<PAGE> 1
As filed with the Securities and Exchange Commission on June 3, 1999
Registration No. 333-______
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AT HOME CORPORATION
(Exact name of the Registrant as specified in its charter)
DELAWARE 77-0408542
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
425 BROADWAY STREET
REDWOOD CITY, CALIFORNIA 94063
(Address of principal executive offices, including zip code)
AT HOME CORPORATION 1997 EQUITY INCENTIVE PLAN
EXCITE, INC. 1995 EQUITY INCENTIVE PLAN
EXCITE, INC. 1996 EQUITY INCENTIVE PLAN
EXCITE, INC. 1996 DIRECTORS STOCK OPTION PLAN
EXCITE, INC. 1996 EMPLOYEE STOCK PURCHASE PLAN
NETBOT, INC. 1996 STOCK OPTION PLAN
MATCHLOGIC, INC. 1997 EQUITY COMPENSATION PLAN
THROW, INC. 1996 OPTION PLAN
CLASSIFIEDS2000, INC. 1996 STOCK OPTION PLAN
(Full titles of the plans)
<TABLE>
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KENNETH A. GOLDMAN COPY TO:
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER THOMAS J. HALL, ESQ.
AT HOME CORPORATION FENWICK & WEST LLP
425 BROADWAY STREET TWO PALO ALTO SQUARE
REDWOOD CITY, CALIFORNIA 94063 PALO ALTO, CALIFORNIA 94306
(650) 569-5000 (650) 494-0600
- ------------------------------------------ --------------------------------------
(Name, address and telephone number, (Counsel to the Registrant)
including area code, of agent for service)
</TABLE>
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------
PROPOSED
AMOUNT MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE OFFERING PRICE AGGREGATE REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE FEE
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Series A common stock, 8,925,000 (1) $112.65625 (2) $1,005,457,031 (2) $279,518
$.01 par value
Series A common stock, 12,857,452 (3) $ 36.2393 (4) $ 465,945,061 (5) $129,533 (5)
$.01 par value
- ----------------------------------------------------------------------------------------------------------------------
TOTAL 21,782,452 $1,471,402,092 $409,051
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</TABLE>
The share and price per share numbers in this registration statement do not
reflect a two-for-one split of the Registrant's common stock which is
scheduled to occur on June 16, 1999.
(1) Represents 8,675,000 additional shares reserved for issuance upon the
exercise of stock options that may be granted under the Registrant's 1997
Equity Incentive Plan and 250,000 shares available for grant upon the
exercise of purchase rights currently outstanding under the Excite, Inc.
1996 Employee Stock Purchase Plan.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee in accordance with Rule 457(c) of the Securities Act of
1933, as amended (the "Securities Act"), based on the average of the high
and low prices of the Registrant's Series A common stock as reported by the
Nasdaq National Market on June 2, 1999.
(3) Represents the aggregate of the following amounts, each as of May 28, 1999:
- 544,891 shares subject to options outstanding under the Excite, Inc.
1995 Equity Incentive Plan
- 11,719,960 shares subject to options outstanding under the Excite, Inc.
1996 Equity Incentive Plan
- 31,260 shares subject to options outstanding under the Excite, Inc. 1996
Directors Stock Option Plan
- 36,414 shares subject to options outstanding under the Netbot, Inc. 1996
Stock Option Plan
- 391,075 shares subject to options outstanding under the MatchLogic, Inc.
1997 Equity Compensation Plan
- 114,290 shares subject to options outstanding under the Throw, Inc. 1996
Option Plan and
- 19,562 shares subject to options outstanding under the Classifieds2000,
Inc. 1996 Stock Option Plan.
(4) Weighted average per share exercise price for such outstanding options.
(5) Calculated based on the weighted average per share exercise price, pursuant
to Rule 457(h)(1) of the Securities Act.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
For the purposes of this registration statement, the terms "we," "our" and
"us" refer to At Home Corporation, a Delaware corporation. The share numbers in
this registration statement do not reflect a two-for-one split of our common
stock which is scheduled to occur on June 16, 1999.
INCORPORATION OF PREVIOUS REGISTRATION STATEMENTS.
Pursuant to General Instruction E of Form S-8, we are filing this
registration statement with the Securities and Exchange Commission (the
"Commission") to include an additional 8,675,000 shares under the At Home
Corporation 1997 Equity Incentive Plan. Pursuant to this Instruction E, the
contents of our Form S-8 registration statement Nos. 333-31115, 333-38833 and
333-60037 are hereby incorporated by reference. We are also filing this
registration statement with the Commission in connection with our assumption of
(1) outstanding options to purchase common stock of Excite, Inc., Netbot, Inc.,
MatchLogic, Inc., Throw, Inc. and Classifieds2000, Inc., and the conversion of
these options into options to purchase our Series A common stock, in connection
with our acquisition of Excite, Inc. and (2) shares available for grant under
the Excite, Inc. 1996 Employee Stock Purchase Plan.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission are incorporated into
this registration statement by reference:
(a) Our annual report on Form 10-K for the fiscal year ended December
31, 1998, as amended on March 31, 1999 and on April 27, 1999;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
since December 31, 1998, including: (1) our quarterly reports on
Form 10-Q for the fiscal quarters ended March 31, June 30 and
September 30, 1998, each as amended on February 8, 1999; (2) our
current report on Form 8-K filed on January 14, 1999, as amended on
February 19, 1999; (3) our two current reports on Form 8-K filed on
January 21, 1999; (4) our current report on Form 8-K filed on
February 19, 1999; and (5) our current report on Form 8-K filed on
April 8, 1999 and
(c) The description of the Registrant's Series A common stock contained
in the Registrant's registration statement on Form 8-A filed under
Section 12(g) of the Exchange Act, including any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by us pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities registered hereby have been sold
or which deregisters all securities then remaining unsold, shall be deemed
incorporated into this registration statement by reference and to be a part
hereof from the date of the filing of such documents.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS AND LIMITATION OF LIABILITY.
The following documents are incorporated by reference:
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DOCUMENT
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1 The Registrant's Fifth Amended and Restated Certificate of
Incorporation, as filed with the Delaware Secretary of State on
May 28, 1999 (see Exhibit 4.01).
2 Form of Indemnification Agreement entered into by us with each of
our directors and executive officers (incorporated by reference to
Exhibit 10.09 to our registration statement on Form S-1, File No.
333-27323, declared effective July 11, 1997).
</TABLE>
<PAGE> 4
Under the following agreements related to our acquisition of Narrative
Communications Corp., third parties have agreed to indemnify us and our
directors, officers and employees against some liabilities, including losses by
us and our directors, officers and employees arising out of misrepresentations
or breaches by Narrative regarding our business, and some liabilities of us and
our directors, officers and employees arising under the Securities Act, the
Exchange Act or other federal or state laws:
DOCUMENT
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1 Agreement and Plan of Merger among us, Transitory Corporation (our
subsidiary) and Narrative dated December 17, 1998 (incorporated by
reference to Exhibit 2.1 to our current report on Form 8-K filed
with the Commission on January 14, 1999).
2 Escrow Agreement dated December 30, 1998 among us, Charles M.
Hazard, Jr. as representative of the Narrative stockholders and
State Street Bank and Trust Company of California, N.A., as escrow
agent (incorporated by reference to Exhibit 2.3 to our current
report on Form 8-K filed with the Commission on January 14, 1999).
3 Rights Agreement dated December 30, 1998 between us and each of
the Narrative stockholders (incorporated by reference to Exhibit
2.4 to our current report on Form 8-K filed with the Commission on
January 14, 1999).
4 Letter Agreement dated February 9, 1999 between us and Carlyle
Venture Coinvestment LLC (incorporated by reference to Exhibit
99.02 to our registration statement on Form S-3 filed with the
Commission on February 19, 1999).
5 Letter Agreement dated February 9, 1999 between us and Greylock
Equity Limited Partnership (incorporated by reference to Exhibit
99.03 to our registration statement on Form S-3 filed with the
Commission on February 19, 1999).
</TABLE>
ITEM 8. EXHIBITS.
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<CAPTION>
EXHIBIT EXHIBIT
NUMBER TITLE
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<S> <C>
4.01 The Registrant's Fifth Amended and Restated Certificate of
Incorporation, as filed with the Delaware Secretary of State on May
28, 1999.
4.02* The Registrant's Second Amended and Restated Bylaws, effective July
16, 1997 (incorporated by reference to Exhibit 3.05 of our
registration statement on Form S-1 declared effective by the
Commission on July 11, 1997 (File No. 333-27323)).
4.03* The Registrant's 1997 Equity Incentive Plan, as amended
(incorporated by reference to Exhibit 4.07 to our registration
statement on Form S-8 filed with the Commission on July 28, 1998
(File No. 333-60037)).
4.04* The Registrant's 1996 Incentive Stock Option Plan (incorporated by
reference to Exhibit 10.10 of our registration statement on Form S-1
declared effective by the Commission on July 11, 1997 (File No.
333-27323)).
4.05* The Registrant's 1996 Incentive Stock Option Plan No. 2
(incorporated by reference to Exhibit 10.11 of our registration
statement on Form S-1 declared effective by the Commission on July
11, 1997 (File No. 333-27323)).
4.06* Excite, Inc. 1995 Equity Incentive Plan (incorporated by reference
to Excite's Registration Statement on Form SB-2 (File No.
333-2328-LA) filed with the Commission on March 11, 1996).
</TABLE>
3
<PAGE> 5
4.07* Excite, Inc. 1996 Equity Incentive Plan (incorporated by reference
to Excite's Registration Statement on Form S-8 (File No. 333-59329)
filed with the Commission on July 17,1998).
4.08* Excite, Inc. 1996 Directors Stock Option Plan (incorporated by
reference to Excite's Registration Statement on Form SB-2 (File No.
333-2328-LA) filed with the Commission on March 11, 1996).
4.09* Excite, Inc. 1996 Employee Stock Purchase Plan (incorporated by
reference to Excite's Registration Statement on Form S-8 (File No.
333-59329) filed with the Commission on July 17,1998).
4.10* Netbot, Inc. 1996 Stock Option Plan (incorporated by reference to
Excite's Registration Statement on Form S-8 (File No. 333-41523)
filed with the Commission on December 5, 1997).
