Exhibit 10.1
ASSET PURCHASE AGREEMENT
between
HIGH SPEED ACCESS CORP.
and
CHARTER COMMUNICATIONS HOLDING COMPANY, LLC
Dated as of September 28, 2001
GLOSSARY OF DEFINED TERMS
DEFINED TERMS ON PAGE
Accounts Payable..............................................................2
Accounts Receivable...........................................................2
Acquired Assets..............................................................11
Acquired Current Assets.......................................................2
Acquisition Proposal.........................................................38
Adjusted Accounts Receivable..................................................2
Adjustment Holdback..........................................................16
Adjustment Item..............................................................17
Affiliate.....................................................................2
Apportioned Obligations......................................................44
Approved Leave of Absence....................................................40
Arapahoe Facility............................................................34
Assigned Security Deposits....................................................2
Assigned Voice & Data Circuits................................................2
Assumed Capital Lease Liabilities.............................................3
Assumed Capital Leases........................................................2
Assumed Contracts.............................................................3
Assumed Current Liabilities...................................................3
Assumed Liabilities..........................................................13
Assumed Operating Lease Liabilities...........................................3
Assumed Operating Leases......................................................3
Assumed Real Estate Lease Liabilities.........................................3
Assumed Real Estate Leases....................................................3
Beneficiary..................................................................43
Benefit Plans.................................................................3
Billing Letter Agreement......................................................1
Business......................................................................1
Business Day..................................................................3
Cable Modem Business..........................................................1
Capital Leases................................................................3
Cash Amount..................................................................16
CCI...........................................................................1
CCI Receivables...............................................................2
Charter Ventures..............................................................1
Charter Warrants.............................................................22
Closing......................................................................20
Closing Date.................................................................20
Closing Statement............................................................17
CMB Business Records..........................................................3
CMB Claims....................................................................4
CMB Employee Schedule........................................................38
DEFINED TERMS ON PAGE
CMB Employees................................................................38
CMB Intellectual Property.....................................................4
CMB Sites.....................................................................4
Code..........................................................................4
Confidential Information.....................................................45
Confidentiality Agreement....................................................34
Contracts.....................................................................4
Copyrights....................................................................6
Corrections..................................................................17
Customer Care Matters.........................................................4
Damages......................................................................51
DGCL.........................................................................24
Disagreement Notice..........................................................17
Employee Claims...............................................................4
Environmental Law.............................................................5
ERISA.........................................................................5
Excluded Assets..............................................................12
Excluded Damages.............................................................52
Excluded Liabilities.........................................................13
Excluded Stockholders.........................................................4
Expenses.....................................................................43
Final Allocation.............................................................20
First Release Amount.........................................................55
First Release Date...........................................................55
Fixtures and Equipment........................................................5
Full Turnkey Agreement........................................................5
GAAP..........................................................................5
Governmental Authority........................................................5
Hazardous Substances..........................................................5
Hired Employee Costs..........................................................5
Hired Employees..............................................................39
Holdco........................................................................1
Holdco Indemnitees...........................................................51
Xxxxxxxx Xxxxx................................................................6
Xxxxxxxx Xxxxx Opinion........................................................6
HSA Common Stock..............................................................6
HSR Act.......................................................................6
HSR Date......................................................................6
Indemnification Holdback.....................................................16
Indemnifying Party...........................................................53
Independent Accounting Firm..................................................19
Information..................................................................30
Intellectual Property.........................................................6
DEFINED TERMS ON PAGE
Intercompany Payments.........................................................6
Launch Fees...................................................................6
Legal Requirement.............................................................7
Xxxxxx.......................................................................30
Xxxxxx Opinion................................................................7
Liabilities...................................................................7
License Agreement.............................................................1
