Exhibit (d)(2)
EXECUTION COPY
VOTING AGREEMENT
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VOTING AGREEMENT dated as of September 28, 2001 (this
"Agreement"), by and among High Speed Access Corp., a Delaware corporation (the
"Company"), Charter Communications Ventures, LLC ("CC Ventures"), Vulcan
Ventures Incorporated ("Vulcan") and the directors of the Company listed on the
signature pages hereof (the "Director Stockholders", and, together with CC
Ventures and Vulcan, the "Stockholders").
RECITALS
WHEREAS, the Company and Charter Communications Holding Company,
LLC ("HoldCo") have entered into an Asset Purchase Agreement, dated as of
September 28, 2001 (the "Asset Purchase Agreement") pursuant to which HoldCo or
one or more of its Affiliates (as defined in the Asset Purchase Agreement) has
agreed to purchase certain assets and assume certain liabilities of the Company
(the "Acquisition");
WHEREAS, each Stockholder has voting power with respect to the
number of shares of common stock, par value $0.01, of the Company (the "Common
Stock") and Series D Senior Convertible Preferred Stock, par value $0.01, of the
Company (the "Preferred Stock", and, together with the Common Stock, the "Voting
Stock") set forth opposite such Stockholder's name on Annex I hereto;
WHEREAS, as an inducement and a condition to entering into the
Asset Purchase Agreement, the Company has required that CC Ventures and Vulcan
enter into this Agreement; and
WHEREAS, as an inducement and a condition to entering into the
Asset Purchase Agreement, HoldCo has required that the Company and the Director
Stockholders enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants, representations, warranties and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
Section 1. Manner of Voting the Shares of Voting Stock. (a) Each
Stockholder hereby agrees, severally and not jointly, that during the period
commencing on the date hereof and continuing until this provision terminates
pursuant to Section 5, at any meeting of the holders of shares of Voting Stock,
however called, or in connection with any written consent of the holders of
shares of Voting Stock, such Stockholder will vote (or cause to be voted) all of
the shares of Voting Stock with respect to which it has voting power ("Voting
Control"), whether heretofore owned or hereafter acquired, in favor of the
adoption of a resolution approving the Asset Purchase Agreement, the
transactions contemplated thereby and any actions required in furtherance
thereof and
hereof and against any Acquisition Proposal (as defined in the Asset Purchase
Agreement).
(b) No Stockholder shall enter into any agreement or
understanding with any individual, corporation, partnership, limited liability
company, joint venture, association, trust, unincorporated organization or other
entity (each, a "Person") the effect of which would be inconsistent with or
violative of the provisions of this Agreement.
(c) In the event of a stock dividend or distribution, or any
change in the Voting Stock by reason of any stock dividend, stock split,
recapitalization, reclassification, combination, exchange of shares, merger or
the like, the term "shares" as used in this Agreement shall be deemed to refer
to and include the shares as well as all such stock dividends and distributions
and any shares or other securities into which or for which any or all of the
shares may be converted, changed or exchanged.
Section 2. Representations and Warranties. Each of CC Ventures
and Vulcan hereby represents and warrants to the Company, and each of the
Director Stockholders hereby represents and warrants to the Company, CC Ventures
and Vulcan, as follows:
(a) Ownership of Shares. Such Stockholder has Voting Control with
respect to all of the shares of Voting Stock listed opposite its name on Annex I
hereto. Such Stockholder has the power to issue instructions with respect to the
matters set forth in Section 1 hereof and power to agree to all of the matters
set forth in this Agreement, in each case with respect to all of the shares of
Voting Stock listed opposite its name on Annex I hereto with no limitations,
qualifications or restrictions on such rights (subject to applicable securities
laws).
(b) Power; Binding Agreement. Such Stockholder has the legal
capacity, power and authority to enter into and perform all of its obligations
under this Agreement. This Agreement has been duly and validly authorized,
executed and delivered by it and constitutes a valid and binding agreement
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally, and subject, as
to enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity). There is no
beneficiary or holder of a voting trust certificate or other interest of any
trust of which it is settlor or trustee or any other person whose consent is
required for the execution and delivery of this Agreement or the consummation by
it of the transactions contemplated hereby.
(c) No Conflicts. None of the execution and delivery of this
Agreement by it, the consummation by it of the transactions contemplated hereby
or compliance by it with any of the provisions hereof will (i) result in a
violation or breach of, or constitute (with or without notice or lapse of time
or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration)
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under any of the terms, conditions or provisions of any declaration of trust,
note, bond, mortgage, indenture, security or pledge agreement, voting agreement,
stockholders' agreement or voting trust, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation of any
kind to which it is a party or by which it or any of its properties or assets
may be bound or (ii) violate any order, writ, injunction, decree, judgment,
statute, rule or regulation applicable to it or any of its properties or assets;
and which would, in either case, prevent or impair the ability of such
Stockholder to perform its obligations under this Agreement.