4.11* MatchLogic, Inc. 1997 Equity Compensation Plan (incorporated by
reference to Excite's Registration Statement on Form S-8 (File No.
333-46591) filed with the Commission on February 19, 1998).
4.12* Throw, Inc. 1996 Stock Option Plan (incorporated by reference to
Excite's Registration Statement on Form S-8 (File No. 333-52001)
filed with the Commission on May 7, 1998).
4.13* Classifieds2000, Inc. 1996 Stock Option Plan (incorporated by
reference to Excite's Registration Statement on Form S-8 (File No.
333-52001) filed with the Commission on May 7, 1998).
5.01 Opinion of Fenwick & West LLP regarding the legality of the
securities to be offered.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of Ernst & Young LLP, Independent Auditors.
24.01 Power of Attorney (see page 5).
* The exhibits were previously filed with the Commission as indicated and
are incorporated herein by reference.
4
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant, At
Home Corporation, certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Redwood City, State of California, on this 2nd day of June,
1999.
AT HOME CORPORATION
By: /s/ THOMAS A. JERMOLUK
------------------------------------
Thomas A. Jermoluk
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Thomas A. Jermoluk, Kenneth A. Goldman
and David G. Pine, and each of them, his true and lawful attorneys-in-fact and
agents with full power of substitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement on Form S-8, and to
file the same with all exhibits thereto and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or his or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
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SIGNATURE TITLE DATE
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PRINCIPAL EXECUTIVE OFFICER:
/s/ THOMAS A. JERMOLUK Chairman and
- ------------------------------ Chief Executive Officer June 2, 1999
Thomas A. Jermoluk
PRINCIPAL FINANCIAL OFFICER:
/s/ KENNETH A. GOLDMAN Senior Vice President and
- ------------------------------ Chief Financial Officer June 2, 1999
Kenneth A. Goldman
PRINCIPAL ACCOUNTING OFFICER:
/s/ ROBERT A. LERNER
- ------------------------------
Robert A. Lerner Corporate Controller June 2, 1999
</TABLE>
5
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ADDITIONAL DIRECTORS
/s/ WILLIAM R. HEARST Director June 2, 1999
- ------------------------------
William R. Hearst III
Director June __, 1999
- ------------------------------
C. Michael Armstrong
/s/ GEORGE BELL Director June 2, 1999
- ------------------------------
George Bell
/s/ L. JOHN DOERR Director June 2, 1999
- ------------------------------
L. John Doerr
/s/ LEO J. HINDERY Director June 2, 1999
- ------------------------------
Leo J. Hindery
Director June __, 1999
- ------------------------------
John C. Malone
Director June __, 1999
- ------------------------------
John C. Petrillo
/s/ BRIAN L. ROBERTS Director June 2, 1999
- ------------------------------
Brian L. Roberts
Director June __, 1999
- ------------------------------
James R. Shaw
/s/ DAVID M. WOODROW Director June 2, 1999
- ------------------------------
David M. Woodrow
</TABLE>
6
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT EXHIBIT
NUMBER TITLE
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<S> <C>
4.01 The Registrant's Fifth Amended and Restated Certificate of
Incorporation, as filed with the Delaware Secretary of State on May
28, 1999.
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of Ernst & Young LLP, Independent Auditors.
24.01 Power of Attorney (see page 5).
</TABLE>
<PAGE> 1
EXHIBIT 4.01
FIFTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
AT HOME CORPORATION
(A DELAWARE CORPORATION)
AT HOME CORPORATION, a corporation organized and existing under
the laws of the State of Delaware (the "CORPORATION"), hereby certifies as
follows:
FIRST. The name of the Corporation is At Home Corporation. The
original Certificate of Incorporation of the Corporation was filed on March 28,
1995. An Amended and Restated Certificate of Incorporation was filed on August
29, 1995, a Second Amended and Restated Certificate of Incorporation was filed
on August 1, 1996, a Certificate of Retirement was filed on August 2, 1996, a
Third Amended and Restated Certificate of Incorporation was filed on August 14,
1996, a Certificate of Amendment was filed on April 11, 1997, a Certificate of
Designation of Series C Convertible Participating Preferred Stock was filed on
April 11, 1997, a Certificate of Amendment was filed on July 15, 1997, a Fourth
Amended and Restated Certificate of Incorporation was filed on July 16, 1997 and
a Certificate of Amendment was filed on July 9, 1998. The name under which the
Corporation was originally incorporated is "at Home Corporation."
SECOND. Pursuant to Section 242(b) of the Delaware General
Corporation Law (the "DGCL") the Board of Directors of the Corporation has duly
adopted, and a majority of the outstanding stock entitled to vote thereon and a
majority of each class of the outstanding stock entitled to vote as a class has
approved, this Fifth Amended and Restated Certificate of Incorporation of the
Corporation, which amends and restates the Fourth Amended and Restated
Certificate of Incorporation of the Corporation, as amended. This Fifth Amended
and Restated Certificate of Incorporation of the Corporation was duly adopted in
accordance with Section 245 of the DGCL.
THIRD. Pursuant to Sections 242 and 245 of the DGCL, the text of
the Fourth Amended and Restated Certificate of Incorporation is hereby restated
to read in its entirety as follows:
ARTICLE I
NAME
The name of the Corporation is At Home Corporation.
<PAGE> 2
ARTICLE II
REGISTERED OFFICE
The address of the registered office of the Corporation in the
State of Delaware is One Rodney Square, 10th Floor, Tenth and King Streets, in
the City of Wilmington, County of New Castle, 19801. The name of its registered
agent at such address is RL&F Service Corp.
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the DGCL.
ARTICLE IV
AUTHORIZED STOCK
The total number of shares of capital stock which the Corporation
shall have authority to issue is seven hundred twenty-nine million three hundred
sixty-nine thousand four hundred fourteen (729,369,414) shares, of which seven
hundred nineteen million seven hundred nineteen thousand four hundred fourteen
(719,719,414) shares shall be common stock with a par value of $.01 per share
("COMMON STOCK"), and nine million six hundred fifty thousand (9,650,000) shares
shall be preferred stock with a par value of $.01 per share ("PREFERRED STOCK").
Said shares of Common Stock and Preferred Stock shall be divided into the
following series:
(a) Six hundred eighty three million seven hundred thousand
(683,700,000) shares of Common Stock shall be of a series designated as "SERIES
A COMMON STOCK";
(b) Thirty million eight hundred thousand (30,800,000) shares of
Common Stock shall be of a series designated as "SERIES B COMMON STOCK";
(c) Five million two hundred nineteen thousand four hundred
fourteen (5,219,414) shares of Common Stock shall be of a series designated as
"SERIES K COMMON Stock"; and
(d) Nine million six hundred fifty thousand (9,650,000) shares of
Preferred Stock, which are undesignated as to series and are issuable in
accordance with the provisions of Section C of this Article IV (the "SERIES
PREFERRED STOCK").
Upon the filing of this Fifth Amended and Restated Certificate of
Incorporation, (i) each outstanding share of the Corporation's Series A Common
Stock shall be subdivided and split into two (2) shares of Series A Common Stock
of the Corporation; (ii) each outstanding share of the Corporation's Series B
Common Stock shall be subdivided and split into two (2) shares of Series B
Common Stock of the Corporation; and (iii) each outstanding share of the
Corporation's Series K Common Stock shall be subdivided and split into two (2)
shares of Series K Common Stock of
<PAGE> 3
the Corporation. The description of the Common Stock and the Preferred Stock of
the Corporation, and the relative rights, preferences, privileges and
limitations thereof, or the method of fixing and establishing the same, are as
hereinafter in this Article IV set forth:
SECTION A
CERTAIN DEFINITIONS
Unless the context otherwise requires, the terms defined in this
Section A shall have, for all purposes of this Certificate, the meanings herein
specified:
"BOARD OF DIRECTORS" or "BOARD" shall mean the Board of Directors
of the Corporation and, unless the context indicates otherwise, shall also mean,
to the extent permitted by law, any committee thereof authorized, with respect
to any particular matter, to exercise the power of the Board of Directors of the
Corporation with respect to such matter.
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday
or a day on which banking institutions in New York, New York are not required to
be open.
"CAPITAL STOCK" shall mean any and all shares, interests, rights
to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) corporate stock.
"CERTIFICATE" shall mean this Fifth Amended and Restated
Certificate of Incorporation of the Corporation, as it may from time to time
hereafter be amended or restated.
"CONVERTIBLE COMMON STOCK" shall mean the Series B Common Stock
and the Series K Common Stock, collectively.
"IPO" shall mean the closing of an initial public offering of the
Series A Common Stock.
"1933 ACT" shall mean the Securities Act of 1933, as amended.
"PERSON" shall mean any individual, corporation, partnership,
limited liability company, joint venture, association, joint stock company,
trust, unincorporated organization, government or agency or political
subdivision thereof, or other entity, whether acting in an individual, fiduciary
or other capacity.
"SERIES A COMMON STOCK" shall mean the Series A Common Stock, par
value $.01 per share, of the Corporation.
"SERIES B COMMON STOCK" shall mean the Series B Common Stock, par
value $.01 per share, of the Corporation.
"SERIES K COMMON STOCK" shall mean the Series K Common Stock, par
value $.01 per share, of the Corporation.
<PAGE> 4
SECTION B
SERIES A, SERIES B AND SERIES K COMMON STOCK
Each share of the Series A Common Stock, each share of the Series
B Common Stock and each share of Series K Common Stock shall, except as
otherwise provided in this Section B, be identical in all respects and shall
have equal rights and privileges.
1. Voting Rights.
(a) General Voting Rights.
Holders of Series A Common Stock shall be entitled to one
vote for each share of such stock held, holders of Series B Common Stock shall
be entitled to ten votes for each share of such stock held, and holders of
Series K Common Stock shall be entitled to one vote for each share of such stock
held on all matters presented to the holders of Common Stock of the Corporation.