Liens.........................................................................7
Losses........................................................................7
Management Agreement..........................................................1
Marks.........................................................................6
Maskworks.....................................................................6
Material Adverse Effect.......................................................7
Material Contract.............................................................7
Maximum Sick Time Accrual....................................................40
Maximum Vacation Accrual.....................................................40
Xxxxxxx Xxxxx................................................................32
Modem Inventory...............................................................8
Non-CCI Receivables...........................................................2
Offer Schedule...............................................................38
Officer's Certificate........................................................55
Operating Equipment Leases....................................................8
Other Current Assets..........................................................8
Other Current Liabilities.....................................................8
Other Inventory...............................................................8
Patents.......................................................................6
Permits.......................................................................8
Permitted Liens...............................................................8
Person........................................................................9
Post-Employment Hiring Prohibition...........................................30
Prepayments...................................................................9
Proxy Statement..............................................................25
Purchase Price...............................................................16
Real Estate Leases............................................................9
Review Schedule..............................................................39
Schedule 13E-3...............................................................31
Second Disagreement Notice...................................................18
Second NSA Agreement..........................................................9
Second Release Date..........................................................55
Security Deposits.............................................................9
Seller........................................................................1
Seller Indemnitees...........................................................52
Seller Requisite Vote........................................................24
DEFINED TERMS ON PAGE
Seller Stockholder Meeting...................................................35
Seller's Board...............................................................23
Series D Preferred Stock......................................................9
Settlement Date..............................................................19
Software......................................................................6
Subsidiaries..................................................................9
Superior Proposal............................................................38
Taking.......................................................................15
Tax or Taxes..................................................................9
Technology and Know-How.......................................................9
Third Party Claim............................................................53
Threshold Amount.............................................................51
Trade Secrets.................................................................6
Transaction Documents........................................................10
Transactions.................................................................10
Transfer Tax or Transfer Taxes...............................................10
Transfer Tax Returns.........................................................44
Voting Agreement..............................................................1
Vulcan........................................................................1
WARN Act.....................................................................10
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS..............................................2
Section 1.01. Specified Definitions...................................2
Section 1.02. Other Terms............................................10
Section 1.03. Interpretation.........................................10
ARTICLE II TRANSFER OF ASSETS AND LIABILITIES......................11
Section 2.01. Purchase and Sale of Assets............................11
Section 2.02. Excluded Assets........................................12
Section 2.03. Assumption of Liabilities..............................13
Section 2.04. Excluded Liabilities...................................13
Section 2.05. Risk of Loss; Condemnation.............................15
Section 2.06. Assignment of Contracts, Etc...........................15
ARTICLE III PURCHASE PRICE..........................................16
Section 3.01. Purchase Price.........................................16
Section 3.02. Holdbacks..............................................16
Section 3.03. Purchase Price Adjustments.............................16
Section 3.04. Determination of Adjustments...........................17
Section 3.05. Allocation of Purchase Price...........................20
ARTICLE IV THE CLOSING.............................................20
Section 4.01. Closing Date...........................................20
Section 4.02. Deliveries by Seller at the Closing....................21
Section 4.03. Deliveries by Holdco at the Closing....................21
ARTICLE V REPRESENTATIONS AND WARRANTIES OF SELLER................22
Section 5.01. Organization, Standing and Power.......................22
Section 5.02. Corporate Authorization................................23
Section 5.03. Non-Contravention......................................23
Section 5.04. Governmental Filings; Consents.........................24
Section 5.05. Acquired Assets........................................24
Section 5.06. Absence of Certain Changes or Events...................24
Section 5.07. Proxy Statement........................................24
Section 5.08. Compliance with Applicable Laws........................24
Section 5.09. Litigation; Decrees....................................25
Section 5.10. Security Deposits......................................25
Section 5.11. Contracts..............................................25
Section 5.12. Real Property..........................................26
Section 5.13. Title to and Condition of the Acquired Assets..........26
Section 5.14. Compliance with Environmental Laws.....................26
Section 5.15. Intellectual Property Rights...........................27
Section 5.16. Taxes..................................................28
Section 5.17. Employees, Labor Matters, etc..........................29
Section 5.18. Employee Benefit Plans.................................29
Section 5.19. Brokers................................................30
Section 5.20. Solvency of Seller.....................................30
