{"id":43393,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/escrow-agreement-at-home-corp-charles-m-hazard-jr-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"escrow-agreement-at-home-corp-charles-m-hazard-jr-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/escrow-agreement-at-home-corp-charles-m-hazard-jr-and.html","title":{"rendered":"Escrow Agreement &#8211; At Home Corp., Charles M. Hazard Jr. and Narrative Communications Corp."},"content":{"rendered":"<pre>\n                                ESCROW AGREEMENT\n\n\n     This ESCROW AGREEMENT (the 'AGREEMENT') is entered into as of December 30,\n1998 (the 'EFFECTIVE DATE'), by and among At Home Corporation, a Delaware\ncorporation ('ACQUIRER'), Charles M. Hazard, Jr., as representative (the\n'REPRESENTATIVE') of all of the holders of capital stock (the 'STOCKHOLDERS') of\nNarrative Communications Corp., a Delaware corporation ('TARGET'), and State\nStreet Bank and Trust Company of California, N.A., as Escrow Agent (the 'ESCROW\nAGENT').\n\n     WHEREAS, Acquirer, Target and Transitory Corporation, a Delaware\ncorporation and wholly owned subsidiary of Acquirer ('MERGER SUB'), have entered\ninto an Agreement and Plan of Merger (the 'PLAN') dated as of December 17, 1998,\npursuant to which Merger Sub will merge with and into Target in a reverse\ntriangular merger (the 'MERGER'), with Target to be the surviving corporation of\nthe Merger.  Capitalized terms used in this Agreement and not otherwise defined\nherein, including without limitation 'EFFECTIVE TIME', 'EXCHANGE AGENT',\n'EXCHANGE SHARES', 'TOTAL EXCHANGE SHARES' and 'TOTAL TARGET SHARES', shall have\nthe meanings given to such terms in the Plan;\n\n     WHEREAS, Section 2.4 of the Plan provides that, at the Effective Time,\nAcquirer will be entitled to withhold from the Stockholders a certain percentage\nof the shares of Acquirer Series A Common Stock issuable to the Stockholders at\nthe Effective Time for the purpose of securing the Stockholders' indemnification\nobligations to Acquirer and the other Indemnified Persons pursuant to the terms\nand conditions set forth in Article 11 of the Plan and in this Agreement;\n\n     WHEREAS, the Stockholders and the Representative are entering into this\nAgreement as a material inducement and consideration for Acquirer to enter into\nthe Plan and to consummate the transactions contemplated therein and as a\nmaterial inducement and condition precedent to consummation of the Merger; and\n\n     WHEREAS, the parties desire to set forth in this Agreement the terms and\nconditions pursuant to which the Escrow Shares shall be deposited in, held in\nand delivered from an escrow account.\n\n     NOW, THEREFORE, in consideration of the facts stated in the foregoing\nrecitals and the mutual promises hereinafter set forth, the parties hereby agree\nas follows: \n\n \n  1.  ESCROW AND INDEMNIFICATION\n\n      1.1  Escrow.\n           ------ \n\n           (a) Definitions of Primary Terms.\n               ---------------------------- \n\n               (i)   The term 'ESCROW SHARES' is defined as the Exchange Shares\nthat Acquirer shall withhold from the Stockholders, which shall consist of a\npercentage (the 'ESCROW PERCENTAGE') of the Exchange Shares to be issued to all\nStockholders after the Effective Time and upon the surrender of their Target\nCertificates, rounded down to the nearest whole number of shares. The Escrow\nPercentage shall be expressed as a fraction, the numerator of which is 10% of\nthe Total Exchange Shares (defined in Section 2.2(a)(ii)(B) of the Plan) and the\ndenominator of which is the number of Exchange Shares actually issuable in the\nMerger to the Stockholders after the Effective Time and upon the surrender of\ntheir Target Certificates. The term Escrow Shares shall also refer to Additional\nEscrow Shares (defined in Section 2.1(b), although the Additional Escrow Shares\nmay, in certain instances, be referred to separately in this Agreement) and the\nstock certificates representing the Escrow Shares and Additional Escrow Shares,\nwhen appropriate.\n\n               (ii)  The term 'ESCROW PERIOD' is defined as that time period\nbeginning at the Effective Time and ending on the 'RELEASE DATE', which shall be\nten (10) business days after publication of audited consolidated financial\nstatements of Acquirer for the fiscal year ended December 31, 1999, but in any\nevent no later than March 31, 2000.\n\n           (b) Deposit of Escrow Shares.  On the Closing Date, Acquirer will \n               ------------------------\ndeposit with the Exchange Agent the Exchange Shares, including shares to be\nsubsequently held in escrow. The Exchange Agent will give the Escrow Agent\nprompt written notice of the Closing Date and Effective Time of the Merger.\nPromptly after the Effective Time, the Exchange Agent will issue to the Escrow\nAgent the Escrow Shares to be withheld from the Stockholders upon the surrender\nof their Target Certificates, each registered in the name of the applicable\nStockholder.\n\n           (c) Delivery of Stock Powers.  Promptly after the Effective Time, \n               ------------------------\nbut in any event within ten (10) business days after the Effective Time, each\nStockholder will deliver to the Escrow Agent a duly endorsed stock power (a\n'STOCK POWER') substantially in the form attached as Exhibit A. In the event any\n                                                     ---------         \nAdditional Escrow Shares (defined in Section 2.1(b)) are issued, or if the\nEscrow Agent reasonably requires an additional Stock Power(s) to effect a\ntransfer, each Stockholder will, upon request, promptly execute and deliver an\nadditional Stock Power to the Escrow Agent.\n\n           (d) Legends.  Stock certificates representing Escrow Shares will\n               -------\n(until they are released to the Stockholders or Acquirer in accordance with this\nAgreement) bear the following legend indicating that they are subject to this\nAgreement:\n\n                                       2\n\n \n     'THE SECURITIES REPRESENTED HEREBY MAY BE OFFERED, SOLD OR\n     OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED ONLY IN ACCORDANCE\n     WITH THE TERMS OF AN ESCROW AGREEMENT AMONG THE ISSUER, THE\n     HOLDER THEREOF AND STATE STREET BANK AND TRUST COMPANY OF\n     CALIFORNIA, N.A. A COPY OF SUCH AGREEMENT IS ON FILE AT THE\n     PRINCIPAL OFFICE OF THE ISSUER.'\n\n          1.2  Indemnification.  Acquirer and the other Indemnified Persons are\n               ---------------                                                 \nentitled to be indemnified by the Stockholders pursuant to the terms of Article\n11 of the Plan against any Target Damages during the Escrow Period.  All claims\nfor Target Damages under Article 11 of the Plan must be initiated prior to the\nexpiration of the Escrow Period.  Each of the Stockholders has agreed to the use\nof the Escrow Shares as collateral for these indemnity obligations, subject to\nthe terms and limitations set forth in Article 11 of the Plan and in this\nAgreement.\n\n     2.   OWNERSHIP INTERESTS IN AND RELEASE OF\n          THE ESCROW SHARES\n\n          2.1  Stockholders' Interests in the Escrow Shares.\n               -------------------------------------------- \n\n               (a) Individual Stockholders' Interests. The Escrow Shares shall\n                   ----------------------------------\nbe evidenced by certificates issued in the name of each Stockholder.  All of the\nEscrow Shares shall be deemed to be issued and outstanding capital stock of\nAcquirer.