Except as otherwise provided in this Certificate and except as may otherwise be
required by the DGCL or, with respect to any series of Series Preferred Stock,
in any resolution or resolutions providing for the establishment of such series
pursuant to authority vested in the Board of Directors by this Certificate, the
holders of shares of Series A Common Stock, the holders of shares of Series B
Common Stock, the holders of shares of Series K Common Stock and the holders of
shares of each series of Preferred Stock entitled to vote thereon, if any, shall
vote as one class with respect to the election of directors and with respect to
all other matters to be voted on by stockholders of the Corporation (including,
without limitation, any proposed amendment to this Certificate that would
increase the number of authorized shares of Series A Common Stock, of Series B
Common Stock, of Series K Common Stock or of any other class or series of stock
or decrease the number of authorized shares of any such class or series of stock
(but not below the number of shares thereof then outstanding)), and no separate
vote or consent of the holders of shares of Series A Common Stock, the holders
of shares of Series B Common Stock, the holders of shares of Series K Common
Stock or the holders of shares of any such series of Preferred Stock shall be
required for the approval of any such matter.
(b) Election of Series Common Stock Directors.
(i) So long as there are not less than 10,000,000
shares of Series B Common Stock outstanding, the holders
of Series B Common Stock, voting separately as a single
series, shall have the exclusive right, acting by written
consent given in accordance with paragraph 1(b)(vi) below
or by vote at a meeting called for that purpose, to elect
five directors to the Board of Directors (such directors
elected by the holders of the Series B Common Stock are
hereinafter collectively referred to as the "SERIES B
COMMON STOCK DIRECTORS").
<PAGE> 5
In the event that the holders of Series B
Common Stock are entitled to elect any Series B Common
Stock Director(s), then so long as there are any shares of
Series A Common Stock outstanding, the holders of Series A
Common Stock, voting separately as a single series, shall
have the right, acting by written consent given in
accordance with paragraph 1(b)(vi) below or by vote at a
meeting called for that purpose, to elect two directors,
each of whom must qualify as an Outside Director as
defined in Section B(1) of Article V of this Certificate,
to the Board of Directors (such directors elected by the
holders of the Series A Common Stock are hereinafter
referred to as the "SERIES A COMMON STOCK DIRECTORS," and
together with the Series B Common Stock Directors, the
"SERIES COMMON STOCK DIRECTORS").
(ii) Each Series Common Stock Director shall hold
such position until the earliest of the next meeting or
written consent of stockholders entitled to vote on the
election of said director, his resignation or his removal.
(iii) At any meeting of stockholders having as a
purpose the election of directors by holders of the Series
A Common Stock and/or holders of the Series B Common
Stock, as the case may be, the presence, in person or by
proxy, of the holders of a majority of the shares of the
applicable series of Common Stock entitled to vote in such
election then outstanding shall be required and be
sufficient to constitute a quorum of such series for the
election of any director by such holders. Each Series
Common Stock Director to be elected at such meeting shall
be elected by a plurality of the votes of the shares of
the applicable series of Common Stock present in person or
represented by proxy at such meeting and entitled to vote
in the election of such Series Common Stock Director or by
written consent of the holders of such shares given in
accordance with paragraph 1(b)(vi) below. At any such
meeting or adjournment thereof, (i) the absence of a
quorum of such holders of Series A Common Stock or Series
B Common Stock, as the case may be, shall not prevent the
election of the directors to be elected by the holders of
shares other than the series of Common Stock the holders
of which do not constitute a quorum for such election at
such meeting, and the absence of a quorum of holders of
shares other than the Series A Common Stock or Series B
Common Stock shall not prevent the election of the
directors to be elected by the holders of the Series A
Common Stock or Series B Common Stock, as the case may be,
and (ii) in the absence of a quorum of holders of (x)
shares of the Series A Common Stock or Series B Common
Stock, (y) shares other than the Series A Common Stock or
Series B Common Stock, or (z) shares of all such classes
and series, holders of a majority of the shares, present
in person or by proxy, of each class or series of stock
which lack a quorum shall have power to adjourn the
meeting for the election of directors which such class or
series is entitled to elect, from time to time, without
notice
<PAGE> 6
(subject to applicable law) other than announcement at the
meeting, until a quorum shall be present.
(iv) Except as provided in paragraph 1(b)(v), any
vacancy in the office of a Series Common Stock Director
occurring during the effectiveness of the applicable
provisions of paragraph 1(b)(i) shall be filled solely by
the holders of the series of Common Stock entitled to vote
for such Series Common Stock Director by vote of such
holders as provided in paragraph 1(b)(iii) above at a
meeting called for such purpose or by written consent of
such holders given in accordance with paragraph 1(b)(vi)
below.
(v) A Series Common Stock Director may be removed
without cause by the vote or by written consent of the
holders of a majority of the outstanding shares of Series
A Common Stock or Series B Common Stock, as the case may
be, which elected such Series Common Stock Director. Any
vacancy in the office of a Series Common Stock Director
shall be filled by the affirmative vote of the holders of
a majority of the outstanding shares of the applicable
series of Common Stock entitled to elect the Series Common
Stock Director so removed at a meeting, which may be the
same meeting at which the removal of such Series Common
Stock Director was voted upon, or by written consent of
the holders of such series of Common Stock given in
accordance with paragraph 1(b)(vi) below; provided,
however, that if there is a vacancy in the office of one
of the two Series A Common Stock Directors, the remaining
Series A Common Stock Director shall have the power to
fill the vacancy. Any director elected to fill a vacancy
shall serve the same remaining term as that of his or her
predecessor and until his or her successor has been chosen
and has qualified.
(vi) With respect to actions by the holders of the
Series A Common Stock, Series B Common Stock or Series K
Common Stock upon those matters on which such holders are
each entitled to vote separately as a separate series,
such actions may be taken without a meeting, without prior
notice and without a vote, if a consent or consents in
writing, setting forth the action so taken, shall be
signed by the holders of outstanding shares of Series A
Common Stock, Series B Common Stock or Series K Common
Stock, as the case may be, having not less than the
minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all
shares of such series of Series A Common Stock, Series B
Common Stock or Series K Common Stock entitled to vote
thereon were present and voted, and shall be delivered to
the Corporation as provided in the DGCL. Notice shall be
given in accordance with the applicable provisions of the
DGCL of the taking of corporate action without a meeting
by less than unanimous written consent.
<PAGE> 7
(vii) The right of the holders of any series of
Common Stock to elect Series Common Stock Directors shall
be in addition to their right to vote, together as a
single class with the holders of the Series A Common
Stock, Series B Common Stock and Series K Common Stock and
any series of Preferred Stock so entitled to vote, acting
by written consent or by vote at a meeting called for the
purpose of election of directors, in the election of all
Additional Directors, as defined in Section A(2) of
Article V of this Certificate.
2. Conversion Rights.
Each share of Series B Common Stock shall be convertible
at any time, at the option of the holder thereof, into one share of Series A
Common Stock. Each share of Series K Common Stock shall be convertible at any
time, at the option of the holder thereof, into one share of Series A Common
Stock. Any such conversion may be effected by any holder of any series of
Convertible Common Stock by surrendering such holder's certificate or
certificates for the series of Convertible Common Stock to be converted, duly
endorsed, at the office of the Corporation or any transfer agent for the
Convertible Common Stock, together with a written notice to the Corporation at
such office that such holder elects to convert all or a specified number of
shares of such series of Convertible Common Stock represented by such
certificate and stating the name or names in which such holder desires the
certificate or certificates for Series A Common Stock to be issued. If so
required by the Corporation, any certificate for shares surrendered for
conversion shall be accompanied by instruments of transfer, in form satisfactory
to the Corporation, duly executed by the holder of such shares or the duly
authorized representative of such holder. Promptly thereafter, the Corporation
shall issue and deliver to such holder or such holder's nominee or nominees, a
certificate or certificates for the number of shares of Series A Common Stock to
which such holder shall be entitled as herein provided (provided that the
Corporation will use commercially reasonable efforts to make such delivery
within two Business Days after receipt of the certificate or certificates,
notice, and if required, instruments of transfer referred to above). Such
conversion shall be deemed to have been made at the close of business on the
date of receipt by the Corporation or any such transfer agent of the certificate
or certificates, notice and, if required, instruments of transfer referred to
above, and the Person or Persons entitled to receive the Series A Common Stock
issuable on such conversion shall be treated for all purposes as the record
holder or holders of such Series A Common Stock on that date; provided, however,
that the conversion may, at the option of any holder surrendering Convertible
Common Stock for conversion, be conditioned upon notice by such holder to the
Corporation of the occurrence of any specified event. A number of shares of
Series A Common Stock equal to the number of shares of Series B Common Stock and
Series K Common Stock, respectively, outstanding from time to time shall be set
aside and reserved for issuance upon conversion of shares of Series B Common
Stock and of Series K Common Stock, respectively. Shares of Series B Common
Stock and Series K Common Stock that have been converted hereunder shall be
retired and shall not be reissued. Shares of Series A Common Stock shall not be
convertible into shares of Series B Common Stock or Series K Common Stock.
<PAGE> 8
3. Dividends. Subject to paragraph 4 of this Section B, whenever
a dividend is paid to the holders of one series of Common Stock, the Corporation
also shall pay to the holders of all other series of Common Stock a dividend per
share equal to the dividend per share paid to the holders of such first series
of Common Stock. Dividends shall be payable only if, as and when declared by the
Board of Directors out of the assets of the Corporation legally available
therefor.
4. Share Distributions. If at any time a distribution paid in
Series A Common Stock, Series B Common Stock, Series K Common Stock or any other
securities of the Corporation or any other Person (hereinafter sometimes called
a "SHARE DISTRIBUTION") is to be made with respect to the Series A Common Stock,
Series B Common Stock or Series K Common Stock, such share distribution may be
declared and paid only as follows:
(a) a share distribution consisting of shares of Series A
Common Stock (or any securities of the Corporation that are convertible into, or
exercisable or exchangeable for, or evidence the right to purchase shares of
Series A Common Stock) to holders of Series A Common Stock, Series B Common
Stock and Series K Common Stock, on an equal per share basis; or consisting of
shares of Series A Common Stock (or securities of the Corporation that are
convertible into, or exercisable or exchangeable for, or evidence the right to
purchase shares of Series A Common Stock) to holders of Series A Common Stock
and, on an equal per share basis, shares of Series B Common Stock (or securities
of the Corporation that are convertible into, or exercisable or exchangeable
for, or evidence the right to purchase shares of Series B Common Stock) to
holders of Series B Common Stock and, on an equal per share basis, shares of
Series K Common Stock (or securities of the Corporation that are convertible
into, or exercisable or exchangeable for, or evidence the right to purchase
shares of Series K Common Stock) to holders of Series K Common Stock; and
(b) a share distribution consisting of any class or series
of securities of the Corporation or any other Person other than as described in
paragraph 4(a) above, on the basis of a distribution of identical securities, on
an equal per share basis, to holders of Series A Common Stock, Series B Common
Stock and Series K Common Stock or on the basis of a distribution of different
classes or series of securities to holders of Series A Common Stock, Series B
Common Stock and Series K Common Stock, provided that (i) the securities so
distributed (and, if applicable, the securities into which the distributed
securities are convertible, or for which they are exercisable or exchangeable,
or which the distributed securities evidence the right to purchase) do not
differ in any respect other than their relative voting rights and related
differences in designation, conversion and share distribution provisions, (ii)
such rights and provisions shall not differ to a greater extent than the
corresponding differences in voting rights, designation, conversion and share
distribution provisions among the Series A Common Stock, the Series B Common
Stock and the Series K Common Stock and (iii) in each case such distribution is
otherwise made on an equal per share basis.
