AT&T CORP.
32 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10013
August 28, 2000
At Home Corporation
425 Broadway Street
Redwood City, California 94063
Re: Excite@Home Voting Agreement
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Ladies and Gentlemen:
Reference is hereby made to the letter agreement dated March 28,
2000 and the term sheets attached thereto, among At Home Corporation
("EXCITE@HOME"), AT&T Corp. ("AT&T"), Comcast Corporation ("COMCAST") and Cox
Communications, Inc. ("COX", and together with AT&T and Comcast, the "PRINCIPAL
CABLE PARTNERS") (such letter agreement and term sheets herein referred to as
the "MARCH 28 LETTER AGREEMENT"), pursuant to which, among other things, AT&T
agreed to extend its distribution relationship with Excite@Home until June 4,
2008, each of Comcast and Cox agreed to extend its distribution relationship
with Excite@Home until June 4, 2006, and Excite@Home agreed to grant to each
Principal Cable Partner, a warrant to purchase two shares of Excite@Home's
Series A Common Stock for each home passed by the cable system of such Principal
Cable Partner.
In consideration of the facts and the mutual promises set forth in
the foregoing paragraph, AT&T agrees that as long as there are not fewer than
10,000,000 shares of Excite@Home Series B Common Stock outstanding, it shall
vote all of its shares of such Series B Common Stock in favor of the election of
the Chief Executive Officer of Excite@Home to the Board of Directors of
Excite@Home as an Additional Director (as such term is defined in Excite@Home's
certificate of incorporation.
The effectiveness of this Letter Agreement is subject to stockholder
approval of Excite@Home's amendment of its certificate of incorporation, receipt
of any required approvals by the Nasdaq Stock Market, Inc. and receipt of any
other consents, approvals and waivers as are necessary to complete the
transactions contemplated by the March 28 Letter Agreement. The date of
effectiveness of this Letter Agreement shall be referred to herein as the
Effective Date.
If the Effective Date shall not have occurred on or prior to
September 30, 2000, then either AT&T or Excite@Home may terminate this Letter
Agreement by sending written notice to the other party and if the March 28
Letter Agreement is terminated, this Letter Agreement shall automatically be
terminated (either event referred to herein as a "TERMINATION"). Following any
such Termination, this Letter Agreement shall be null and void and of no further
force and effect.
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Each of AT&T and Excite@Home represents that it has the requisite
power and authority to enter into this Letter Agreement and to consummate the
transactions contemplated by this Letter Agreement. The execution and delivery
of this Letter Agreement by each of AT&T and Excite@Home has been duly
authorized by all necessary action. This Letter Agreement has been duly executed
and delivered by each of AT&T and Excite@Home and constitutes the legal, valid
and binding obligation of each of AT&T and Excite@Home and, to the extent
applicable, the members of such party's Stockholder Group (as such term is
defined in that certain Amended and Restated Stockholders' Agreement, dated as
of July 16, 1997, by and among Excite@Home, TCI Internet Holdings, Inc., Cox
Teleport Providence, Inc., Comcast PC Investments, Inc., Kleiner, Perkins,
Caufield & Byers VII, KPCB Information Sciences Zaibatsu Fund II and James
Clark), enforceable against such party and the applicable members of its
Stockholder's Group, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting the rights of
creditors generally and by general principles of equity.
This Letter Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement
executed by the parties hereto.
This Letter Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without regard to the
conflicts of law rules of such state. The parties hereto agree that irreparable
damage would occur in the event any provision of the Letter Agreement was not
performed in accordance with the terms hereof, and that the parties shall be
entitled to specific performance (subject to the moving party sustaining the
applicable burden necessary to obtain such relief including as to the inadequacy
of money damages) of the terms hereof in addition to any other remedy at law or
in equity.
This Letter Agreement may be executed in counterparts, each of which
shall be deemed an original and all of which shall constitute one and the same
instrument.
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If the foregoing is in accordance with your understanding, please
indicate your agreement by signing below, at which time this letter will
constitute a binding Letter Agreement between us.
Very truly yours
AT&T CORP.
By: /s/ Marilyn J. Wasser
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Name: Marilyn J. Wasser
Title: Vice President - Law and
Secretary
Accepted and Agreed as of
the date first above written:
AT HOME CORPORATION
By: /s/George Bell
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George Bell
Chief Executive Officer and
Chairman of the Board
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