\n\n               (b) Dividends. If Acquirer declares any cash dividends, dividends\n                   ---------\npayable in other property or other distributions of any kind with respect to\nEscrow Shares held by the Escrow Agent, Acquirer will issue such distributions\ndirectly to the Stockholders. Stock dividends that are issued in order to effect\na stock split of Acquirer's Series A Common Stock on Escrow Shares declared\nduring the Escrow Period ('ADDITIONAL ESCROW SHARES') will be delivered promptly\nto the Escrow Agent, held in escrow and distributed to the Stockholders in the\nsame manner and in the same proportions as the Escrow Shares. For all purposes\nof this Agreement, the Additional Escrow Shares will be treated the same as the\nEscrow Shares. Unless and until the Escrow Agent receives certificates\nrepresenting Additional Escrow Shares, it may assume without inquiry that no\nAdditional Escrow Shares have been, or are required to be, issued and that the\nstock certificates that the Escrow Agent possesses represent all of the Escrow\nShares.\n\n               (c) Voting and Other Rights of Ownership. While the Escrow Shares\n                   ------------------------------------\nremain in the possession of the Escrow Agent, each Stockholder beneficially\nowning Escrow Shares will retain and will be able to exercise with respect to\nsuch Escrow Shares: (i) voting rights, and (ii) all other incidents of ownership\nof such Escrow Shares which are not inconsistent with the terms of this\nAgreement, including the right to cause the tender of such Escrow Shares in a\ntender offer for Acquirer Series A Common Stock. Acquirer, not the Escrow Agent,\nwill be responsible for furnishing any proxy forms or other information\ngenerally distributed by Acquirer to its stockholders.\n\n                                       3\n\n \n          (d) No Transfers or Encumbrances.  Prior to the release of the Escrow\n              ----------------------------                                     \nShares by the Escrow Agent and delivery to each Stockholder pursuant to Section\n2.3, Stockholders may not sell, assign or otherwise transfer, nor place any\nEncumbrance on, any Escrow Shares or any beneficial interest therein, except:\n(i) for entity stockholders, to limited partners or members of such\nStockholders; (ii) transfers made for estate planning purposes; (iii) transfers\nby operation of law or laws of descent and distribution; and (iv) in connection\nwith a tender offer for Acquirer's Series A Common Stock.  In the case of any\npermitted transfer, the transferee will be subject to all terms and provisions\nof this Agreement. Also, prior to the release of the Escrow Shares by the Escrow\nAgent and delivery to each  Stockholder pursuant to Section 2.3, no Escrow\nShares nor any beneficial interest therein be taken or reached by any legal or\nequitable process in satisfaction of any debt or other liability of a\nStockholder, except to satisfy such Stockholder's obligations under Article 11\nof the Plan.  The Escrow Agent shall have no responsibility for determining or\nenforcing compliance with this paragraph, other than by retaining possession of\nthe Escrow Shares.\n\n          (e) Individual Stockholder Liability.  The maximum liability for any\n              --------------------------------                                \nTarget Damages under Section 11.2 of the Plan is set forth in Section 11.4 of\nthe Plan.  Payments for finally determined Claims (defined in Section 3.1) shall\nbe deducted from the Escrow Shares of each Stockholder pro rata in proportion to\neach Stockholder's respective percentage interest in the Escrow Shares;\nprovided, however, that the preceding limitation on Stockholder liability shall\nnot apply to damages set forth in Section 11.4(b) of the Plan and Acquirer\nand\/or the Indemnified Persons may hold the Stockholders liable (severally but\nnot jointly) to the full extent of any such damages.\n\n     2.2  Escrow Ledger.\n          ------------- \n\n          (a) Required Information.  The Escrow Agent shall create and maintain\n              --------------------                                             \na written record, in substantially the form attached as Exhibit B (the 'ESCROW\n                                                        ---------             \nLEDGER') of: (1) each Stockholder's name and address; (2) each Stockholder's\ninterest in the Escrow Shares by number of shares; (3) each Stockholder's\ninterest in other assets held in escrow; (4) each Stockholder's percentage\ninterest in the total Escrow Shares; (5) each Stockholder's interest in Escrow\nShares subject to pending Contested Claims (defined in Section 4.3); and (6)\nEscrow Shares to be released to each Stockholder on the Release Date.  The\nEscrow Ledger shall also reflect the total number of Escrow Shares remaining in\nescrow.\n\n          (b) Adjustments to the Ledger.  The Escrow Agent shall adjust the\n              -------------------------                                    \nEscrow Ledger to reflect changes in each Stockholder's interests in the Escrow\nShares.  This duty will continue until the Escrow Agent is required to deliver\neach Stockholder's Escrow Shares pursuant to Section 2.3.  Absent manifest\nerror, all of the Escrow Agent's determinations as to the Escrow Ledger shall be\nbinding and conclusive on all parties to this Agreement.  Adjustments to the\nLedger shall include, but are not limited to, the following:\n\n              (i) Adjustments for Capital Changes.  The Escrow Agent shall \n                  -------------------------------\nadjust the Escrow Ledger to reflect the issuance of Additional Escrow Shares\npursuant to Section 2.1(b).\n\n                                       4\n\n \n               (ii)  Adjustments for Claims. The Escrow Agent shall deduct\n                     ----------------------\nEscrow Shares that become subject to pending Contested Claims of Acquirer or\nother Indemnified Persons from column 6 of each Stockholder's account and add\nsuch Escrow Shares to column 5 of each Stockholder's account. The Escrow Agent\nshall deduct Escrow Shares that are charged and allocated to each Stockholder's\naccount pursuant to Article 4 in satisfaction of Claims by Acquirer or other\nIndemnified Persons from columns 2-6, as appropriate.\n\n       2.3  Release of Escrow Shares to Stockholders.\n            ---------------------------------------- \n\n            (a) Release of Escrow Shares Generally.  On the Release Date, in\n                ----------------------------------                          \naccordance with Section 2.3(c), the Escrow Agent shall certify the Escrow Share\nbalances reflected in the Escrow Ledger as of that date and release the\nappropriate number of Escrow Shares to each Stockholder as designated in column\n6 of the Escrow Ledger, which shall equal such Stockholder's original Escrow\nShares and Additional Escrow Shares, minus: (i) any Escrow Shares attributable\nto such Stockholder that were returned to Acquirer in accordance with Article 4\nin satisfaction of a Claim(s) by Acquirer or another Indemnified Person(s), and\n(ii) any Escrow Shares attributable to such Stockholder that are subject to\npending Claims of Acquirer or other Indemnified Persons, to be held pursuant to\nSection 2.3(b).\n\n            (b) Escrow Shares Subject to Pending Claims.\n                --------------------------------------- \n \n                (i)   Upon the Release Date and thereafter, the Escrow Agent\nshall continue to hold any Escrow Shares that are subject to pending Claims\nuntil the thirty day period in Section 4.2 expires. At that time, the Escrow\nAgent shall, as appropriate, either return the Escrow Shares subject to such\nclaim pursuant to Section 4.2, or continue to hold the Escrow Shares subject to\nsuch Claim pursuant to Section 2.3(b)(ii).