The Corporation shall not reclassify, subdivide or combine
any series of Common Stock without reclassifying, subdividing or combining all
other series of Common Stock, on an equal per share basis.
<PAGE> 9
5. Liquidation and Dissolution. In the event of a liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
after payment or provision for payment of the debts and liabilities of the
Corporation and subject to the prior payment in full of the preferential amounts
to which any series of Preferred Stock is entitled, the holders of Series A
Common Stock, the holders of Series B Common Stock, the holders of Series K
Common Stock and the holders of any class or series of Preferred Stock entitled
to participate in such distribution shall share equally, on a share for share
basis (on an as converted into Common Stock basis with respect to any shares of
Preferred Stock which are convertible into Common Stock, unless the
designations, preferences, rights and qualifications, limitations or
restrictions of such Preferred Stock provide otherwise), in the assets of the
Corporation remaining for distribution to holders of Common Stock. Neither the
consolidation or merger of the Corporation with or into any other Person or
Persons nor the sale, transfer or lease of all or substantially all of the
assets of the Corporation shall itself be deemed to be a liquidation,
dissolution or winding up of the Corporation within the meaning of this
paragraph 5.
6. Limitation on Issuance of Series B Common Stock and of Series
K Common Stock. No shares of Series B Common Stock shall be issued except
pursuant to paragraph 4 of this Section B or upon conversion of shares of any
series of Series Preferred Stock which have been authorized in accordance with
this Certificate, having the right to convert into shares of Series B Common
Stock. No shares of Series K Common Stock shall be issued except pursuant to
paragraph 4 of this Section B or upon conversion of shares of any series of
Series Preferred Stock, which have been authorized in accordance with this
Certificate, having the right to convert into shares of Series K Common Stock.
7. Regulatory Matters. If any shares of Series A Common Stock
which would be issuable upon conversion of shares of Convertible Common Stock
require registration with or approval of any governmental authority before such
shares may be issued upon conversion, the Corporation will in good faith and as
expeditiously as possible cause such shares to be duly registered or approved,
as the case may be. Without limiting the foregoing, if the conversion of shares
of Convertible Common Stock shall be subject to the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, and the rules and regulations promulgated
thereunder (the "HSR ACT AND RULES"), the Corporation shall promptly comply with
any applicable filing or notice requirements under the HSR Act and Rules and use
its reasonable commercial efforts to furnish the information required in
connection therewith to the Federal Trade Commission and the Antitrust Division
of the Department of Justice. If applicable, the Corporation shall use its
reasonable commercial efforts to list (i) the shares of Series A Common Stock
issuable upon conversion of the Series K Common Stock and (ii) the shares of
Series A Common Stock issuable upon conversion of the Series B Common Stock, in
each case prior to delivery of such shares of Series A Common Stock upon such
conversion, on the principal national securities exchange (including, but not
limited to, the Nasdaq National Market) on which the outstanding Series A Common
Stock is listed at the time of such delivery.
SECTION C
SERIES PREFERRED STOCK
<PAGE> 10
The Series Preferred Stock may be issued, from time to time, in
one or more series, with such designations, preferences and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, as shall be stated and expressed in a resolution or
resolutions providing for the issue of such series adopted pursuant to Board
Action (as hereinafter defined). The Board of Directors, in such resolution or
resolutions (a copy of which shall be filed and recorded as required by law), is
also expressly authorized to fix:
(i) the distinctive serial designations and the division
of such shares into series and the number of shares of a
particular series, which may be increased or decreased, but not
below the number of shares thereof then outstanding, by a
certificate made, signed, filed and recorded as required by law;
(ii) the dividend rate or amounts, if any, for the
particular series, the date or dates from which dividends on all
shares of such series shall be cumulative, if dividends on stock
of the particular series shall be cumulative and the relative
rights of priority, if any, or participation, if any, with
respect to payment of dividends on shares of that series;
(iii) the rights of the shares of each series in the event
of voluntary or involuntary liquidation, dissolution or winding
up of the Corporation, and the relative rights of priority, if
any, of payment of shares of each series;
(iv) the right, if any, of the holders of a particular
series to convert or exchange such stock into or for other
classes or series of a class of stock or indebtedness of the
Corporation, and the terms and conditions of such conversion or
exchange, including provision for the adjustment of the
conversion or exchange rate in such events as the Board of
Directors shall determine; provided that no series of Series
Preferred Stock shall have the right to convert into Series B
Common Stock;
(v) the voting rights, if any, of the holders of a
particular series;
(vi) the terms and conditions, if any, for the Corporation
to purchase or redeem shares of a particular series; and
(vii) any other relative rights, powers, preferences and
limitations of a particular series of the Series Preferred Stock.
The Board of Directors, acting through Board Action, is
authorized to exercise its authority with respect to fixing and designating
various series of the Series Preferred Stock and determining the relative
rights, powers and preferences thereof to the full extent permitted by
applicable law, subject to any stockholder vote that may be required by this
Certificate.
All shares of any one series of the Series Preferred Stock shall
be alike in every particular. Except to the extent otherwise provided in the
resolution or resolutions providing for the issue of any series of Series
Preferred Stock, the holders of shares of such series shall have no
<PAGE> 11
voting rights except as may be required by the laws of the State of Delaware.
Further, unless otherwise expressly provided in the Certificate of Designation
for a series of Series Preferred Stock, no consent or vote of the holders of
shares of Series Preferred Stock or any series thereof shall be required for any
amendment to this Certificate that would increase the number of authorized
shares of Series Preferred Stock or the number of authorized shares of any
series thereof or decrease the number of authorized shares of Series Preferred
Stock or the number of authorized shares of any series thereof (but not below
the number of shares of Series Preferred Stock or of such series, as the case
may be, then outstanding).
Except as may be provided by the Board of Directors in a
Certificate of Designation or by law, shares of any series of Series Preferred
Stock that have been redeemed (whether through the operation of a sinking fund
or otherwise) or purchased by the Corporation, or which, if convertible or
exchangeable, have been converted into or exchanged for shares of stock of any
other class or classes shall be retired and shall not be reissued.
ARTICLE V
DIRECTORS
SECTION A
NUMBER AND DESIGNATION
The governing body of the Corporation shall be a Board of
Directors which shall consist of not less than three (3) and not more than
seventeen (17) (the "MAXIMUM NUMBER") directors, with the exact number of
directors constituting the entire Board of Directors (the "ENTIRE BOARD") to be
specified from time to time in accordance with this Certificate by Board Action
of the Board of Directors; provided, however, that the total number of directors
constituting the Entire Board shall not be less than the total number (the
"MINIMUM NUMBER") of (x) Series Common Stock Directors the holders of Common
Stock are entitled to elect and (y) any directors the holders of any series of
Series Preferred Stock, voting as a separate series of Preferred Stock and not
with the holders of the Common Stock, are entitled to elect, which Minimum
Number shall not be more than the Maximum Number.
1. Series Common Stock Directors. The Series Common Stock
Directors shall be elected by the holders of the applicable series of Common
Stock, subject to, and in the manner provided in, Article IV of this
Certificate.
2. Additional Directors. At any meeting of stockholders having as
a purpose the election of directors, to the extent that the total number of
directors constituting the Entire Board exceeds the Minimum Number, any
additional directors (the "ADDITIONAL DIRECTORS") shall be elected by the
holders of the Common Stock and, if so fixed by the resolution or resolutions of
the Board of Directors adopted by Board Action creating, designating and
establishing such series of Series Preferred Stock, the holders of Series
Preferred Stock, subject to, and in the manner provided in, Article IV of this
Certificate.
<PAGE> 12
SECTION B
BOARD ACTIONS
1. Definitions. Unless the context otherwise requires, the terms
defined in this paragraph 1 shall have, for all purposes of this Certificate,
the meanings herein specified:
"AFFILIATE" means, with respect to any Person, any other Person
that directly or indirectly through one or more intermediaries Controls, is
Controlled by, or is under common Control with such Person.
"ASSOCIATE" shall have the meaning set forth in Rule 405 under
the Securities Act.
"@HOME REPURCHASE RIGHT" has the meaning given to such term in
the Master Distribution Agreement.
"@HOME SERVICES" means the business of providing Internet
connectivity service and Internet "backbone" service, which includes (without
limitation) the following: (i) direct connectivity to the Internet through the
development, packaging, marketing and distribution of a suite of branded
Internet connectivity services and certain branded applications, including one
or more custom browsers, for use by subscribers and information providers,
together with connections to various on-line hosting services (such as America
Online, Prodigy, CompuServe and MSN) and information providers, both in the
United States and internationally (in countries where the Corporation is capable
of providing such service), (ii) directory services and navigation services to
content created by third parties, provided, however, that it is not contemplated
that the Corporation would itself be a creator of content (other than with
respect to content created as part of the Corporation's navigation services
(such as the "video barker" and "templates" for the creation of navigation home
pages), the aggregation and organization of content created by third parties and
technological assistance to such third party creators), and (iii) systems for
(a) "backbone" transmission, (b) network management, and (c) billing and
associated support functions.