Section 3. Reliance. Each of CC Ventures and Vulcan understands
and acknowledges that the Company is entering into the Asset Purchase Agreement
in reliance upon execution and delivery of this Agreement by CC Ventures and
Vulcan. Each of the Director Stockholders understands and acknowledges that each
of the Company and HoldCo are entering into the Asset Purchase Agreement in
reliance upon execution and delivery of this Agreement by such Director
Stockholder.
Section 4. Restriction on Transfer; Proxies; Non-Interference;
Stop Transfers. Each Stockholder hereby agrees with each other Stockholder and
the Company, severally and not jointly, as follows:
(a) Such Stockholder shall not, directly or indirectly, during
the period commencing on the date hereof and continuing until this provision
terminates pursuant to Section 5: (i) offer for sale, sell, transfer, tender,
pledge, encumber, assign or otherwise dispose of, or grant or enter into any
contract, option or other arrangement or understanding with respect to or
consent to the offer for sale, sale, transfer, tender, pledge, encumbrance,
assignment or other disposition of, any or all of the shares of Voting Stock
with respect to which it has Voting Control ("Controlled Voting Stock") or any
interest therein; (ii) except as contemplated by this Agreement, grant any
proxies or powers of attorney, deposit any shares of its Controlled Voting Stock
into a voting trust or enter into a voting agreement with respect to any of its
shares of Controlled Voting Stock which would prevent or impair the ability of
such Stockholder to perform its obligations under this Agreement; or (iii) take
any action that would make any of such Stockholder's representations or
warranties contained herein untrue or incorrect or have the effect of preventing
or disabling such Stockholder from performing his or its respective obligations
under this Agreement; provided, however, that (A) a Director Stockholder may
transfer his shares of Controlled Voting Stock to a family member, trust, family
limited partnership or pursuant to a similar estate planning arrangement, (B) CC
Ventures may transfer its shares of Controlled Voting Stock to HoldCo or any
controlled Affiliate of CC Ventures, and (C) Vulcan may transfer its shares of
Controlled Voting Stock to HoldCo or any controlled Affiliate of Vulcan;
provided, further, that prior to effecting any transfer permitted pursuant to
clauses (A) through (C) above, the permitted transferee must agree in writing to
be bound by the terms of this Agreement as if named as a party hereunder and
such written instrument must have been delivered to the Company and CC Ventures.
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(b) Without limiting the generality of Section 4(a) above, such
Stockholder agrees and covenants to the Company that it shall not, during the
period set forth in Section 4(a), request that the Company register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing the shares of Controlled Voting Stock, unless such transfer is made
in compliance with this Agreement.
Section 5. Termination. Except as otherwise provided herein, the
covenants and agreements contained in Sections 1 and 4 hereof shall terminate as
follows: (i) if the Asset Purchase Agreement is terminated in accordance with
the terms thereof, upon such termination, (ii) if the Asset Purchase Agreement
is amended in a manner that would require the Company to amend and recirculate a
Proxy Statement relating to the Asset Purchase Agreement and the transactions
contemplated thereby, upon the effective date of such amendment, and (iii) if
the Acquisition is consummated, upon the Closing (as defined in the Asset
Purchase Agreement). Notwithstanding anything to the contrary herein, the
termination of this Agreement shall not relieve any party of liability for a
breach hereof prior to termination.
Section 6. Stockholder Capacity. No Director Stockholder
executing this Agreement makes any agreement or understanding herein in his
capacity as a director or officer of the Company. Each Director Stockholder
signs this Agreement solely in his capacity as a Person that has Voting Control
with respect to all of the shares of Voting Stock listed opposite his name on
Annex I hereto and nothing herein shall limit or affect any actions taken by a
Director Stockholder in his capacity as a director or officer of the Company.
Section 7. Further Assurances. From time to time, at any party's
request and without further consideration, each Stockholder and/or the Company
shall execute and deliver such additional documents and take all such further
lawful action as may be necessary or desirable to consummate and make effective,
in the most expeditious manner practicable, the transactions contemplated by
this Agreement.
Section 8. Entire Agreement. This Agreement and the Asset
Purchase Agreement (together with the Schedules and Exhibits thereto) constitute
the entire agreement between the parties with respect to the subject matter
hereof and supersede all other prior agreements and understandings, both written
and oral, between the parties with respect to the subject matter hereof.
Section 9. Certain Events. Each Stockholder agrees that this
Agreement and the obligations hereunder shall attach to its shares of Controlled
Voting Stock and shall be binding upon any Person to which legal or beneficial
ownership of such shares of Controlled Voting Stock shall pass, whether by
operation of law or otherwise, including, without limitation, such Stockholder's
heirs, executors, guardians, administrators, trustees or successors and, in the
case of CC Ventures and Vulcan, their respective successors and assigns.
Notwithstanding any transfer of shares of Controlled Voting
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Stock which are the subject of this Agreement, the transferor shall remain
liable for the performance of all obligations of the transferor under this
Agreement.