\n\n                (ii)  Upon the Release Date and thereafter, the Escrow Agent\nshall continue to hold any Escrow Shares that are subject to Contested Claims of\nAcquirer or other Indemnified Persons, as designated in column 5 of the Escrow\nLedger, until the Escrow Agent receives written notice of resolution of each\nspecific Claim pursuant to Section 4.3(h). After the Escrow Agent receives such\nnotice, in accordance with Section 2.3(c), the Escrow Agent shall: (a) either\ndeliver or instruct the Exchange Agent to deliver to each Stockholder the number\nof Escrow Shares, if any, due to each Stockholder in accordance with the\nresolution of the Claim; (b) if applicable, charge and allocate Escrow Shares to\neach Stockholder in satisfaction of the resolution of the Claim and either\nreturn or instruct the Exchange Agent to return such Escrow Shares back to\nAcquirer; and (c) notify the Representative in writing of any deduction of\nEscrow Shares as promptly as reasonably practicable. The Escrow Agent shall make\nthe appropriate entries in the Escrow Ledger.\n\n            (c) Procedure for Release and Delivery.  Within seven (7) business\n                ----------------------------------                            \ndays after the Release Date (or with respect to Escrow Shares held pursuant to\nSection 2.3(b), within seven (7) business days after the Escrow Agent's receipt\nof written notice of a resolution of a Claim pursuant to Section 4.3(h)), the\nEscrow Agent shall deliver, or instruct the Exchange \n\n                                       5\n\n \nAgent to deliver, the Escrow Shares to each Stockholder by mailing (by\nregistered or certified mail, return receipt requested) by express courier to\nthe address set forth opposite each Stockholder's name on the Escrow Ledger (or\nsuch other address as provided in writing by the Representative to the Escrow\nAgent). No fractional Escrow Shares will be delivered; instead, Acquirer will\npay cash in lieu of any fractions of Escrow Shares in an amount equal to the\nproduct of such fraction multiplied by the value of an Escrow Share as\ndetermined in accordance with Section 4.5. The Escrow Agent and Acquirer will\ncooperate to determine the amounts of such cash payments in lieu of fractional\nshares to be made, and Acquirer will notify the Escrow Agent after such payments\nhave been made.\n\n     3.   CLAIMS\n\n          3.1  'Claim' Defined.  As used herein, the term 'CLAIM' means a claim\n               ---------------                                                 \nfor indemnification under Article 11 of the Plan made by Acquirer or by any\nother Indemnified Person.  Acquirer agrees that it will make Claims only as\npermitted by Article 11 of the Plan.\n \n          3.2  Notice of Claim.\n               --------------- \n \n               (a) When a Notice of Claim is Required.  An officer of Acquirer\n                   ----------------------------------\nshall execute and deliver written notice of a Claim (a 'NOTICE OF CLAIM') to the\nRepresentative and the Escrow Agent as promptly as reasonably practicable, and\nin no event after the Release Date, upon:\n \n                   (i)   Acquirer's discovery of any inaccuracy,\nmisrepresentation or breach of or default in connection with any of the\nprovisions of Section 11.2 of the Plan; or\n \n                   (ii)  Acquirer's receipt of verbal or written notice of an\nOrder or Proceeding brought by any third Person against Acquirer and\/or any\nIndemnified Person that is based upon or includes assertions that would, if\ntrue, constitute an inaccuracy, misrepresentation, breach of or default in\nconnection with any of the provisions of Section 11.2 of the Plan, (a 'THIRD\nPARTY PROCEEDING');\n\n               (b) Failure to Provide Notice of Claim.  Failure to provide such\n                   ----------------------------------                          \nnotice in a timely manner shall not reduce Acquirer's indemnification rights or\nthe indemnification obligations of the Stockholders in this Agreement and under\nthe Plan, unless the failure to provide such notice materially impairs the\nindemnifying party's ability to defend the Claim, and then only to the extent of\nsuch impairment.\n\n          3.3  Contents of Each Notice of Claim.  Each Notice of Claim given by\n               --------------------------------                                \nAcquirer pursuant to Section 3.2 shall be set forth in writing and shall contain\nthe following information to the extent it is reasonably available to Acquirer:\n \n               (a) Statement of Damages.  The statement of damages shall \n                   --------------------    \ninclude: (i) the amount of Target Damages that Acquirer believes has actually\nbeen incurred by Acquirer \n\n                                       6\n\n \nand\/or any other Indemnified Person in connection with the Claim, reduced by any\nrecovery under policies of insurance, and (ii) Acquirer's good faith estimate of\nthe reasonably foreseeable maximum amount of the alleged Target Damages that\nwill ultimately be incurred by Acquirer and\/or any other Indemnified Person in\nconnection with such Claim, including without limitation any Target Damages from\na potential Third Party Proceeding.\n\n               (b) Statement of Basis for Damages.  The statement of basis for\n                   ------------------------------                             \ndamages shall include: (i) a brief description, in reasonable detail, of the\nfacts, circumstances or events giving rise to the alleged Target Damages based\non Acquirer's or any other affected Indemnified Person's good faith belief, and\n(ii) if applicable, specific references to the provisions of the Plan alleged to\nhave been breached.\n\n          3.4  Requirement of Resolution of Claims.  The Escrow Agent shall not\n               -----------------------------------                             \nact regarding any of the Escrow Shares held pursuant to a Notice of Claim until\nsuch Notice of Claim has been resolved in accordance with Article 4 and, in the\ncase of a Contested Claim, it receives appropriate notice pursuant to Section\n4.3(h).\n  \n     4.   RESOLUTION OF CLAIMS\n \n     Any Notice of Claim received by the Representative and the Escrow Agent\npursuant to Article 3 shall be resolved as follows:\n\n          4.1  Third Party Proceedings.  Acquirer shall have the right, at the\n               -----------------------                                        \nStockholders' expense, to select counsel in connection with conducting the\ndefense or handling each Third Party Proceeding and defend or handle such Third\nParty Proceeding in such manner as Acquirer may deem reasonably appropriate\n(including without limitation settlement or compromise of such Third Party\nProceeding); provided, however, that Acquirer: (a) shall keep the Representative\ntimely apprised of the status of such Third Party Proceeding, and (b) shall not\nsettle or compromise such Third Party Proceeding without the prior written\nconsent of the Representative (which consent shall not be unreasonably\nwithheld).  The reasonable costs and expenses incurred by Acquirer in connection\nwith such defense (including but not limited to reasonable attorneys' fees,\nother professionals' and experts' fees and court or arbitration costs) shall be\nincluded in the Target Damages for which Acquirer may seek indemnity pursuant to\na Claim made by Acquirer or an Indemnified Person hereunder.  If Acquirer\ndefends or handles the Third Party Proceeding, the Representative and the\nStockholders shall cooperate with Acquirer and shall be entitled to participate\nin the defense or handling of the Third Party Proceeding with their own counsel\nand at their own expense.