"BOARD ACTION" means, with respect to any matter considered by
the Board of Directors or any committee thereof, the action of the Board or such
committee with respect thereto for purposes of Section 141 of the DGCL, which
action shall be deemed taken:
(i) in the case of action by the Board of
Directors, by the approval of such action by:
(a) with respect to any matter that is not a
Related Party Transaction or a Related Party .Com Agreement or Related
Party Promotional Agreement, (x) a majority of the members of the Board
present at a meeting at which a quorum of the Board is present or a
written consent to such action executed by all the members of the Board
and (y) so long as the holders of Series B Common Stock are entitled to
elect at least one Series B Common Stock Director, (1) as to matters
that are not Supermajority Items or Unanimous Items,
<PAGE> 13
so long as the Series B Common Stock Directors are entitled to exercise
the Special Director Approval Right, seventy-five percent (75%) (rounded
up to the nearest whole number of directors) (or two-thirds if there are
only three such directors, or 100% if there are only two such directors)
of the total number of Series B Common Stock Directors or (2) with
respect to any matter that is a Supermajority Item or a Unanimous Item,
a Supermajority Vote or Unanimous Vote of the Series B Common Stock
Directors;
(b) with respect to any matter that is a
Related Party Transaction, either (I)(x) a majority of the members of
the Board present at a meeting at which a quorum of the Board is
present, the notice of which meeting set forth the matter that is a
Related Party Transaction and a reasonably detailed description of such
matter, or by Special Written Consent; and (y) so long as the holders of
Series B Common Stock are entitled to elect at least one Series B Common
Stock Director, (1) seventy-five percent (75%) (rounded up to the
nearest whole number of directors) (or two-thirds if there are only
three such directors, or 100% if there are only two such directors) of
the total number of Series B Common Stock Directors (regardless of
whether or not such Series B Common Stock Directors are Disinterested
Directors) and (2) a majority of the Series B Common Stock Directors who
are Disinterested Directors; provided, however, that, so long as the
holders of Series B Common Stock are entitled to elect at least one
Series B Common Stock Director, in addition to the requirements set
forth above in this paragraph (b)(I)(y)(2), (A) if the Related Party
Transaction is a Supermajority Item, the approval of such Related Party
Transaction shall require the affirmative vote or written consent of
seventy-five percent (75%) (rounded up to the nearest whole number of
directors) (or two-thirds if there are only three such directors, or
100% if there are only two such directors) of the total number of Series
B Common Stock Directors who are Disinterested Directors; and (B) if the
Related Party Transaction is a Unanimous Item, the approval of such
Related Party Transaction shall require the affirmative vote or written
consent of the total number of Series B Common Stock Directors
(regardless of whether or not such directors are Disinterested
Directors); or (II)(x) a majority of the members of the Board present at
a meeting at which a quorum of the Board is present, the notice of which
meeting set forth the matter that is a Related Party Transaction and a
reasonably detailed description of such matter, or by Special Written
Consent; and (y) so long as the holders of Series B Common Stock are
entitled to elect a Series B Common Stock Director, all of the Series B
Common Stock Directors (regardless of whether or not such Series B
Common Stock Directors are Disinterested Directors); or
(c) with respect to the approval of a
Related Party .Com Agreement or Related Party Promotional Agreement,
approval in accordance with clauses (y) or (z) of paragraph 5 below (but
subject to paragraph 7 below), provided that no Board Action is required
for such approval in the circumstances specified in clause (x) of
paragraph 5;
<PAGE> 14
(ii) in the case of action by any committee of the Board
of Directors (other than the .Com Committee), by the approval of such
action by: (a) either a majority of the members of such committee
present at a meeting at which a quorum of such committee is present or a
written consent to such action executed by all the members of such
committee; and (b) so long as the holders of Series B Common Stock are
entitled to elect at least one Series B Common Stock Director and the
Series B Common Stock Directors are entitled to exercise the Special
Director Approval Right, seventy-five percent (75%) (rounded up to the
nearest whole number of directors) (or two-thirds if there are only
three such directors, or 100% if there are only two such directors) of
the total number of Series B Common Stock Directors; provided, however,
that the approval of the Series B Common Stock Directors shall not be
required in connection with the approval of any matter as to which the
Board of Directors and the Series B Common Stock Directors have
specifically provided in the specification of powers and duties of such
committee by resolution or Bylaw approved by Board Action, that the
approval of the Series B Common Stock Directors shall not be required;
and
(iii) in the case of action by the .Com Committee, either
(1) a majority of the total number of members of the .Com Committee or
(2) a written consent to such action executed by all of the members of
the .Com Committee.
"CABLE PARENT" shall mean, as applicable, each of (i) TCI
Internet Services, Inc., a Colorado corporation ("TCI SERVICES"), TCI.NET, Inc.,
a Delaware corporation ("TCI.NET"), TCI Communications, Inc., a Delaware
corporation, and TCI Cable Investments Inc., a Delaware corporation (TCI
Communications, Inc., TCI Cable Investments, Inc., TCI.NET and TCI Services
collectively being a single Cable Parent), (ii) Comcast On-Line Communications,
Inc., a Delaware corporation, and Comcast Cable Communications, Inc., a Delaware
corporation (collectively being a single Cable Parent) and (iii) Cox
Communications, Inc., a Delaware corporation. In addition, each Parent (as
defined below) shall be entitled to designate one or more members of such
Parent's Stockholder Group (as defined in the Stockholders' Agreement) to be
included within the Cable Parent of such Parent's Stockholder Group. Any such
additional entities are required to execute and deliver to the Corporation and
each other Parent, an instrument, in form and substance reasonably acceptable to
the Corporation, agreeing to be bound by the provisions of the Stockholders'
Agreement applicable to the other Persons which are included within the Cable
Parent of such Parent's Stockholder Group. Such designation shall not constitute
an assignment by or release of any other Person which is a Cable Parent of such
Stockholder Group.
".COM AGREEMENT" means any agreement between the Corporation (or
any Cable Parent or a Controlled Affiliate thereof acting in the capacity of a
sales agent by and on behalf of the Corporation pursuant to a sales agency
agreement to be entered into by such Cable Parent or Controlled Affiliate and
the Corporation, which agreement will, among other things, specify the terms and
conditions upon which such Person may act as a sales agent for the Corporation,
including specification of the terms upon which such Person may enter into a
.Com Agreement
<PAGE> 15
on the Corporation's behalf) and a content provider which provides (i) physical
connectivity and access to the @Home Network (as defined in the Master
Distribution Agreement) and (ii) for compensation, if any, to the Corporation in
accordance with its charges therefor.
"COMCAST" shall mean Comcast Corporation, a Pennsylvania
corporation.
"COMCAST STOCKHOLDER GROUP" has the meaning given to such term in
the Stockholders' Agreement.
"COMCAST SUB" shall mean Comcast PC Investments, Inc., a Delaware
corporation, and any Controlled Affiliate of Comcast to which Company Securities
are transferred in accordance with the terms of the Stockholders' Agreement.
"COMPANY SECURITIES" has the meaning given to such term in the
Stockholders' Agreement.
"CONTROL" shall mean 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" shall mean, as to any Person, any other
Person which is Controlled by such Person; provided, however, that the
Corporation shall not be deemed to be a Controlled Affiliate of any Parent or
such Parent's Controlled Affiliates.
"COX SUB" shall mean Cox @Home, Inc. a Delaware corporation, and
any Controlled Affiliate of Cox Communications, Inc. to which Company Securities
are transferred in accordance with the terms of the Stockholders' Agreement.
"DISINTERESTED DIRECTORS" means any member of the Board of
Directors who is not an interested director for purposes of DGCL Section 144(a);
provided, however, that any director who is an officer, director, employee or
partner of a Related Party shall, notwithstanding the fact that such director is
not otherwise personally interested in a Related Party Transaction, be deemed
interested in such Related Party Transaction.
"FILING DATE" shall mean May 28, 1999.
"KPCB AFFILIATES" shall mean collectively, Kleiner, Perkins,
Caufield & Byers VII and KPCB Information Sciences Zaibatsu Fund II, each a
California partnership, and James Clark.
"LCO AGREEMENT" means the provisions of the LCO Agreement Term
Sheet, set forth as Exhibit B to the letter agreement dated May 15, 1997, among
TCI Sub, Comcast Sub and Cox Sub and certain of their respective Affiliates and
the Corporation, as amended from time to time (the "LCO AGREEMENT TERM SHEET");
provided that if the matters set forth in the LCO Agreement Term Sheet are
superseded by a definitive agreement which is executed by the
<PAGE> 16
necessary parties thereto, such definitive agreement will constitute the LCO
Agreement for all purposes hereunder.
"MASTER DISTRIBUTION AGREEMENT" shall mean the provisions of the
Master Distribution Agreement Term Sheet, set forth as Exhibit A to the letter
agreement dated May 15, 1997, among TCI Sub, Comcast Sub, and Cox Sub and
certain of their respective Affiliates and the Corporation, as amended from time
to time (the "MASTER DISTRIBUTION AGREEMENT TERM SHEET"); provided that if the
matters set forth in the Master Distribution Agreement Term Sheet are superseded
by a definitive agreement which is executed by the necessary parties thereto,
such definitive agreement will constitute the Master Distribution Agreement for
all purposes hereunder.
"OUTSIDE DIRECTOR" means any director of the Corporation who (i)
is not an officer (other than any Vice Chairman) of, or employed by, the
Corporation or its Subsidiaries and (ii) is not an Affiliate or Associate of any
of Cox Enterprises, Inc., a Delaware corporation, Comcast or TCI or any of their
respective Controlled Affiliates (other than the Corporation and its
Subsidiaries).
"PARENT" has the meaning given to such term in the Stockholders'
Agreement.
"PERMITTED REPURCHASES" means the right or obligation of the
Corporation to repurchase or redeem securities at any time, out of funds legally
available therefor, (x) from employees, directors or consultants of the
Corporation or any Subsidiary thereof, shares of equity securities of the
Corporation, equity securities of any Subsidiary of the Corporation or options,
warrants or other rights to acquire such securities issued to such employees,
directors or consultants provided that such repurchase is pursuant to repurchase
or redemption rights contained in the instrument pursuant to which such
securities were originally issued and (y) from the Comcast Stockholder Group any
Subject Shares upon the Corporation's exercise of the @Home Repurchase Right
pursuant to the Master Distribution Agreement.