Section 10. Assignment. Except in connection with a permitted
transfer under Section 4(a), this Agreement shall not be assigned by any party
hereto, by operation of law or otherwise, without the prior written consent of
the other parties, and any purported assignment without such consent shall be
null and void. All covenants and agreements contained in this Agreement shall be
binding upon and inure to the benefit of the respective successors, heirs and
permitted assigns of the parties hereto.
Section 11. Amendments; Waivers. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated
except upon the execution and delivery of a written agreement executed by each
of the parties hereto.
Section 12. Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given (and shall
be deemed to have been duly received if so given) by hand delivery, confirmed
facsimile transmission, or by mail (registered or certified mail, postage
prepaid, return receipt requested) or by any courier service providing proof of
delivery. All communications hereunder shall be delivered to the respective
parties at the following addresses: (i) if to the Company, to its address set
forth in the Asset Purchase Agreement; and (ii) if to a Stockholder, to the
address set forth under such Stockholder's name on Annex I hereto; or, in each
case, to such other address as the Person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
Section 13. Severability. If any term or provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon determination that any term or other
provision of this Agreement is invalid, illegal or incapable of being enforced,
the parties hereto shall negotiate in good faith to modify this Agreement so as
to effect the original intent of the parties as closely as possible to the
fullest extent permitted by law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
Section 14. Specific Performance. Each Stockholder recognizes and
acknowledges that a breach by him or it of any covenants or agreements contained
in this Agreement will cause the other parties to sustain damages for which they
would not have an adequate remedy at law for money damages. Each Stockholder
therefore agrees that in the event of any such breach the other parties shall be
entitled to the remedy of specific performance of such covenants and agreements
and injunctive and other equitable relief in addition to any other remedy to
which such party may be entitled, at law or in equity.
Section 15. Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be
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cumulative and not alternative, and the exercise of any thereof by any party
shall not preclude the simultaneous or later exercise of any other such right,
power or remedy by such party.
Section 16. No Waiver. The failure of any party hereto to
exercise any right, power or remedy provided under this Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon compliance by
any other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof, shall not constitute
a waiver by such party of its right to exercise any such or other right, power
or remedy or to demand such compliance.
Section 17. No Third Party Beneficiaries. This Agreement is not
intended to be for the benefit of, and shall not be enforceable by, any Person
who or which is not a party hereto.
Section 18. Governing Law. This Agreement shall be governed and
construed in accordance ith the laws of the State of New York, without giving
effect to the principles of conflicts of law thereof.
Section 19. Waiver of Jury Trial. THE PARTIES HERETO WAIVE ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS UNDER THIS AGREEMENT AND ANY DOCUMENT EXECUTED IN CONNECTION HEREWITH.
Section 20. Descriptive Headings. The descriptive headings used
herein are inserted for onvenience of reference only and are not intended to be
part of or to affect the meaning or interpretation of this Agreement.
Section 21. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same Agreement.
[signature pages follow]
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IN WITNESS WHEREOF, the Company and each Stockholder have
executed and delivered this Agreement as of the date first above written.
HIGH SPEED ACCESS CORP.
By: /s/ Xxx X. X'Xxxxx
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Name: Xxx X. X'Xxxxx
Title: President and CEO
CHARTER COMMUNICATIONS VENTURES, LLC
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Senior Vice President,
General Counsel and Secretary
VULCAN VENTURES INCORPORATED
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
/s/ Xxxxxx X. Xxxxxx, XX
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Xxxxxx X. Xxxxxx, XX
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxx, Xx.
------------------------------------
Xxxxx X. Xxxxx, Xx.
/s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxx
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/s/ Xxxxxx X. X'Xxxxx
------------------------------------
Xxxxxx X. X'Xxxxx
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ANNEX I
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Number
Stockholders Class of Securities of Shares
------------ ------------------- ---------
Charter Communications Ventures, LLC Common Stock None
00000 Xxxxxxxxxx Xxxxx Preferred Stock 37,000
Xx. Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Esq.
Vulcan Ventures Incorporated Common Stock 20,222,139
000 Xxxxx Xxxxxxx Preferred Stock 38,000
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Xxxxxx X. Xxxxxx, XX Common Stock 1,306,000
x/x Xxxxxxxxx Xxxxxxxx, XXX Xxxxxxxxx Xxxxx Xxxx
0000 National City Tower
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx Common Stock 365,026
c/o Windcrest Partners Preferred Stock None
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxx X. Xxxxx, Xx. Common Stock 910,927
x/x Xxxxxxxxx Xxxxxxxx, XXX Xxxxxxxxx Xxxxx Xxxx
0000 National City Tower
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Xxxxxx X. Xxxxxxxx Common Stock 117,604
x/x Xxxxxxxxx Xxxxxxxx, XXX Xxxxxxxxx Xxxxx Xxxx
0000 National City Tower
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Xxxxxx X. X'Xxxxx Common Stock 1,220,000
c/o High Speed Access Corp. Preferred Stock None
00000 X. Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
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