\n \n          4.2  Uncontested Claims.  If, within thirty calendar days after the\n               ------------------                                            \nRepresentative receives a Notice of Claim, the Representative does not contest\nsuch Notice of Claim (an 'UNCONTESTED CLAIM') in a written notice delivered to\nthe Escrow Agent pursuant to Section 4.3, then the Escrow Agent shall: (a)\nimmediately charge and allocate against each Stockholder's accounts in the\nEscrow Ledger the number of Escrow Shares required, pursuant to Section 4.5, to\nsatisfy the amount of Target Damages specified in such Notice of Claim (reduced\n\n                                       7\n\n \nby any recovery to date under policies of insurance not reflected in the Notice\nof Claim); (b) update the Escrow Ledger to reflect the effect of the deduction\npursuant to Section 2.2(b)(ii); and (c) notify the Representative in writing of\nthe deduction of Escrow Shares as promptly as reasonably practicable.  The\nnumber of Escrow Shares deducted hereunder shall be charged to and allocated\namong the Stockholders pro rata according to each Stockholder's percentage\nshare, as set forth in column 4 of the Escrow Ledger.\n \n          4.3  Contested Claims.  If Acquirer and the Escrow Agent receive a\n               ----------------                                             \nwritten notice contesting all, or a portion of, a Notice of Claim within the\nthirty day period described in Section 4.2 (a 'CONTESTED CLAIM'), then the\nparties will work together in good faith to resolve their dispute for up to\nthirty (30) days.  If the Contested Claim is still not resolved, then: (a) such\nContested Claim shall be resolved by binding arbitration in accordance with the\nprovisions of this Section 4.3, and (b) the Escrow Agent shall continue to hold\nthe number of Escrow Shares sufficient, pursuant to Section 4.5, to satisfy the\nmaximum potential award to all Indemnified Persons under such Claim.  Any\nportion of the Notice of Claim that is not contested by the Representative in\naccordance with the foregoing provisions of this Section 4.3 shall be resolved\nas an Uncontested Claim in accordance with Section 4.2.  Resolution of contested\nclaims shall be subject to the following rules:\n \n               (a) Arbitration.  The parties agree that any Contested Claim \n                   -----------\nshall be submitted to mandatory, final and binding arbitration before\nJ.A.M.S.\/ENDISPUTE or its successor ('J.A.M.S.'), pursuant to the United States\nArbitration Act, 9 U.S.C. (S) 1 et seq. and that any such arbitration shall be\nconducted in San Mateo County, California. Either Acquirer or the Representative\nmay commence the arbitration process called for by this Agreement by filing a\nwritten demand for arbitration with J.A.M.S. and giving a copy of such demand to\neach of the other parties to this Agreement. The arbitration shall be conducted\nin accordance with the provisions of J.A.M.S's streamlined arbitration rules and\nprocedures in effect at the time of filing of the demand for arbitration,\nsubject to the provisions of this Section 4.3. The parties will cooperate with\nJ.A.M.S. and with each other in promptly selecting an arbitrator from J.A.M.S.'s\npanel of arbitrators in accordance with J.A.M.S.'s procedures for selecting\narbitrators, and in scheduling the arbitration proceedings in order to fulfill\nthe provisions, purposes and intent of this Agreement. The parties covenant that\nthey will participate in the arbitration in good faith, and that they will share\nin its costs in accordance with Section 4.3(b).\n \n               (b) Payment of Costs.  Each party will bear its own fees and\n                   ----------------\nexpenses in connection with the arbitration, except that Acquirer and the\nStockholders shall each bear 50% of the expense of deposits and advances\nrequired by the arbitrator; provided, however, that in the event that the\narbitrator finds that one party has substantially prevailed in the arbitration,\nthe prevailing party shall be entitled to an award of attorney's fees and costs,\narbitrator's fees and costs and all other costs of arbitration from the losing\nparty.\n\n               (c) Award.\n                   ----- \n \n                   (i) Upon the conclusion of any arbitration proceedings\nhereunder, the arbitrator shall render findings of fact and conclusions of law\nand a final written \n\n                                       8\n\n \narbitration award setting forth the basis and reasons for any decision reached\n(the 'FINAL AWARD') and shall deliver such documents to the Escrow Agent, the\nRepresentative and Acquirer. The Final Award shall constitute a conclusive\ndetermination of all issues in question, binding upon the Representative, the\nStockholders and Acquirer, and shall not be contested by the Representative, the\nStockholders or Acquirer. Awards for Target Damages shall be subject to the\nprovisions of Section 11.4 of the Plan.\n\n           (ii)   To the extent that the Final Award determines that Acquirer or\nany other Indemnified Person has actually incurred Target Damages in connection\nwith the Contested Claim through the date of the Final Award ('INCURRED\nDAMAGES'), the Final Award will set forth and award to Acquirer the amount of\nsuch damages, reduced by any recovery under policies of insurance to date that\nwere not specified in the Notice of Claim.  In addition, the Final Award will\nset forth an additional amount of Target Damages equal to the reasonably\nforeseeable amount of alleged Target Damages that the arbitrator determines\n(based on the evidence submitted by the parties in the arbitration) are\nreasonably likely to be incurred by Acquirer and any other Indemnified Person as\na result of the facts giving rise to the Contested Claim ('ESTIMATED DAMAGES'),\nwhich amount of Estimated Damages may, without limitation, include the amount of\ndamages claimed by a third party in an action brought against any Indemnified\nPerson based on alleged facts which, if true, would give rise to Target Damages.\nThe Escrow Agent will continue to hold Escrow Shares representing the Estimated\nDamages, in accordance with Section 4.5, in escrow, including, if appropriate,\nbeyond the expiration of the Escrow Period, until and to the extent that: (A)\nthe arbitrator deems that Acquirer has actually incurred such Estimated Damages,\nreduced by any recovery under policies of insurance to date that were not\nspecified in the Notice of Claim; (B) the arbitrator deems that Acquirer will\nnot actually incur any additional Estimated Damages; or (C) the parties come to\na written settlement agreement pursuant to Section 4.4.  Both Incurred Damages\nand Estimated Damages owed to Indemnified Persons are deemed to be Target\nDamages for purposes of this Agreement.\n \n           (iii)  Upon issuance and delivery of the Final Award pursuant to\nSection 4.3(c)(ii), and subject to receipt by the Escrow Agent of a written\nnotice of resolution of the Claim pursuant to Section 4.3(h), Acquirer will\nimmediately be entitled to recover: (A) the amount of any Incurred Damages\nawarded to Acquirer under such Final Award, and (B) the amount of Estimated\nDamages awarded under such Final Award to the extent that such Estimated Damages\ndo not arise from a Third Party Claim.  