"PROMOTIONAL AGREEMENT" means an agreement entered into between a
content provider and the Corporation (individually and not through an agency
relationship with a Cable Parent or any of its Controlled Affiliates) providing
for the promotion of such content or content provider on the @Home Services
(e.g., through button or hot link placement on the browsers, home pages or theme
pages in the National Area (as defined in the Master Distribution Agreement), by
the @Home video barker or otherwise) as the Corporation and such content
provider shall agree, at which point such promotional activity shall become a
part of the @Home Services, subject, however, to the Cable Parent Exclusion
Right (as defined in the Master Distribution Agreement).
"SPECIAL DIRECTOR APPROVAL RIGHT" means the requirement set forth
in clause (i)(a)(y)(1) of the definition of Board Action contained herein, which
requirement shall continue in effect so long as TCI Sub beneficially owns at
least (i) 15,400,000 shares of Series B Common Stock, which shares are Company
Securities and as adjusted for stock splits, stock dividends and the like
occurring after the Filing Date, and (ii) securities representing a majority of
the outstanding voting power of the Corporation.
<PAGE> 17
"SPECIAL VOTING STOCK" shall mean any class or series of capital
stock of the Corporation established or authorized after the Filing Date
(including pursuant to the authority granted herein to the Board to establish
the designations, preferences, rights and qualifications, limitations and
restrictions of any series of Series Preferred Stock pursuant to Board Action)
having voting rights deemed senior to those of the holders of Series A Common
Stock or Series K Common Stock. A class or series of capital stock shall be
deemed to have senior voting rights and to be Special Voting Stock if holders of
such security (x) are entitled to more than one vote per share (determined on an
as-converted into Common Stock basis) when voting with the holders of Common
Stock or (y) are entitled to vote as a separate class or series upon any matter
submitted to a vote of all of the stockholders of the Corporation other than (i)
as required by Section 242(b) of the DGCL, (ii) with respect to the creation or
issuance of a class or series of capital stock which is to rank senior to such
capital stock as to liquidation rights or rights relating to dividends,
distributions, repurchases and redemptions, (iii) with respect to amendments to
the terms and provisions of such securities, or (iv) such additional matters as
would be customary or appropriate in the context of the issuance of such class
or series of capital stock in a financing transaction with a third party (as
opposed to a strategic transaction) in light of the circumstances under which
such financing transaction is being consummated.
"SPECIAL WRITTEN CONSENT" when used with respect to the approval
of any action by the Board, means a written consent to such action executed by
all of the members of the Board, provided, that such written consent is executed
by directors subsequent to a meeting of the Board, the notice of which meeting
set forth the matter which is the subject of such written consent and a
reasonably detailed description of such matter.
"STOCKHOLDERS' AGREEMENT" shall mean that certain Amended and
Restated Stockholders' Agreement, dated as of July 16, 1997, by and among the
Corporation, TCI Sub, Comcast Sub, Cox Sub and the KPCB Affiliates and certain
Affiliates of such Persons, as amended from time to time.
"SUBJECT SHARES" has the meaning given to such term in the Master
Distribution Agreement.
"SUBSIDIARY" of any Person shall mean (i) a corporation a
majority of the capital stock of which, having voting power under ordinary
circumstances to elect directors, is at the time, directly or indirectly, owned
by such Person and/or one or more Subsidiaries of such Person and (ii) any other
Person (other than a corporation) in which such Person and/or one or more
Subsidiaries of such Person, directly or indirectly, has (x) a majority
ownership interest or (y) the power to elect or direct the election of a
majority of the members of the governing body of such first-named Person.
"SUPERMAJORITY VOTE" has the meaning given to such term in
Section B(4)(a) of Article V of this Certificate.
"TCI" shall mean Tele-Communications, Inc., a Delaware
corporation, but in the event of a Qualified Spin Off Transaction (as defined in
the Stockholders' Agreement) relating to the TCI
<PAGE> 18
Stockholder Group (as defined in the Stockholders' Agreement), such term shall
mean the Spin Off Parent (as defined in the Stockholders' Agreement) resulting
from such Qualified Spin Off Transaction.
"TCI SUB" shall mean TCI Internet Holdings, Inc., a Colorado
corporation, and any Controlled Affiliate of TCI, to which Company Securities
are transferred in accordance with the terms of the Stockholders' Agreement.
"UNANIMOUS VOTE" has the meaning given to such term in Section
B(4)(b) of Article V of this Certificate.
2. Vote Required for Actions of the Board or Committees.
(a) Except as otherwise provided by law or this
Certificate and subject to the rights of approval set forth in paragraphs 3, 4,
5 and 7 below, any action or approval by the Board of Directors or any committee
thereof shall require that approval therefor be obtained by Board Action.
(b) Any approval of the Series B Common Stock Directors
may be evidenced by the affirmative vote of such Series B Common Stock Directors
(i) at the Board meeting or committee meeting at which such action is approved,
(ii) by unanimous written consent of the Board or a committee thereof including
such Series B Common Stock Directors, or (iii) by a separate approval granted at
a meeting of such Series B Common Stock Directors or by written consent of the
requisite number of such Series B Common Stock Directors required for the matter
being considered by such Series B Common Stock Directors under the definition of
Board Action contained herein. The requirements for Series B Common Stock
Director approval herein and the procedures thereof are included by virtue of
the authority contained in Section 141(a) of the DGCL.
(c) Except as specifically provided in paragraph 6 below
with respect to the powers of the .Com Committee, no committee of the Board
shall have the power to act on any Related Party Transaction, Supermajority
Item, Unanimous Item or any Related Party .Com Agreement or Related Party
Promotional Agreement.
3. Related Party Transactions.
(a) Without limiting the application of any provision of
Delaware law, including but not limited to DGCL Section 144, relating to the
approval of transactions by members of the Board who are interested directors,
any Related Party Transaction must be approved by a Board Action.
(b) A "RELATED PARTY" shall mean any holder of more than
5% of the voting power of the Corporation or a Related Party Affiliate of such
holder. The term "RELATED PARTY TRANSACTION" shall mean any transaction between
the Corporation and a Related Party; provided, however, that the following
transactions will not be Related Party Transactions: (i) any
<PAGE> 19
transaction or series of related transactions, that (x) are in the ordinary
course of business, (y) are on arms' length terms, and (z) involve an aggregate
amount that is less than $1,000,000; (ii) the entering into of LCO Agreements
and other agreements for the provision of ancillary or related services by the
Corporation, between a Related Party or its Related Party Affiliates, on the one
hand, and the Corporation, on the other hand, provided that the terms of such
LCO Agreements or such other agreements are no more favorable to such Related
Party and its Related Party Affiliates than the terms of similar agreements then
currently offered by or generally available from the Corporation to each other
Cable Parent or its Controlled Affiliates (without regard to the size (through
volume discounts or otherwise) or identity of such Cable Parent or its ownership
of securities of the Corporation); and (iii) the entering into or performance
under any .Com Agreement or Promotional Agreement. The term "RELATED PARTY
AFFILIATE" shall mean, with respect to any Person, any other Person that
directly or indirectly, through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such first Person; provided,
that (i) any Person owning, directly or indirectly, in excess of 25% of the
equity interests (on a fully diluted basis) of any other Person shall be deemed
to Control such other Person, and (ii) the Corporation will not be deemed to be
a Related Party Affiliate of any Parent or such Parent's Related Party
Affiliates.
4. Supermajority and Unanimous Approval Requirements.
(a) Supermajority Items. For purposes of determining
whether or not there has been Board Action with respect to any of the following
matters ("SUPERMAJORITY Items"), so long as the holders of Series B Common Stock
are entitled to elect at least one Series B Common Stock Director, the
affirmative vote or written consent of seventy-five percent (75%) (rounded up to
the nearest whole number of directors) of the total number of the Series B
Common Stock Directors voting separately from the other directors of the
Corporation shall be required (such vote or consent, a "SUPERMAJORITY VOTE"):
(1) The merger, consolidation or other business
combination by the Corporation or any Controlled Affiliate of the Corporation
into or with any other entity, other than any transaction involving only the
Corporation and/or one or more directly or indirectly wholly owned Subsidiaries
of the Corporation; provided, however, that the provisions of this paragraph
shall not apply to transactions which have been approved in accordance with
subparagraphs (2) or (4) below, or which would not otherwise require approval
thereunder.
(2) The acquisition (other than an acquisition
covered by subparagraph (4) below) by the Corporation or any Controlled
Affiliate of the Corporation of any assets or properties (including stock or
other equity interests of a third party) in one transaction or a series of
related transactions, which assets or properties have an aggregate purchase
price or value in excess of 20% of the fair market value of the assets of the
Corporation (on a consolidated basis).
(3) The disposition by the Corporation or any
Controlled Affiliate of the Corporation of any assets or properties (including
stock or other equity interests of a third party) in one transaction or a series
of related transactions having an aggregate value in excess of fifty percent
(50%) of the fair market value of the assets of the Corporation (on a
consolidated basis).
<PAGE> 20
(4) The acquisition by the Corporation or any
Controlled Affiliate of the Corporation of any assets or properties in exchange
for or in consideration of the sale or issuance to any Person of capital stock
of the Corporation which sale or issuance would constitute in excess of 16-2/3%
of the fully diluted shares of the Corporation (on a common stock equivalent
basis) (including such shares to be issued or sold); provided, however, that the
provisions of this subparagraph (4) shall not be deemed to apply to any
issuances or sales of capital stock solely for cash.
(5) The approval of the Chief Executive Officer of
the Corporation, and the removal of any Chief Executive Officer and the
appointment of any successor thereto.
(6) Any actions resulting in the voluntary
dissolution or liquidation of the Corporation, or the initiation of any
proceedings relating to the voluntary bankruptcy of the Corporation.
(7) Any amendment, alteration or repeal of any
provision of this Certificate or the Bylaws of the Corporation, other than (A)
the filing of any Certificate of Designation or amendment to this Certificate
establishing any class or series of Series Preferred Stock of the Corporation,
the establishment, issuance and sale of which would not require a Supermajority
Vote pursuant to subparagraph (8) below, and (B) any amendment to or a
modification of this Certificate which is necessary in order to implement any
action which has been otherwise approved by a Supermajority Vote.
