each
party hereto. Accordingly, no ambiguity in the language of this Agreement will
be construed for or against either party.
4.4 Section Headings. A reference to a section, article or exhibit
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will mean a section in, article in or exhibit to this Agreement unless otherwise
explicitly set forth. The titles and headings herein are for reference purposes
only and will not in any manner limit the construction of this Agreement, which
will be considered as a whole.
4.5 Amendment, Waivers. Any term or provision of this Agreement may
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be amended and the observance thereof may be waived only with the written
consent of Acquirer and Rights Holders who own a majority of all the Registrable
Securities then outstanding. No waiver by any party of any such condition or
breach, in any one instance, shall be deemed to be a further or continuing
waiver of any such condition or breach or a waiver of any other condition or
breach of any other provision contained herein. The failure of any party to
enforce any of the provisions hereof will not be construed to be a waiver of the
right of such party thereafter to enforce such provisions. Any amendment or
waiver effected in accordance with this paragraph shall be binding upon each
Rights Holder, each permitted successor or assignee of each Rights Holder and of
Acquirer.
4.6 Severability. If any provision of this Agreement or its
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application will for any reason and to any extent be invalid or unenforceable,
the remainder of this Agreement and application of such provision to other
persons or circumstances will be interpreted so as to effect the intent of the
parties hereto. The parties will replace such void or unenforceable provision
of this Agreement with a valid and enforceable provision that will achieve, to
the extent possible, the economic, business and other purposes of the void or
unenforceable provision.
4.7 Governing Law. The validity of this Agreement the construction
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of its terms, and the interpretation and enforcement of the rights and duties of
the parties of this Agreement will be exclusively governed by and construed in
accordance with the internal laws of the State of Delaware, as applied to
agreements entered into solely between residents of and to be performed entirely
in the State of Delaware, without reference to that body of law relating to
conflicts of law or choice of law.
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4.8 Notices. All notices, instructions and other communications
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required or permitted to be given under this Agreement or necessary or
convenient in connection herewith must be in writing and shall be deemed given:
(a) when personally served or when delivered by telex or facsimile; (b) one
business day after deposit with an overnight courier service as shown by the
records of such delivery service; (c) on the business day of transmission if
such notice is sent by facsimile and the sender receives electronic confirmation
of receipt by the recipient; or (d) on the earlier of actual receipt or the
third business day following the date on which the notice is deposited in the
United States mail, first class certified or registered mail, postage prepaid,
addressed as follows:
If to Acquirer: At Home Corporation
Attention: General Counsel
000 Xxxxxxxx Xxxxxx
Xxxxxxx Xxxx, XX 00000
Fax Number: (000) 000-0000
with a copy to: Fenwick & West LLP
Attention: Xxxxxx Xxxxxxxx, Esq.
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Fax Number: (000) 000-0000
If to a Stockholder: Stockholder's name
Stockholder's street address (as set forth on Exhibit A)
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City, State
with a copy to: Ropes & Xxxx
Attention: Xxxx Xxxxxxxxx, Esq.
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Fax Number: (000) 000-0000
or to such other address as a party designates in a writing delivered to each of
the other parties hereto in accordance with this paragraph. A party will be
deemed to have "notified" another party hereto of a matter when notice of such
matter is provided pursuant to this paragraph.
4.9 Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed an original as regards any party
whose signature appears thereon, but all of which together shall constitute one
and the same instrument. This Agreement will become binding when two or more
counterparts hereof, individually or taken together, bear the signatures of each
of the parties reflected hereon as signatories.
4.10 Effectiveness of Agreement. Regardless of when signed and
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notwithstanding provisions in this Agreement to the contrary, this Agreement
will not become effective or binding unless and until the Effective Time of the
Merger.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date of this Agreement.
AT HOME CORPORATION
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President of @Media
Sales and Marketing
STOCKHOLDERS
/s/ Xxxxx Xxxxx /s/ Xxxxx Xxxxxx
--------------------------------- ---------------------------------
Xxxxx Xxxxx Xxxxx Xxxxxx
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxx Xxxxx
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Xxxxxxx Xxxxxx Xxxxxx Xxxxx
/s/ Xxxxxx Xxxxxxx /s/ Wei-Xxxx Xxxx
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Xxxxxx Xxxxxxx Wei-Xxxx Xxxx
[SIGNATURE PAGE #1 TO RIGHTS AGREEMENT]
-12-
/s/ Xxx Xxxxxxxxxx /s/ Xxxxx Xxxxxx
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Xxx Xxxxxxxxxx Xxxxx Xxxxxx
/s/ Xxxx Xxxxx /s/ Xxxx Xxxxxx
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Xxxx Xxxxx Xxxx Xxxxxx
/s/ Xxxxx Xxxxxxxxxx /s/ Xxx X'Xxxxx
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Xxxxx Xxxxxxxxxx Xxx X'Xxxxx
/s/ Xxxx Xxxxxxx /s/ Xxxx Xxxxxxxxxx
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Xxxx Xxxxxxx Xxxx Xxxxxxxxxx
/s/ Xxxxx Xxxxxxxxx /s/ Xxxxxxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx
/s/ Xxxx Xxxxxxxx /s/ Xxxxx Xxxxx
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Xxxx Xxxxxxxx Xxxxx Xxxxx
/s/ Xxxxx Xxxxxx /s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxx Xxxxx Xxxxxxxx
[SIGNATURE PAGE #2 TO RIGHTS AGREEMENT]
-13-
XXXXXXX X. XXXXXXXXX PARTNERS
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: General Partner
CARLYLE VENTURE PARTNERS, L.P.
By: Its General Partner, TCG Ventures, Ltd.
By: /s/ J. Xxxxxxxx Xxxxx
---------------------------------
Name: J. Xxxxxxxx Xxxxx
Title: Attorney-in-fact
CARLYLE U.S. VENTURE PARTNERS, L.P.
By: Its General Partner, TCG Ventures, L.L.C.
By: /s/ J. Xxxxxxxx Xxxxx
---------------------------------
Name: J. Xxxxxxxx Xxxxx
Title: Managing Director
CARLYLE VENTURE COINVESTMENT, L.L.C.
By: Its General Partner, TCG Ventures, L.L.C.
By: /s/ J. Xxxxxxxx Xxxxx
---------------------------------
Name: J. Xxxxxxxx Xxxxx
Title: Managing Director
[SIGNATURE PAGE #3 TO RIGHTS AGREEMENT]
-14-
GREYLOCK EQUITY GP LIMITED PARTNERSHIP
By: /s/ Xxxxx X. XxXxxxx
---------------------------------
Name: Xxxxx X. XxXxxxx
Title: General Partner
ACCEL V L.P.
By: /s/ Xxxxxx Sednaoui
---------------------------------
Name: Xxxxxx Sednaoui
Title: Managing Member
ACCEL INTERNET/STRATEGIC
TECHNOLOGY FUND L.P.
By: /s/ Xxxxxx Sednaoui
---------------------------------
Name: Xxxxxx Sednaoui
Title: Managing Member
ACCEL KEIRETSU V L.P.
By: /s/ Xxxxxx Sednaoui
---------------------------------
Name: Xxxxxx Sednaoui
Title: Managing Member
ACCEL INVESTORS '96 L.P.
By: /s/ Xxxxxx Sednaoui
---------------------------------
Name: Xxxxxx Sednaoui
Title: General Partner
[SIGNATURE PAGE #4 TO RIGHTS AGREEMENT]
/s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx
/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
[SIGNATURE PAGE #5 TO RIGHTS AGREEMENT]
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