Section 5.21. Opinion of Financial Advisors..........................30
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF HOLDCO................30
Section 6.01. Organization, Standing and Power.......................30
Section 6.02. Corporate Authorization................................30
Section 6.03. Non-Contravention......................................31
Section 6.04. Governmental Filings; Consents.........................31
Section 6.05. Information Supplied; Schedule 13E-3...................31
Section 6.06. Brokers................................................31
Section 6.07. Assignment of Agreements...............................31
Section 6.08. Interested Stockholder.................................31
ARTICLE VII COVENANTS RELATED TO THE CONDUCT OF
CABLE MODEM........................................32
Section 7.01. Conduct of Cable Modem Business in the
Ordinary Course....................................32
Section 7.02. Arapahoe Facility......................................34
Section 7.03. Access to Information..................................34
ARTICLE VIII ADDITIONAL AGREEMENTS...................................34
Section 8.01. Seller Stockholder Meeting.............................34
Section 8.02. Proxy Statement; Schedule 13E-3........................35
Section 8.03. Governmental Approvals.................................35
Section 8.04. Third Party Consents...................................36
Section 8.05. Notification of Certain Matters........................36
Section 8.06. Bulk Transfer Laws.....................................37
Section 8.07. Further Assurances.....................................37
Section 8.08. Acquisition Proposals..................................37
Section 8.09. Employee Matters.......................................38
Section 8.10. CMB Business Records; Transitional
Arrangements.......................................42
Section 8.11. Publicity..............................................42
Section 8.12. Fees and Expenses......................................43
Section 8.13. Cancellation of Charter Warrants.......................43
Section 8.14. Letter of Credit.......................................43
Section 8.15. Taxes..................................................43
Section 8.16. Use of Seller's Name...................................44
Section 8.17. Non-solicitation.......................................45
Section 8.18. Confidentiality........................................45
Section 8.19. Limitations on Seller's Representations
and Warranties.....................................45
Section 8.20. Launch Fees............................................45
Section 8.21. Termination of Charter Contracts.......................45
Section 8.22. CSR Classes............................................46
Section 8.23. Customer Care Matters..................................46
ARTICLE IX CONDITIONS..............................................46
Section 9.01. Conditions to Each Party's Obligation..................46
Section 9.02. Conditions to Obligation of Holdco.....................47
Section 9.03. Conditions to Obligation of Seller.....................48
ARTICLE X TERMINATION, AMENDMENT AND WAIVER.......................48
Section 10.01. Termination............................................48
Section 10.02. Notice of Termination..................................49
Section 10.03. Effect of Termination and Abandonment..................49
Section 10.04. Amendments.............................................50
Section 10.05. Extension; Waiver......................................50
ARTICLE XI INDEMNIFICATION.........................................50
Section 11.01. Indemnification by Seller..............................50
Section 11.02. Indemnification by Holdco..............................51
Section 11.03. Exclusive Remedy; No Consequential Damages.............52
Section 11.04. Characterization of Indemnification and
Other Payments.......................................52
Section 11.05. Damages Net of Insurance; Tax Benefits.................52
Section 11.06. Procedures Relating to Third Party Claims..............53
Section 11.07. Indemnification Holdback...............................54
ARTICLE XII GENERAL PROVISIONS......................................56
Section 12.01. Notices................................................56
Section 12.02. Entire Agreement.......................................57
Section 12.03. Severability...........................................57
Section 12.04. Third Party Beneficiaries..............................57
Section 12.05. Assignment.............................................57
Section 12.06. Specific Performance...................................57
Section 12.07. Governing Law..........................................58
Section 12.08. Waiver of Jury Trial...................................58
Section 12.09. Exhibits and Schedules.................................58
Section 12.10. No Strict Construction.................................58
Section 12.11. Counterparts; Effectiveness............................58
EXECUTION COPY
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT dated as of September 28, 2001, between High
Speed Access Corp., a Delaware corporation ("Seller"), and Charter
Communications Holding Company, LLC, a Delaware limited liability company
("Holdco").
RECITALS
WHEREAS, Seller is engaged in the business of providing broadband
Internet access over cable and related services (the "Business");
WHEREAS, a significant portion of the Business conducted by Seller
relates to the provision of high speed internet access to residential and
commercial customers of Holdco and its Affiliates via cable modems pursuant to
the Full Turnkey Agreement and Second NSA Agreement (each as hereinafter
defined), and includes research and development and implementation of that
business (the "Cable Modem Business");
WHEREAS, Seller desires to sell, transfer and assign to Holdco, and
Holdco desires to purchase and assume from Seller, certain of the assets and
liabilities of the Cable Modem Business, namely, the Acquired Assets and Assumed
Liabilities, upon the terms and subject to the conditions set forth herein;
WHEREAS, Seller has notified its cable partners that it intends to exit
from certain one-way cable television markets and to exit all of its turnkey
contracts with cable operators other than Holdco;
WHEREAS, in order to induce Seller and Holdco to enter into this
Agreement, as of the date hereof, Seller, Charter Communications Ventures, LLC
("Charter Ventures"), Vulcan Ventures Incorporated ("Vulcan") and certain other
stockholders of Seller are entering into a Voting Agreement, substantially in
the form attached as Exhibit A hereto (the "Voting Agreement");
WHEREAS, in order to induce Holdco to enter into this Agreement, as of
the date hereof, Charter Communications, Inc., a Delaware corporation ("CCI")
and Seller are entering into a Services and Management Agreement, substantially
in the form attached as Exhibit B hereto (the "Management Agreement");
WHEREAS, in order to induce Seller to enter into this Agreement, as of
the date hereof, Holdco and Seller are entering into a License Agreement,
substantially in the form attached as Exhibit C hereto (the "License
Agreement"); and
WHEREAS, in order to induce Holdco to enter into this Agreement, as of
the date hereof, Holdco and Seller are entering into a Billing Letter Agreement,
substantially in the form attached as Exhibit D hereto (the "Billing Letter
Agreement").