(8) The (A) establishment, creation or designation
of any additional class or series of capital stock or any security having a
direct or indirect equity participation in the Corporation and (B) sale or
issuance of (i) shares of capital stock or securities having a direct or
indirect equity participation in the Corporation, or (ii) warrants, options or
rights to acquire shares of capital stock or securities having a direct or
indirect equity participation in the Corporation or securities convertible into
or exchangeable for capital stock or any security having a direct or indirect
equity participation in the Corporation, in each case, which capital stock or
other security constitutes Special Voting Stock; provided that no capital stock
of the Corporation, the issuance of which would, in accordance with this
paragraph 4, require a Unanimous Vote of the Series B Common Stock Directors,
shall be issued without such Unanimous Vote of the Series B Common Stock
Directors.
(9) Any increase during a calendar year in the
total number of shares of Series A Common Stock issued to, and reserved for
issuance to, management (including shares reserved for issuance upon exercise of
options, warrants or other rights) pursuant to all incentive compensation plans
(collectively, the "MANAGEMENT STOCK PLAN") where the total of all such
increases during that calendar year (including the proposed increase which is
the subject of consideration) exceeds the Maximum Amount (as defined below) for
such calendar year. The "MAXIMUM AMOUNT" for any calendar year equals
<PAGE> 21
(i) 0.04 multiplied by the number of shares
of Common Stock outstanding on a fully diluted basis, assuming the issuance of
all shares reserved for issuance in the Management Stock Plan prior to such
increase and the assumed issuance of shares upon the exercise of all other
outstanding options, warrants and other rights to acquire shares, as of the
close of business on December 31 of the immediately preceding calendar year (the
"BASE DATE") appropriately adjusted for any stock splits, stock dividends and
the like; plus
(ii) the excess, if any, of
(x) the Maximum Amount calculated as
of the close of business on December 31 of the calendar year immediately
preceding the Base Date appropriately adjusted for any stock splits, stock
dividends and the like, over
(y) the total number of shares (A)
added to the reserve under the Management Stock Plan in the calendar year in
which the Base Date occurs plus (B) issued under the Management Stock Plan in
the calendar year in which the Base Date occurs (other than any shares which had
previously been reserved prior to the calendar year in which the Base Date
occurs and are subsequently issued in the calendar year in which the Base Date
occurs), appropriately adjusted for any stock splits, stock dividends and the
like.
(10) (A) The declaration or payment of any dividend
on, or the making of any distribution to holders of, equity securities of any
Controlled Affiliate of the Corporation (other than a wholly owned Subsidiary)
or (B) the purchase, redemption or other acquisition for value of any equity
securities of any Controlled Affiliate of the Corporation or any options,
warrants or other rights to acquire such securities (other than a Permitted
Repurchase).
(11) The adoption of any budget which is or
contains a Non-Pro Rata Roll-Out Budget (as defined in the Master Distribution
Agreement).
(12) The appointment of any Outside Directors to
the .Com Committee following the IPO (other than the Corporation's Chief
Executive Officer and the members of the .Com Committee immediately prior to the
IPO).
(b) Unanimous Items. For purposes of determining whether
or not there has been Board Action with respect to the following matters
("UNANIMOUS ITEMS"), so long as the holders of Series B Common Stock are
entitled to elect at least one Series B Common Stock Director, the affirmative
vote or written consent of 100% of the total number of the Series B Common Stock
Directors voting separately from the other directors of the Corporation (such
vote or consent, a "UNANIMOUS VOTE") shall be required:
(1) Any amendments to or modifications of the items
listed in this paragraph 4 or the requisite vote or consent for approval
thereof.
(2) Any increase in the number of the Series B
Common Stock Directors.
<PAGE> 22
(3) Any modification of the rights of the holders
of the Series B or Series K Common Stock to designate and elect directors.
(4) The appointment of any directors (other than
the Corporation's Chief Executive Officer and the other initial members thereof
elected following the Filing Date or any Outside Directors elected in accordance
with subparagraph (a)(12) above), to the .Com Committee.
(5) Any amendment or modification to the
Specifications and Standards set forth in the Master Distribution Agreement
which would require the Operator Facilities (as defined in the Master
Distribution Agreement) of any Cable Parent to be capable of distributing or
providing Video Services (as defined in the Master Distribution Agreement) in
excess of the duration limitation set forth in the Specifications and Standards.
5. Approval of .Com and Promotional Agreements. The execution,
delivery and performance of any .Com Agreement or Promotional Agreement between
a Related Party or its Related Party Affiliates, on the one hand, and the
Corporation or its Affiliates, on the other hand (a "RELATED PARTY .COM
AGREEMENT" or a "RELATED PARTY PROMOTIONAL AGREEMENT," respectively), may be
approved by the Corporation pursuant to any of the following methods: (x)
approval by the authorized officers of the Corporation (without the approval of
the Board of Directors) to the extent such agreement contains the Corporation's
standard terms and conditions for agreements of that sort to the extent such
standard terms and conditions exist (i.e., the Corporation's applicable "rate
card"), (y) approval of a majority of the total number of members of the .Com
Committee or (z) approval by a majority of the Board of Directors, including all
of the Series B Common Stock Directors so long as the holders of Series B Common
Stock are entitled to elect at least one Series B Common Stock Director. The
Cable Parent which is, or whose Related Party Affiliate is, such Related Party
shall be entitled to select which of the foregoing methods pursuant to which
such approval will be sought, or if more than one method is to be sought, the
priority therefor. All decisions of the .Com Committee shall be made in
accordance with the policies and provisions for the .Com Agreements and
Promotional Agreements set forth in the Stockholders' Agreement. A Stockholder
who is or whose Related Party Affiliate is the Related Party whose .Com
Agreement or Promotional Agreement has been disapproved by the .Com Committee or
the Board pursuant to clause (y) or (z) above, as the case may be, shall be
entitled to a written explanation from the members of the .Com Committee or the
Board, as the case may be, voting against such approval. Nothing contained in
this section shall limit the right of the Directors under applicable law to
inspect any .Com Agreements or Promotional Agreements.
6. .Com Committee. There is hereby established a .Com Committee,
which shall have the power and authority provided herein, and the Board of
Directors shall cause members to be elected thereto pursuant to paragraphs 2 and
4 above. The .Com Committee shall have the following powers: to approve the
execution, delivery and performance of any Related Party .Com Agreement or
Related Party Promotional Agreement submitted to the .Com Committee pursuant to
paragraph 5 above. The .Com Committee shall report all of its actions to the
Board of Directors. The authorization to the .Com Committee shall not extend to
the approval of any
<PAGE> 23
.Com Agreement or Promotional Agreement that is not a Related Party .Com
Agreement or Related Party Promotional Agreement.
7. Powers of Board with Respect to Certain Committees.
Except upon the vote of a majority of the Board of Directors (including, so long
as the holders of Series B Common Stock are entitled to elect at least one
Series B Common Stock Director, all of the Series B Common Stock Directors), the
Board of Directors shall not (i) rescind, amend, repeal, supplement or otherwise
modify any action or determination made by the .Com Committee, (ii) remove any
member of the .Com Committee, (iii) amend any of the provisions of this
Certificate (including this paragraph 7 and the preceding paragraph 6) or the
Bylaws of this Corporation with respect to the .Com Committee, or (iv) dissolve
or terminate the .Com Committee.
SECTION C
LIMITATION ON LIABILITY AND INDEMNIFICATION
1. Limitation On Liability.
To the fullest extent permitted by the DGCL as the same
exists or may hereafter be amended, a director of the Corporation shall not be
liable to the Corporation or any of its stockholders for monetary damages for
breach of fiduciary duty as a director. Any repeal or modification of this
paragraph 1 shall be prospective only and shall not adversely affect any
limitation, right or protection of a director of the Corporation existing at the
time of such repeal or modification.
2. Indemnification.
(a) Right to Indemnification. The Corporation shall
indemnify and hold harmless, to the fullest extent permitted by applicable law
as it presently exists or may hereafter be amended, any Person who was or is
made or is threatened to be made a party or is otherwise involved in any action,
suit or proceeding, whether civil, criminal, administrative or investigative (a
"PROCEEDING") by reason of the fact that he, or a Person for whom he is the
legal representative, is or was a director or officer of the Corporation or is
or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust, enterprise or nonprofit entity, including service with respect to
employee benefit plans, against all liability and loss suffered and expenses
(including attorneys' fees) reasonably incurred by such Person. Such right of
indemnification shall inure whether or not the claim asserted is based on
matters which antedate the adoption of this Section C. The Corporation shall be
required to indemnify a Person in connection with a proceeding (or part thereof)
initiated by such Person only if the proceeding (or part thereof) was authorized
by the Board of Directors of the Corporation.
(b) Prepayment of Expenses. The Corporation shall pay the
expenses (including attorneys' fees) incurred in defending any proceeding in
advance of its final disposition, provided, however, that the payment of
expenses incurred by a director or officer in advance of the final disposition
of the proceeding shall be made only upon receipt of an undertaking by the
<PAGE> 24
director or officer to repay all amounts advanced if it should be ultimately
determined that the director or officer is not entitled to be indemnified under
this paragraph or otherwise.
(c) Claims. If a claim for indemnification or payment of
expenses under this paragraph is not paid in full within 60 days after a written
claim therefor has been received by the Corporation, the claimant may file suit
to recover the unpaid amount of such claim and, if successful in whole or in
part, shall be entitled to be paid the expense of prosecuting such claim. In any
such action the Corporation shall have the burden of proving that the claimant
was not entitled to the requested indemnification or payment of expenses under
applicable law.
(d) Non-Exclusivity of Rights. The rights conferred on any
Person by this paragraph shall not be exclusive of any other rights which such
Person may or hereafter acquire under any statute, provision of this
Certificate, the Bylaws of the Corporation, agreement, vote of stockholders or
disinterested directors or otherwise.
(e) Other Indemnification. The Corporation's obligation,
if any, to indemnify any Person who was or is serving at its request as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, enterprise or nonprofit entity shall be reduced by any amount
such Person may collect as indemnification from such other corporation,
partnership, joint venture, trust, enterprise or nonprofit entity.
3. Amendment or Repeal.
Any repeal or modification of the foregoing provisions of
this Section C shall not adversely affect any right or protection hereunder of
any Person in respect of any act or omission occurring prior to the time of such
repeal or modification.