If the Final Award awards any Estimated\nDamages to Acquirer that arise from a Third Party Claim then: (A) if the actual\namount of such Estimated Damages is determined by a settlement agreement or a\nfinal judgment or arbitration award prior to the Resolution Date (defined\nherein) for the Contested Claim with respect to which such Estimated Damages\nwere awarded under the Final Award, then for purposes of this Agreement, the\namount of such Estimated Damages owed to Acquirer will be the amount so\ndetermined by such settlement agreement, judgment or award without regard to the\namount of Estimated Damages set forth in the Final Award, and (B) if the actual\namount of such Estimated Damages is not so determined prior to the Resolution\nDate, then for purposes of this Agreement, the amount of such Estimated Damages\nowed to Acquirer will be the amount of Target Damages awarded in the Final\nAward.  For the purposes of this Agreement, the term 'RESOLUTION DATE' for a\nContested Claim shall mean the later of: (A) the Release Date, or (B) \n\n                                       9\n\n\nthe date on which the last timely filed Notice of Claim is resolved through\nFinal Award, as a settled claim or otherwise.\n \n          (d)  Timing.  The Representative, Acquirer and the arbitrator shall\n               ------                                                        \nconclude each arbitration pursuant to this Section 4.3 as promptly as\npracticable.  Time is of the essence with regards to all aspects of this\nAgreement.\n \n          (e)  Terms of Arbitration.  The arbitrator chosen in accordance with\n               --------------------                                           \nthese provisions shall not have the power to alter, amend or otherwise affect\nthe terms of these arbitration provisions, the other provisions of this\nAgreement or the Plan.\n \n          (f)  Non-Exclusivity.  Although the use of arbitration in resolving\n               ---------------                                               \nContested Claims under this Agreement is mandatory, this does not limit any\nother rights or remedies which Acquirer may have, whether at law, in equity, by\ncontract or otherwise, all of which shall be cumulative (and not alternative).\nNothing in this Agreement shall limit any of the rights or remedies of Acquirer\nunder the Plan or any other Merger Agreement, and nothing in the Plan or any\nother Merger Agreement shall limit any of the rights or remedies of Acquirer\nunder this Agreement.\n \n          (g)  Multiplicity of Claims Permitted.  The assertion of any single\n               --------------------------------                              \nClaim for indemnification hereunder shall not bar Acquirer or an Indemnified\nPerson from asserting any other Claims hereunder.\n \n          (h)  Notice of Resolution of Claim. The Escrow Agent shall not deliver\n               ----------------------------- \nEscrow Shares held pursuant to a Contested Claim until the Escrow Agent receives\nappropriate notice. Such notice must consist of: (i) written notice of the\nresolution of such Claim executed by both the Representative and Acquirer; (ii)\na written settlement agreement pursuant to Section 4.4; (iii) delivery to the\nEscrow Agent of an appropriate final non-appealable order by a court of\ncompetent jurisdiction; or (iv) delivery to the Escrow Agent of a copy of the\nFinal Award of an arbitrator or court. The Escrow Agent shall act on such notice\nwithout further inquiry in accordance with Sections 2.3(b) and (c).\n \n     4.4  Settled Claims.  If a Claim (including a Contested Claim) is\n          --------------                                              \nsettled by a written settlement agreement executed by the Representative and\nAcquirer, then the Representative and Acquirer shall promptly deliver such\nwritten settlement agreement to the Escrow Agent with written instructions on\nthe appropriate charges or adjustments to be made to the Escrow Ledger, and the\nEscrow Agent shall promptly release and\/or return the Escrow Shares subject to\nsuch claim in accordance with Sections 2.3(b) and 2.3(c).\n \n     4.5   Determination of Number of Escrow Shares for Claims.  Unless a\n           ---------------------------------------------------         \nspecific number of Escrow Shares is specified, any amount owed to Acquirer under\nthis Agreement will be immediately payable to Acquirer, subject to Section\n4.3(h), by deducting pro rata each Stockholder's account in the Escrow Ledger\nthe number of Escrow Shares equal to: (a) the Target Damages for that Claim,\ndivided by, (b) the Closing Price (as defined in the Plan as of the Closing\n\n                                       10\n\n \nDate). Within ten (10) business days after the Closing Date, Acquirer will\nnotify the Escrow Agent of the Closing Price.\n \n          4.6  No Election of Remedies.  Acquirer may institute Claims against\n               -----------------------                                        \nthe Escrow Shares and in satisfaction thereof may elect to have such Escrow\nShares deducted from the Escrow Ledger, after any notice to the Representative\nrequired hereunder, without making any other claims directly against the\nStockholders and without rescinding or attempting to rescind the transactions\nconsummated pursuant to the Plan.  The assertion of any single Claim for\nindemnification hereunder will not bar Acquirer from asserting other Claims\nhereunder.  Acquirer need not exhaust any other remedies that may be available\nto it but may proceed directly in accordance with the provisions of this\nAgreement.\n \n \n     5.   THE ESCROW AGENT\n \n          5.1  Limitation of Escrow Agent's Liability\/Responsibility. The Escrow\n               ----------------------------------------------------- \nAgent shall incur no liability with respect to any action taken or suffered by\nit in reliance upon any notice, direction, instruction, consent, statement or\nother document believed by it to be genuine and duly authorized, nor for any\nother action or inaction, except its own willful misconduct, fraud or gross\nnegligence. The Escrow Agent shall have no duty or responsibility: (a) for the\nvalidity or sufficiency of this Agreement, nor to inquire into or investigate\nthe validity, accuracy or content of any document that it receives, (b) to\nverify that the Representative or Acquirer received a Notice of Claim or other\nrequired notice, and (c) other than those expressly set forth in this Agreement\nand the implied duty of good faith and fair dealing. The Escrow Agent will not\nbe required to take any action hereunder involving any expense unless the\npayment of such expense is made or provided for in a manner satisfactory to it.\nNothing in this Agreement shall be deemed to impose upon the Escrow Agent any\nduty to qualify to do business or to act as a fiduciary or otherwise in any\njurisdiction other than the State of California.\n\n          5.2  Use of Agents and Reliance on Counsel.  The Escrow Agent may\n               -------------------------------------                       \nexecute any of its powers or responsibilities hereunder and exercise any rights\nhereunder either directly or through its agents or attorneys and shall be\nentitled to consult with its legal counsel, including in-house legal counsel, as\nto any questions or matters arising hereunder.  The reasonable, good faith\nwritten opinion of such legal counsel shall be full and complete authorization\nand protection to the Escrow Agent in respect of any act or omission by the\nEscrow Agent undertaken in good faith and in accordance with the opinion of such\nlegal counsel.  The Escrow Agent shall have no liability for the conduct of any\noutside attorneys, accountants or other similar professionals it retains.\n \n          5.3  Indemnification of the Escrow Agent.\n               ----------------------------------- \n \n               (a)  For the purposes of this Section 5.3, references to the\nEscrow Agent shall include the Escrow Agent's officers, directors, employees,\ncounsel and agents.