NOW, THEREFORE, in consideration of the mutual covenants,
representations and warranties herein contained, the parties hereto, intending
to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Specified Definitions. As used in this Agreement, the
following capitalized terms have the meanings specified below:
"Accounts Payable" means the accounts payable by Seller arising out of
the operation of the Cable Modem Business as of the Closing Date (to the extent
not paid or retained by Seller as of or at the Closing), excluding the
Intercompany Payments and the Excluded Liabilities.
"Accounts Receivable" means the accounts receivable, as of the Closing
Date, of Seller arising out of the operation of the Cable Modem Business,
including the Adjusted Accounts Receivable.
"Acquired Current Assets" means Adjusted Accounts Receivable, Assigned
Security Deposits and Prepayments.
"Adjusted Accounts Receivable" means the sum of the following:
(a) 100% of all Seller's accounts receivable from Holdco related to the
Second NSA Agreement plus amounts billed and outstanding from September 1, 2001
through the Closing Date with respect to circuits and web hosting plus any
outstanding Incremental Costs (as such term is defined in the Management
Agreement) (collectively, the "CCI Receivables"), excluding the Intercompany
Payments; and
(b) amounts due to Seller from users of Seller's services in the Cable
Modem Business as of the Closing Date that are not more than 90 days past the
date of the applicable invoice (being not more than 60 days past the end of the
applicable service period), which amounts are calculated as set forth on
Schedule 1.01(a) (the "Non-CCI Receivables").
"Affiliate" of a Person means a Person that directly or indirectly,
through one or more intermediaries, controls, is controlled by, or is under
common control with, such Person.
"Assigned Security Deposits" means the Security Deposits set forth on
Schedule 1.01(b).
"Assigned Voice & Data Circuits" means voice circuits, data circuits
and related contracts and agreements pertaining primarily to the CMB Sites set
forth on Schedule 1.01(c).
"Assumed Capital Leases" means the Capital Leases set forth on Schedule
1.01(d).
2
"Assumed Capital Lease Liabilities" means all Liabilities of Seller
under the Assumed Capital Leases, valued at their GAAP carrying value on the
Closing Date.
"Assumed Contracts" means all of the Contracts set forth on Schedule
5.11(a)(i), together with (i) subscription agreements with individual
residential subscribers or commercial establishments for the services provided
by Seller with respect to the Cable Modem Business in the ordinary course of
business; (ii) miscellaneous service Contracts or buyer's requirements Contracts
with Seller's vendors terminable at will or upon notice of thirty (30) days or
less without penalty; and (iii) any Contract not involving a monetary obligation
in excess of $25,000 payable within 12 months.
"Assumed Current Liabilities" means the Accounts Payable, Hired
Employee Costs and Other Current Liabilities.
"Assumed Operating Leases" means the Operating Leases set forth on
Schedule 1.01(e).
"Assumed Operating Lease Liabilities" means all Liabilities of Seller
under the Assumed Operating Leases.
"Assumed Real Estate Leases" means the Real Estate Leases set forth on
Schedule 1.01(f).
"Assumed Real Estate Lease Liabilities" means all Liabilities of Seller
under the Assumed Real Estate Leases.
"Benefit Plans" means all "employee benefit plans" as defined in
Section 3(3) of ERISA and all bonus or other incentive compensation, deferred
compensation, supplemental retirement, employee loan, salary continuation,
severance, retention, vacation, sick leave, stock or other equity-related award,
option or purchase, educational assistance or leave of absence agreements,
arrangements, policies or plans maintained directly or indirectly by Seller or
any Affiliate of Seller relating to CMB Employees, officers, directors, or other
service providers.
"Business Day" means any day other than a Saturday, a Sunday or a day
on which banking institutions in New York, New York are authorized or obligated
by law, regulation or executive order to be closed.
"Capital Leases" means capital leases with any Person under which
Seller is the lessee of, or holds or uses, any machinery, equipment, vehicles or
other tangible personal property owned by any Person.