<PAGE> 25
SECTION D
AMENDMENT OF BYLAWS
In furtherance and not in limitation of the powers conferred by
the laws of the State of Delaware, the Board of Directors, by action taken in
accordance with the provisions of the Bylaws of the Corporation is hereby
expressly authorized and empowered to adopt, amend or repeal any provision of
the Bylaws of the Corporation.
ARTICLE VI
TERM
The term of existence of the Corporation shall be perpetual.
ARTICLE VII
STOCK NOT ASSESSABLE
The capital stock of the Corporation shall not be assessable. It
shall be issued as fully paid, and the private property of the stockholders
shall not be liable for the debts, obligations or liabilities of the
Corporation. This Certificate shall not be subject to amendment in this respect.
ARTICLE VIII
DGCL SECTION 203
The Corporation shall not be governed by Section 203 of the DGCL.
<PAGE> 26
IN WITNESS WHEREOF, said corporation has caused this Amended and
Restated Certificate of Incorporation to be executed and attested by its duly
authorized officers on this ___ day of May, 1999.
AT HOME CORPORATION
By: /s/ Thomas A. Jermoluk
--------------------------------
Name: Thomas A. Jermoluk
Title: President
Attest: /s/ David G. Pine
---------------------------
Name: David G. Pine
Title: Secretary
<PAGE> 1
EXHIBIT 5.01
June 1, 1999
At Home Corporation
425 Broadway Road
Redwood City, CA 94063
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form S-8
(the "REGISTRATION STATEMENT") filed by you with the Securities and Exchange
Commission (the "COMMISSION") on or about June 1, 1999 in connection with the
registration under the Securities Act of 1933, as amended, of an aggregate of
21,782,452 shares of your Series A Common Stock, $0.01 par value (the "SERIES A
COMMON STOCK"), subject to issuance as follows:
(i) an aggregate of 8,675,000 additional shares of Series A Common
Stock, subject to issuance by you under your 1997 Equity
Incentive Plan, as amended through May 28, 1999 (the "AT HOME
PLAN");
(ii) an aggregate of 12,857,452 shares of Series A Common Stock which
are issuable upon the exercise of options originally granted by
(a) Excite, Inc., a California corporation and your subsidiary
("EXCITE"), under (1) the Excite 1995 Equity Incentive Plan (the
"EXCITE 1995 PLAN"), (2) the Excite 1996 Equity Incentive Plan
(the "EXCITE 1996 PLAN") and (3) the Excite 1996 Directors Stock
Option Plan (the "EXCITE DIRECTORS PLAN"), (b) Netbot, Inc., a
Delaware corporation and your subsidiary ("NETBOT"), under the
Netbot 1996 Stock Option Plan (the "NETBOT 1996 PLAN"), (c)
MatchLogic, Inc., a Delaware corporation and your subsidiary
("MATCHLOGIC"), under the MatchLogic 1997 Equity Compensation
Plan (the "MATCHLOGIC 1997 PLAN"), (d) Throw, Inc., a Washington
corporation and your subsidiary ("THROW"), under the Throw 1996
Option Plan (the "THROW 1996 PLAN") and (e) Classifieds2000,
Inc., a California corporation and your subsidiary
("CLASSIFIEDS2000"), under the Classifieds2000 1996 Stock Option
Plan (the "CLASSIFIEDS2000 1996 PLAN"), that have been assumed by
you and converted into options to purchase shares of Series A
Common Stock (the "ASSUMED OPTIONS") pursuant to the Agreement
and Plan of Reorganization, dated as of January 19, 1999, by and
among you, Countdown Acquisition Corp. and Excite (the "PLAN OF
REORGANIZATION"); and
<PAGE> 2
(iii) an aggregate of 250,000 shares of the Series A Common Stock
subject to issuance by you upon the exercise of purchase rights
granted under Excite's 1996 Employee Stock Purchase Plan (the
"EXCITE 1996 ESPP PLAN").
In rendering this opinion, we have examined the following:
(1) your registration statement on Form S-1 (File Number 333-27323)
declared effective by the Commission on July 11, 1997, together
with the Exhibits filed as a part thereof (the "S-1 REGISTRATION
STATEMENT");
(2) your registration statement on Form 8-A filed with the Commission
on June 13, 1997, together with the order of effectiveness issued
by the Commission therefor on July 11, 1997;
(3) the Registration Statement, together with the Exhibits filed as a
part thereof;
(4) the prospectuses prepared in connection with the Registration
Statement;
(5) the Nasdaq National Market Listing of Additional Shares
Notifications prepared in connection with the Registration
Statement;
(6) the At Home Plan and related award grant and exercise agreement
forms;
(7) the Excite 1995 Plan and related award grant and exercise
agreement forms;
(8) the Excite 1996 Plan and related award grant and exercise
agreement forms;
(9) the Excite Directors Plan and related award grant and exercise
agreement forms;
(10) the Netbot 1996 Plan and related award grant and exercise
agreement forms;
(11) the MatchLogic 1997 Plan and related award grant and exercise
agreement forms;
(12) the Throw 1996 Plan and related award grant and exercise
agreement forms;
(13) the Classifieds2000 1996 Plan and related award grant and
exercise agreement forms;
(14) Excite 1996 ESPP Plan;
(15) the Plan of Reorganization;
(16) your Fifth Amended and Restated Certificate of Incorporation
filed with the Delaware Secretary of State on May 28, 1999 and
your Second Amended and Restated Bylaws;
<PAGE> 3
(17) the minutes of meetings and actions by written consent of your
stockholders and Board of Directors that are contained in your
minute books that are in our possession;
(18) A certificate from your transfer agent dated of even date
herewith, verifying the number of your issued and outstanding
shares of capital stock as of the date hereof and a list of
outstanding options to purchase shares of your capital stock that
was prepared by you and dated June 1, 1999 verifying the number
of such issued and outstanding securities); and
(19) a Management Certificate addressed to us and dated of even date
herewith executed by you containing certain factual and other
representations.
We have also have confirmed the continued effectiveness of your
registration under the Securities Act of 1934, as amended, by telephone call to
the offices of the Commission and have confirmed your eligibility to use Form
S-8.
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity and the completeness of all documents
submitted to us as originals, the conformity to originals and completeness of
all documents submitted to us as copies, the legal capacity of all natural
persons executing the same, the lack of any undisclosed termination,
modification, waiver or amendment to any document reviewed by us and the due
authorization, execution and delivery of all documents where due authorization,
execution and delivery are prerequisites to the effectiveness thereof.
As to matters of fact relevant to this opinion, we have relied solely
upon our examination of the documents referred to above and have assumed the
current accuracy and completeness of the information obtained from public
officials and records referred to above. We have made no independent
investigation or other attempt to verify the accuracy of any of such information
or to determine the existence or non-existence of any other factual matters;
however, we are not aware of any facts that would cause us to believe that the
opinion expressed herein is not accurate.
We are admitted to practice law in the State of California, and we
express no opinion herein with respect to the application or effect of the laws
of any jurisdiction other than the existing laws of the United States of America
and the State of California and (without reference to any case law or secondary
sources) the existing Delaware General Corporation Law.
In connection with our opinion expressed below, we have assumed that, at
or prior to the time of the delivery of any shares of Series A Common Stock, the
Registration Statement will have been declared effective under the Securities
Act of 1933, as amended, that the registration will apply to such shares of
Series A Common Stock and will not have been modified or rescinded or been made
subject to any Commission stop order and that there will not have occurred any
change in law affecting the validity or enforceability of such shares of Series
A Common Stock.
<PAGE> 4
Based upon the foregoing, it is our opinion that:
(i) the 8,675,000 additional shares of Series A Common Stock that may
be issued and sold by you upon the exercise of stock options, the
purchase of restricted stock or awards of stock bonuses awarded
or to be awarded under the At Home Plan, when issued and sold in
accordance with the At Home Plan and the stock option, restricted
stock purchase agreement or stock bonus agreements to be entered
into thereunder, and in the manner referred to in the relevant
prospectus associated with the At Home Plan and the Registration
Statement, will be validly issued, fully paid and nonassessable;
(ii) the 12,857,452 shares of Series A Common Stock that may be issued
and sold by you pursuant to exercise of the Assumed Options, when
issued and sold in the manner referred to in the prospectus
associated with the Assumed Options and the registration
statement and in accordance with the Excite 1995 Plan, the Excite
1996 Plan, the Excite Directors Plan, the Netbot 1996 Plan, the
MatchLogic 1997 Plan, the Throw 1996 Plan and the Classifieds2000
1996 Plan pursuant to which the Assumed Options were granted,
will be validly issued, fully paid and nonassessable; and
(iii) the 250,000 shares of Series A Common Stock that may be issued
and sold by you upon the exercise of purchase rights granted
under the Excite 1996 ESPP Plan, when issued and sold in
accordance the Excite 1996 ESPP Plan and the restricted stock
purchase agreement to be entered into thereunder, and in the
manner referred to in the relevant prospectus and registration
statement associated with the Excite 1996 ESPP Plan, will be
validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement, the prospectus constituting a part thereof and any
amendments thereto.
This opinion speaks only as of its date and we assume no obligation to
update this opinion should circumstances change after the date hereof. This
opinion is intended solely for your use as an exhibit to the Registration
Statement for the purpose of the above sale of the Series A Common Stock and is
not to be relied upon for any other purpose.
Very truly yours,
FENWICK & WEST LLP
By: /s/ Jeffrey R. Vetter
------------------------------------
Jeffrey R. Vetter, a Partner
<PAGE> 1
EXHIBIT 23.02
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) of At Home Corporation pertaining to the 1997 Equity Incentive Plan of At
Home Corporation; the 1995 Equity Incentive Plan, the 1996 Equity Incentive
Plan, the 1996 Directors Stock Option Plan and the 1996 Employee Stock Purchase
Plan of Excite, Inc.; the 1996 Stock Option Plan of Netbot, Inc.; the 1997
Equity Incentive Plan and the 1996 Stock Option Plan of MarchLogic, Inc.; the
1996 Option Plan of Throw, Inc. and the 1996 Stock Option Plan of Classifieds
2000, Inc. of our report dated January 19, 1999 with respect to the consolidated
financial statements of At Home Corporation included in its Annual Report (Form
10-K) for the year ended December 31, 1998, as amended, filed with the
Securities and Exchange Commission.
San Jose, California
May 27, 1999