\n \n\n                                       11\n\n \n               (b)  Each party to this Agreement other than the Escrow Agent\n(each an 'INDEMNIFYING PARTY' and together the 'INDEMNIFYING PARTIES') will\nseverally reimburse, indemnify and hold harmless the Escrow Agent from and\nagainst any damage, liability or loss suffered, incurred by, or asserted against\nthe Escrow Agent (including amounts paid in settlement of any action, suit,\nproceeding, or claim brought or threatened to be brought and including\nreasonable expenses of legal counsel, collectively, 'LOSS') arising out of, in\nconnection with or based upon any act or omission by the Escrow Agent relating\nin any way to this Agreement or the Escrow Agent's services hereunder. This\nindemnity will exclude any indemnification for any Loss arising in whole or in\npart, directly or indirectly, from any gross negligence or willful misconduct on\nthe Escrow Agent's part. Anything in this Agreement to the contrary\nnotwithstanding, in no event will the Escrow Agent be liable for special,\nindirect or consequential loss or damage of any kind whatsoever (including but\nnot limited to lost profits) suffered by another party to this Agreement or by\nany Stockholder, even if the Escrow Agent has been advised of the likelihood of\nsuch loss or damage and regardless of the form of action.\n\n               (c)  Each Indemnifying Party may participate at its own expense\nin the defense of any claim or action that may be asserted against the Escrow\nAgent related to this Agreement, and if the Indemnifying Parties so elect, the\nIndemnifying Parties may assume the defense of such claim or action; provided,\nhowever, that, if there exists a conflict of interest that would make it\ninappropriate, in the sole discretion of the Escrow Agent, for the same counsel\nto represent both Escrow Agent and the Indemnifying Parties, the Escrow Agent's\nretention of separate counsel will be reimbursable as herein above provided.\nThe Escrow Agent's right to indemnification hereunder will survive the Escrow\nAgent's resignation or removal as the Escrow Agent and will survive the\ntermination of this Agreement by lapse of time or otherwise.\n\n               (d)  The Escrow Agent will notify each Indemnifying Party by\nletter, or by telephone or telecopy confirmed by letter, of any receipt by\nEscrow Agent of a written assertion of a claim against the Escrow Agent arising\nout of this Agreement, or any action commenced against the Escrow Agent arising\nout of this Agreement, within five (5) business days after the Escrow Agent's\nreceipt of written notice of such claim. However, the Escrow Agent's failure to\nso notify each Indemnifying Party will not operate in any manner whatsoever to\nrelieve an Indemnifying Party from any liability that it may have to the Escrow\nAgent under this Section 5.3 or otherwise unless such failure by the Escrow\nAgent to give such notice materially prejudices such Indemnifying Party.\n\n          5.4  Compensation and Expenses of Escrow Agent.  All fees and expenses\n               -----------------------------------------                        \nof the Escrow Agent incurred in the ordinary course of performing its\nresponsibilities hereunder shall be paid by Acquirer upon receipt of a written\ninvoice by Escrow Agent.\n \n          5.5  Resolution of Conflicting Demands.  In the event conflicting\n               ---------------------------------                           \ndemands are made or conflicting notices are served upon the Escrow Agent with\nrespect to the Escrow Shares or the Escrow Ledger, the Escrow Agent shall have\nthe right, at the Escrow Agent's election, to either: (a) give written notice to\nthe other parties to this Agreement that it has received conflicting\ninstructions from Acquirer and the Representative and is refraining from taking\naction until it receives instructions consented to in writing by both Acquirer\nand the Representative, or \n\n                                       12\n\n \n(b) resign so that a successor escrow agent can be appointed pursuant to Section\n5.6. In the further event that the Escrow Agent gives written notice under '(a)'\nabove and does not receive instructions consented to in writing by both Acquirer\nand the Representative within thirty (30) calendar days, then the Escrow Agent\nmay file a suit in interpleader and obtain an order from a court of competent\njurisdiction located in San Mateo County, California, requiring the parties to\ninterplead and litigate in such court their several claims and rights among\nthemselves. In this case, the Escrow Agent shall thereby be fully released and\ndischarged from all further obligations imposed upon it under this Agreement\nwith respect to the matters that are the subject of such interpleader suit, and\nAcquirer shall pay the Escrow Agent all costs, expenses and reasonable\nattorneys' fees expended or incurred by the Escrow Agent pursuant to the\nexercise of Escrow Agent's rights under this paragraph.\n \n          5.6  Successor Escrow Agent.\n               ---------------------- \n \n               (a)  In the event the Escrow Agent becomes unavailable or\nunwilling to continue in its capacity as Escrow Agent hereunder, the Escrow\nAgent may resign and be discharged from its duties hereunder by giving notice of\nresignation to the parties to this Agreement, specifying a date not less than\nten (10) days following such notice date of when such resignation shall take\neffect and refunding to Acquirer any prepaid but unearned fees previously paid\nby Acquirer to the Escrow Agent hereunder. Acquirer shall designate a successor\nEscrow Agent reasonably satisfactory to the Representative prior to the\nexpiration of such ten day period by giving written notice to the Escrow Agent\nand the Representative. If no successor escrow agent is named by Acquirer, then\nthe Escrow Agent may apply to a court of competent jurisdiction for the\nappointment of a successor Escrow Agent. In either case, the Escrow Agent shall\npromptly transfer the Escrow Shares and Escrow Ledger to the designated\nsuccessor Escrow Agent.\n \n               (b)  In the event Escrow Agent is merged with, acquired or\notherwise combined with another entity, or Escrow Agent transfers all or\nsubstantially all of its corporate trust business (including the escrow\ncontemplated by this Agreement) to another institution, the successor as a\nresult of such transaction will be the Escrow Agent hereunder without any\nfurther action by the parties hereto.\n \n \n     6.   THE STOCKHOLDERS' REPRESENTATIVE\n \n          6.1  Powers of the Representative.    In order to receive their\n               ----------------------------                              \nconsideration pursuant to the Plan, each Stockholder has consented to: (a) the\nappointment of the Representative (and any replacement hereunder) as\nrepresentative of the Stockholders and as the agent and attorney-in-fact for and\non behalf of each Stockholder, and (b) so long as all Stockholders are treated\nin material respects in the same manner, the taking by the Representative of any\nand all actions and the making of any decisions required or permitted to be\ntaken by the Representative under this Agreement, including, without limitation,\nthe exercise of the power to: (i) authorize deduction of Escrow Shares from the\naccount of each Stockholder, as reflected in the Escrow Ledger, in satisfaction\nof Claims; (ii) agree to, negotiate, enter into \n\n                                       13\n\n \nsettlements and compromises of, and demand arbitration and comply with orders of\ncourts and awards of arbitrators, with respect to Claims; (iii) take all actions\nnecessary in connection with the waiver of any condition to the obligations of\nthe Stockholders under this Agreement; (iv) waive any right of any or all of the\nStockholders; (v) give and receive all notices required to be given under this\nAgreement; (vi) resolve any Claims; and (vii) take all actions necessary in the\nsole judgment of the Representative for the accomplishment of the foregoing and\nall of the other terms, conditions and limitations of this Agreement. The\nStockholders shall be bound by all actions taken and decisions made by the\nRepresentative in connection with this Agreement. Acquirer and the Escrow Agent\nshall be entitled to rely on any action or decision of the Representative.