"CMB Business Records" means any documents, books, records, files or
papers of Seller, whether in hard copy or computer format, primarily related to
the Acquired Assets, Assumed Liabilities or the Cable Modem Business, including,
without limitation, all training materials, sales and promotional literature,
manuals and data, sales and purchase correspondence, personnel and employment
records, customer lists, supplier lists, catalogs, research material, e-mail
addresses, Charter system IP address blocks, passwords, URLs and domain names,
but
3
excluding any and all internal e-mail between Seller's directors, officers
and employees residing on Seller's corporate domain whether in relation to the
Cable Modem Business or otherwise.
"CMB Claims" means rights, claims, actions and causes of action that
Seller may have against any third party to the extent relating to the Cable
Modem Business, Acquired Assets or the Assumed Liabilities, including all rights
of Seller under or pursuant to all warranties, representations, guarantees and
service agreements if any, made by suppliers, manufacturers and contractors in
connection with products sold to or services provided to Seller for the Cable
Modem Business, or affecting the property, machinery or equipment owned or
leased by Seller and used in the conduct of the Cable Modem Business.
"CMB Intellectual Property" means any and all Intellectual Property
used or held for use or in development for use by or for Seller primarily in
relation to or necessary for the Cable Modem Business, other than Seller's
website at xxx.xxxxxxx.xxx.
"CMB Sites" means Seller's call center and network operating center in
Louisville, Kentucky and Seller's data centers (or Internet hosting sites)
located at the addresses set forth on Schedule 1.01(g) provided in Washington,
D.C. by Exodus Communications, Inc. and in Denver, Colorado by Virado (FKA
FirstWorld, Inc.) and Inflow.
"Code" means the Internal Revenue Code of 1986, as amended.
"Contracts" means contracts, agreements, commitments and other legally
binding arrangements, including, without limitation, customer, supplier and
subscriber contracts, in each case whether oral or written, relating primarily
to the Cable Modem Business to which Seller or any of its Subsidiaries is a
party or bound, but excluding Operating Leases, Capital Leases and Real Estate
Leases.
"Customer Care Matters" means all customer care service issues and
complaints (including, without limitation, open Remedy tickets and complaints),
third party infringement claims regarding cable modem subscribers' data files
and activities (e.g., RIAA and Software Alliance), and law enforcement subpoenas
and court orders seeking, without limitation, subscriber database information
and activity logs.
"Excluded Stockholders" means (1) Holdco, Vulcan and their respective
Affiliates and (2) any executive officer or director of Seller who will be
entitled to receive any change of control, severance or other payment or benefit
in the nature of compensation that is contingent upon consummation of the
Transactions (other than solely in his or her capacity as a stockholder of
Seller).
"Employee Claims" means any allegations of sexual harassment, workplace
harassment, unlawful discrimination; violations of city, state and federal equal
employment laws; violations of wage/hour laws; unfair employment practices of
any type; unfair labor practices; violations of family and medical leave laws;
any harm to an employee, independent contractor, or consultant arising from the
employment relationship or the termination of that relationship; slander,
tortious interference with contract, intentional infliction of emotional
distress, invasion of privacy and generally any common law tort of any type;
breach of contract; failure to pay benefits due under any arrangement, including
any Benefit Plan; violations of the WARN Act;
4
any harm to an individual arising from or through the individual's employment
relationship or the termination of that relationship with Seller; unpaid salary
or benefits or otherwise, made by any employee of Seller or any of its
Subsidiaries against Seller or any of its Subsidiaries.
"Environmental Law" means any applicable Legal Requirement relating to
pollution or the protection of the environment (including, ambient air, surface
water, ground water or land), including, but not limited to any applicable
provisions of the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 X.X.X.xx.xx. 9601 et seq.), the Resource Conservation
and Recovery Act of 1976 (42 X.X.X.xx.xx. 6901 et seq.), the Toxic Substances
Control Act (42 X.X.X.xx.xx. 2601 et seq.), the Federal Insecticide, Fungicide
and Rodenticide Act (7 X.X.X.xx.xx. 136 et seq.), the Hazardous Materials
Transportation Act (49 X.X.X.xx.xx. 1801 et seq.), or the Clean Water Act (33
X.X.X.xx. 1251 et seq.).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Fixtures and Equipment" means all furniture, fixtures, furnishings,
machinery, vehicles, equipment and other tangible personal property (excluding
Modem Inventory and Other Inventory) owned or leased by Seller or its
Subsidiaries and used or held for use primarily in relation to or necessary for
the Cable Modem Business and the CMB Sites, including all Seller-owned or leased
equipment in Holdco's systems headends and subscriber homes (but excluding
Fixtures and Equipment the subject of the Capital Leases and Operating Leases
described in Sections 2.02(e) and (f)).
"Full Turnkey Agreement" means the Network Services Agreement, dated
November 25, 1998, by and among Seller, CCI and Marcus Cable, Inc., as assigned
by CCI to Holdco pursuant to the Assignment of the Network Services Agreement
between Seller, Holdco and CCI dated November 8, 1999.
"GAAP" means United States generally accepted accounting principles,
consistently applied.
"Governmental Authority" means any agency, board, bureau, court,
commission, department, instrumentality or administration of any foreign
government, the United States government, any state government or any local or
other governmental body in a state, territory or possession of the United States
or the District of Columbia.
"Hazardous Substances" means any substance, material or waste that is
classified, characterized or otherwise regulated by any applicable Environmental
Law as hazardous, toxic, pollutant, contaminant, or words of similar meaning and
effecting, including but not limited to (a) any petroleum or petroleum compounds
(refined or crude); (b) asbestos or asbestos-containing material; and (c)
polychlorinated biphenyls.
"Hired Employee Costs" means the sum of (a) the accrued and unpaid base
salary and base wages as of the Closing Date, together with accrued (in
accordance with GAAP) and unpaid employer taxes with respect thereto, (b) the
economic value of unused vacation and sick time as of the Closing Date, together
with accrued (in accordance with GAAP) and unpaid
5
employer taxes with respect thereto, and (c) up to $750,000 of accrued bonuses,
in each case to be paid or credited to Hired Employees by Holdco pursuant to
Section 8.09 hereof.
"Xxxxxxxx Xxxxx" means Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Financial
Advisors, Inc.
"Xxxxxxxx Xxxxx Opinion" means the opinion rendered by Xxxxxxxx Xxxxx
to the Board of Directors of Seller, dated September 21, 2001, to the effect
that, as of such date, the Cash Amount (as adjusted pursuant to Section 3.03),
together with the assumption by Holdco of the Assumed Liabilities, constitutes
fair consideration and reasonably equivalent value for the Acquired Assets.
"HSA Common Stock" means the common stock of Seller, par value $0.01
per share.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended.
"HSR Date" means the date upon which the waiting period applicable to
the transactions contemplated hereby under the HSR Act shall have terminated or
expired.
"Intellectual Property" means any or all of the following and all
intellectual property rights in, arising out of, or associated therewith: (i)
all United States and other patents and utility models and applications therefor
and all reissues, divisions, renewals, extensions, provisionals, continuations
and continuations-in-part thereof, and equivalent or similar rights anywhere in
the world in inventions and discoveries ("Patents"), (ii) all inventions
(whether patentable or not), improvements, trade secrets, proprietary
information, know how, technology, technical data and customer lists, and all
documentation embodying or evidencing any of the foregoing ("Trade Secrets"),
(iii) all copyrights, copyright registrations and applications therefor and all
other rights corresponding thereto throughout the world ("Copyrights"), (iv) all
mask works, mask work registrations and applications therefor, and any
equivalent or similar rights in semiconductor masks, layouts, architectures or
topology ("Maskworks"); (v) all industrial designs and any registrations and
applications therefor throughout the world; (vi) all trade names, logos, common
law trademarks and service marks, trademark and service xxxx registrations and
applications therefor and all goodwill associated therewith throughout the world
("Marks"), (viii) all rights in interactive or noninteractive computer program
instruction code, whether in human-readable source code form, machine-readable
binary form, firmware, scripts, interpretive text, or otherwise, along with any
technical, user, or other documentation related thereto, and including any
related data files or data objects, and all media on which any of the foregoing
is recorded ("Software"), (ix) all rights in worldwide web addresses, Uniform
Resource Locators, and domain names, and (x) any similar, corresponding or
equivalent rights to any of the foregoing anywhere in the world.
"Intercompany Payments" means, collectively, the fixed amounts payable
by Seller and Holdco pursuant to Sections 4.02(a) and 4.03(b) hereof.
"Launch Fees" means fees payable by Seller to Holdco pursuant to the
Second NSA Agreement with respect to the launch of new cable modem services.
6
"Legal Requirement" means any statute, ordinance, code, law, rule,
regulation, permit, agency notice or order, approval, consent decree, order or
other written requirement, standard or procedure enacted, adopted or applied by
any Governmental Authority, together with all related amendments, implementing
regulations, and reauthorizations including any judgment, writ, order,
injunction, award or decree of any court, judge, justice or magistrate,
including any bankruptcy court or judge or the arbitrator in any binding
arbitration.
"Xxxxxx Opinion" means the opinion rendered by Xxxxxx to the Board of
Directors of Seller, dated September 21, 2001, to the effect that, as of such
date, the consideration to be received by Seller pursuant to this Agreement is
fair to Seller from a financial point of view.