\n\n          6.2  Limitation of the Representative's Liability.  In performing the\n               --------------------------------------------                    \nfunctions specified in this Agreement, the Representative shall not be liable to\nthe Stockholders in the absence of fraud, gross negligence or willful misconduct\n(including willful breach of this Agreement) on the part of the Representative.\n \n          6.3  Indemnification.  Each of the Stockholders agree to indemnify and\n               ---------------                                                  \nhold the Representative harmless from and against any and all loss, liability,\ndamages, cost or expense (including but not limited to reasonable attorneys' and\nexperts' fees and court costs) incurred by the Representative in connection with\nthe performance of the Representative's duties and obligations under this\nAgreement (other than any loss, liability, damages, cost or expense incurred\nthrough acts or omissions constituting fraud, gross negligence or willful\nmisconduct on the Representative 's part).\n \n          6.4  No Compensation; Reimbursement for Expenses.  Except as stated in\n               -------------------------------------------                      \nSection 6.3 and in this paragraph, the Representative shall not be entitled to\nreceive any compensation for his or her services in connection with this\nAgreement.  Any out-of-pocket costs and expenses reasonably incurred by the\nRepresentative in connection with actions taken pursuant to the terms of this\nAgreement shall be paid by the Stockholders in proportion to their percentage\nshare set forth in column 4 of the Escrow Ledger promptly upon the\nRepresentative's written request to the Stockholders and, at the\nRepresentative's option, may be taken by the Representative from the Escrow\nShares reflected in the Escrow Ledger after the final resolution of all Claims\nmade under this Agreement.\n \n          6.5  Successor Representative.  In the event that Representative dies,\n               ------------------------                                         \nbecomes unable to perform the responsibilities hereunder or resigns as\nrepresentative of the Stockholders hereunder, a substitute representative of the\nStockholders shall be appointed by the Stockholders with beneficial interests in\na majority of the total Escrow Shares, as reflected in column 4 of the Escrow\nLedger, to act as representative of the Stockholders hereunder.\n \n \n     7.   GENERAL PROVISIONS\n \n          7.1  Entire Agreement.  Except as otherwise provided in the Plan, this\n               ----------------                                                 \nAgreement constitutes the entire understanding and agreement of the parties with\nrespect to the \n\n                                       14\n\n \nsubject matter of this Agreement and supersedes all prior agreements or\nunderstandings, written or oral, between the parties with respect to the subject\nmatter hereof. As between the Escrow Agent and the other parties hereto, all\nsuch parties agree that the Escrow Agent's duties are defined only in this\nAgreement, any contrary provisions of the Plan notwithstanding.\n\n          7.2  Assignment; Binding Nature.  Acquirer may not assign all or any\n               --------------------------                                     \nof its rights and obligations hereunder without the prior written consent of the\nEscrow Agent and the Representative, which consent shall not be unreasonably\nwithheld.  Except for assignments in connection with permitted transfers of\nEscrow Shares under Section 2.1(d) of this Agreement, Target may not assign any\nof its rights or obligations hereunder, nor may rights or obligations be\nassigned by operation of law, without the prior written consent of Acquirer.\nThis Agreement and shall be binding upon, and inure to the benefit of, the\nparties hereto and their respective successors and permitted assigns.\n\n          7.3  Construction of Agreement.  This Agreement has been negotiated by\n               -------------------------                                        \nthe respective parties hereto and their attorneys and have been reviewed by each\nparty hereto.  Accordingly, no ambiguity in the language of this Agreement will\nbe construed for or against either party.\n \n          7.4  Section Headings.  A reference to a section, article or exhibit\n               ----------------                                               \nwill mean a section in, article in or exhibit to this Agreement unless otherwise\nexplicitly set forth.  The titles and headings herein are for reference purposes\nonly and will not in any manner limit the construction of this Agreement, which\nwill be considered as a whole.\n \n          7.5  Amendment.  This Agreement may be amended by the written\n               ---------                                               \nagreement of Acquirer, the Escrow Agent and the Representative; provided,\nhowever, that, if the Escrow Agent does not agree to an amendment agreed upon by\nAcquirer and the Representative, then the Escrow Agent shall resign and Acquirer\nshall appoint a successor Escrow Agent in accordance with the provisions of\nSection 5.6.  No amendment of the Plan shall increase or alter the Escrow\nAgent's duties, responsibilities or liability hereunder without the Escrow\nAgent's written agreement.\n \n          7.6  Waiver.  No waiver by any party hereto of any condition or of any\n               ------                                                           \nbreach of any provision of this Agreement shall be effective unless it is set\nforth in a writing signed by such party.  No waiver by any party of any such\ncondition or breach, in any one instance, shall be deemed to be a further or\ncontinuing waiver of any such condition or breach or a waiver of any other\ncondition or breach of any other provision contained herein.  The failure of any\nparty to enforce any of the provisions hereof will not be construed to be a\nwaiver of the right of such party thereafter to enforce such provisions.\n \n          7.7  Severability.  If any provision of this Agreement or its\n               ------------                                            \napplication will for any reason and to any extent be invalid or unenforceable,\nthe remainder of this Agreement and application of such provision to other\npersons or circumstances will be interpreted so as to effect the intent of the\nparties hereto.  The parties will replace such void or unenforceable provision\nof \n\n                                       15\n\n \nthis Agreement with a valid and enforceable provision that will achieve, to the\nextent possible, the economic, business and other purposes of the void or\nunenforceable provision.\n \n          7.8  Governing Law.  