"Liabilities" means, as to any Person, all debts, adverse claims,
liabilities and obligations, direct, indirect, absolute or contingent, known or
unknown, of such Person, whether accrued, vested or otherwise, whether in
contract, tort, strict liability or otherwise and whether or not actually
reflected, or required by GAAP to be reflected, in such Person's balance sheet
or other books and records.
"Liens" means mortgages, liens (including Tax liens), security
interests, easements, rights of way, pledges, restrictions or encumbrances of
any nature whatsoever.
"Losses" means any and all demands, claims, complaints, actions or
causes of action, suits, proceedings, investigations, arbitrations, assessments,
losses, damages, liabilities, obligations (including those arising out of any
action, such as any settlement or compromise thereof or judgment or award
therein) and any reasonable costs and expenses, including, without limitation,
attorney's and other advisors' fees and disbursements.
"Material Adverse Effect" means an effect or change that, when taken
together with all other effects or changes, is materially adverse to (i) the
condition or value of the Acquired Assets or to the business, financial
condition or results of operations of the Cable Modem Business or (ii) the
ability of Seller to perform its obligations under this Agreement or the
Management Agreement or to consummate the Transactions, provided that none of
the following shall be deemed in and of itself, either alone or in combination,
to constitute a Material Adverse Effect on Seller: (A) any changes in general
economic conditions; (B) any changes generally affecting the industries in which
Seller and its Subsidiaries operate that do not disproportionately affect
Seller; or (C) any changes negatively affecting the Cable Modem Business to the
extent arising from or relating to actions taken by CCI pursuant to the terms of
the Management Agreement.
"Material Contract" means any Contract other than: (i) subscription
agreements with individual residential subscribers or commercial establishments
for the services provided by Seller with respect to the Cable Modem Business in
the ordinary course of business; (ii) miscellaneous service Contracts or buyer's
requirements Contracts with Seller's vendors terminable at will or upon notice
of thirty (30) days or less without penalty; (iii) any Contract not involving a
monetary obligation in excess of $25,000 payable within a 12 month period; and
(iv) employment contracts for Persons who are not Hired Employees.
7
"Modem Inventory" means modems and related supplies and parts owned by
Seller at the CMB Sites or in transit from or to the CMB sites.
"Operating Leases" means operating leases with any Person under which
Seller is the lessee of, or holds or uses, any machinery, equipment, vehicles or
other tangible personal property owned by any Person (and does not include
Capital Leases).
"Other Current Assets" means any current assets of Seller used in or
primarily relating to or necessary for the Cable Modem Business as of the
Closing Date, included in the Acquired Assets and transferred to Holdco at the
Closing, determined in accordance with GAAP, other than Adjusted Accounts
Receivable, Assigned Security Deposits and Prepayments. Other Current Assets
shall not include Other Inventory, the Intercompany Payments or Excluded Assets.
"Other Current Liabilities" means accrued expenses and other current
Liabilities (determined in accordance with GAAP) of Seller as of the Closing
Date in relation to the Cable Modem Business that are included in the Assumed
Liabilities and assumed by Holdco at the Closing. Other Current Liabilities
shall include, without limitation, (a) all accrued and unpaid real property and
personal property taxes (taking into account Section 8.15(b)), (b) accrued (in
accordance in with GAAP) and unpaid expenses relating to the Acquired Assets for
periods prior to the Closing Date and (c) any amounts due with respect to
franchise fees. Notwithstanding the foregoing, Other Current Liabilities shall
not include Assumed Capital Lease Liabilities, Assumed Real Estate Lease
Liabilities, Assumed Operating Lease Liabilities, CSR Charges (as defined in
Section 8.22 below), Accounts Payable, Hired Employee Costs, real property and
personal property taxes and accrued and unpaid expenses relating to the Acquired
Assets attributable to post-Closing periods (taking into account Section
8.15(b)), Transfer Taxes and any liability of Seller in respect of Taxes in
accordance with Section 2.04(e) hereof.
"Other Inventory" means all inventory owned by Seller other than the
Modem Inventory.
"Permits" means any permits, licenses, franchises and other
authorizations by or of any Governmental Authority that are owned or held by or
otherwise have been granted to or for the benefit of Seller and that relate to
the operation of the Cable Modem Business or the CMB Sites.