The validity of this Agreement the construction\n               -------------                                                  \nof its terms, and the interpretation and enforcement of the rights and duties of\nthe parties of this Agreement will be exclusively governed by and construed in\naccordance with the internal laws of the State of Delaware, as applied to\nagreements entered into solely between residents of and to be performed entirely\nin the State of Delaware, without reference to that body of law relating to\nconflicts of law or choice of law.\n \n          7.9  Other Remedies.  Except as otherwise provided herein, any and all\n               --------------                                                   \nremedies herein expressly conferred upon a party will be deemed cumulative with\nand not exclusive of any other remedy conferred hereby or by law on such party,\nand the exercise of any one remedy will not preclude the exercise of any other.\n \n          7.10 Jurisdiction.  The parties submit to the jurisdiction of the\n               ------------                                                \nSuperior Court of the State of California and the United Stated District Court\nfor the Northern District of California for the purposes of: (a) confirming any\naward made under this Agreement and entering into judgment thereon, and (b)\nlitigation and trial of any controversy or claim arising out of or relating to\nthis Agreement.  The parties consent to the personal jurisdiction of and the\nvenue in the state and federal courts within San Mateo County and waive any\nrights to request dismissal on the grounds of forum non conveniens or similar\ndoctrines.\n\n          7.11 Specific Performance.  The parties acknowledge that irreparable\n               --------------------                                           \ndamage would occur in the event that the provisions of this Agreement were not\nperformed in accordance with their specific terms or were otherwise breached.\nThe parties will be entitled to an injunction(s) to prevent breaches of the\nprovisions of this Agreement and to enforce specifically the terms and\nprovisions hereof (including the indemnification provisions hereof) in any court\nof the United States or any state having jurisdiction.  This is in addition to\nany other remedy to which the parties might be entitled at law or in equity.\n \n          7.12 Notices.  All notices, instructions and other communications\n               -------                                                     \nrequired or permitted to be given under this Agreement or necessary or\nconvenient in connection herewith must be in writing and shall be deemed given:\n(a) when personally served or when delivered by telex or facsimile; (b) one\nbusiness day after deposit with an overnight courier service as shown by the\nrecords of such delivery service; (c) on the business day of transmission if\nsuch notice is sent by facsimile and the sender receives electronic confirmation\nof receipt by the recipient; or (d) on the earlier of actual receipt or the\nthird business day following the date on which the notice is deposited in the\nUnited States mail, first class certified or registered mail, postage prepaid,\naddressed as follows:\n\nIf to Acquirer:             At Home Corporation\n                            Attention: Mr. David Pine, Esq.\n\n                                       16\n\n \n                            425 Broadway Street\n                            Redwood City, CA  94063\n                            Fax Number: (650) 482-4606\n\nwith a copy to:             Fenwick &amp; West LLP\n                            Attention: Gordon Davidson, Esq.\n                            Two Palo Alto Square\n                            Palo Alto, California 94306\n                            Fax Number:  (650) 494-1417\n\nIf to the Exchange Agent:   At Home Corporation\n                            Attention: Sharon Kelley\n                            425 Broadway Street\n                            Redwood City, CA  94063\n                            Fax Number: (650) 569-5045\n\nIf to the Transfer Agent:   Boston EquiServe\n                            Attention: Tyler Clements\n                            289 S. San Antonio Road, Suite 100\n                            Los Altos, CA  94022\n                            Fax Number: (650) 917-5908\n\nIf to the Escrow Agent:     State Street Bank and Trust Company of California, \n                            N.A.\n                            Library Tower\n                            633 West 5\/th\/ Street, 12\/th\/ Floor\n                            Los Angeles, CA  90071\n                            Attn: Corporate Trust Department\n                            (1998 At Home\/Narrative Escrow)\n                            Fax Number: (213) 362-7357\n\nIf to the Representative:   Greylock Management Corp.\n                            Attention: Charles M. Hazard, Jr.\n                            One Federal Street\n                            Boston, MA 02110\n                            Phone: (617) 423-5525\n                            Fax Number: (617) 482-0059\n\nor to such other address as a party designates in a writing delivered to each of\nthe other parties hereto in accordance with this Section 7.12.  Notwithstanding\nthe foregoing, notices, instructions and other communications addressed to the\nEscrow Agent shall be deemed to have been given to the Escrow Agent only upon\nreceipt by the Escrow Agent.  The Escrow Agent may assume without inquiry\n(unless the Escrow Agent has written notice to the contrary) that notices\nreceived by it which are also required to be delivered to another party have, in\nfact, been delivered to such other party.\n\n                                       17\n\n \n          7.13 Counterparts.  This Agreement may be executed in any number of\n               ------------                                                  \ncounterparts, each of which shall be deemed an original as regards any party\nwhose signature appears thereon, but all of which together shall constitute one\nand the same instrument.  This Agreement will become binding when two or more\ncounterparts hereof, individually or taken together, bear the signatures of each\nof the parties reflected hereon as signatories.\n\n\n          IN WITNESS WHEREOF, the parties have duly executed this Agreement as\nof the day and year first above written.\n\n\nACQUIRER                                      REPRESENTATIVE\n \nBy:    \/s\/ David Pine                         By:     \/s\/ Charles M. Hazard, Jr.\n       ---------------------                          --------------------------\nName:  David Pine                             Name:   Charles M. Hazard, Jr.\n \nTitle: Vice President and General Counsel     Title:  Representative of\n                                                      Target Stockholders\n\n\nESCROW AGENT\n\nSTATE STREET BANK AND TRUST\nCOMPANY OF CALIFORNIA, N.A.\n\nBy:    \/s\/ Mark Henson\n       --------------------\n\nName:  Mark Henson\n\nTitle: Authorized Signatory\n\n\n                     [SIGNATURE PAGE TO ESCROW AGREEMENT]\n\n                                       18\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6782],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9622,9626],"class_list":["post-43393","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-at-home-corp","corporate_contracts_industries-technology__programming","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43393","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43393"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43393"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43393"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43393"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}