"Permitted Liens" means the following Liens: (a) Liens for Taxes,
assessments and governmental charges not yet due and payable or Taxes being
contested in good faith by appropriate proceedings, all of which as of the date
hereof are disclosed on Schedule 1.01(i); (b) zoning laws and ordinances and
similar Legal Requirements; (c) any right reserved to any Governmental Authority
to regulate the affected property; (d) in the case of any leased Acquired Asset,
(i) the rights of any lessor and (ii) any Lien granted by any lessor of such
leased Acquired Asset; (e) inchoate materialmens', mechanics', workmen's,
repairmen's or other like inchoate Liens arising in the ordinary course of
business which constitute Assumed Liabilities; (f) in the case of Real Property
Leases, any easements, rights-of-way, servitudes, permits, restrictions and
minor imperfections or irregularities in title which do not individually or in
the aggregate materially interfere with the right to convey such leasehold or
other interest; or (g) any Lien that
8
does not individually or in the aggregate together with other Permitted Liens
interfere with the continued use of the Acquired Assets subject thereto or the
operation of the Cable Modem Business as currently being conducted; provided,
that the dollar amount of the financial obligations to which any Permitted Lien
or Liens relate shall not exceed $50,000 in the aggregate (provided, further
that such $50,000 limit shall not apply to the Liens described in subparagraph
(a) above).
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, trust, unincorporated organization, other form
of business or legal entity or Governmental Authority.
"Prepayments" means all prepaid expenses of Seller as of the Closing
Date described on Schedule 1.01(h).
"Real Estate Leases" means leases or subleases of real property under
which Seller is a lessee or sub-lessee.
"Second NSA Agreement" means the Network Services Agreement, dated May
12, 2000, by and between Seller and CCI, as assigned by CCI to Holdco pursuant
to the Assignment and Assumption Agreement between CCI and Holdco dated August
1, 2000.
"Security Deposits" means security, restricted cash, vendor, utility or
other deposits.
"Series D Preferred Stock" means Series D Senior Convertible Preferred
Stock of Seller, par value $0.01 per share.
"Subsidiaries" means any entity directly or indirectly controlled by
Seller, including HSA Telecom Operating Co., Inc., HSA International, Inc. and
Digital Chainsaw, Inc.
"Tax" or "Taxes" means all taxes of any kind, charges, fees, customs,
duties, imposts, levies, required deposits or other assessments, including,
without limitation, all net income, gross receipts, ad valorem, value added,
alternative or add-on minimum (including taxes under Section 59A of the Code),
transfer, gains, franchise, profits, inventory, net worth, capital stock, asset,
sales, use, license, estimated, withholding, payroll, transaction, capital,
employment, social security, workers compensation, unemployment, excise,
severance, stamp, occupation, and personal and real property taxes, together
with any interest and any penalties, additions to tax or additional amounts,
imposed by any Federal, state, local or foreign taxing authority, whether
disputed or not, and shall include any liability pursuant to Treasury Regulation
ss.1.1502-6 or any tax sharing or contribution agreement and any transferee or
successor liability in respect of Taxes.
"Technology and Know-How" means all Trade Secrets, engineering
information, specifications, designs, drawings, processes and quality control
data, computer hardware, management information systems, Software, Marks, and
any other intangible property and applications for the same used or held for use
or in development for use by or for Seller primarily in relation to or necessary
for the operation of the Cable Modem Business, including any technology
evaluation reports and white papers, other than technology, know-how and other
9
intangible property and applications that are non-confidential and generally
known and used in the high speed Internet access industry.
"Transactions" means the sale and purchase of the Acquired Assets, the
assumption of the Assumed Liabilities, and the other transactions contemplated
by this Agreement and the other Transaction Documents.
"Transaction Documents" means this Agreement, the Voting Agreement, the
Management Agreement, the License Agreement, the Billing Letter Agreement and
all other documents and instruments to be executed and delivered in connection
with the transactions contemplated by this Agreement.
"Transfer Tax" or "Transfer Taxes" means any Federal, state, county,
local, foreign and other sales, use, transfer, conveyance, documentary transfer,
recording or other similar tax, fee or charge imposed upon the sale, transfer or
assignment of property or any interest therein or the recording thereof, and any
penalty, addition to tax or interest with respect thereto, but such term shall
not include any tax on, based upon or measured by, the net income, gains or
profits from such sale, transfer or assignment of the property or any interest
therein.
"WARN Act" means the Worker Adjustment and Retraining Notification Act
of 1988, as amended, and any successor Legal Requirement, and the rules and
regulations thereunder and under any successor law.
Terms defined in the singular shall have a comparable meaning when used
in the plural, and vice versa.
Section 1.02. Other Terms. Other capitalized terms may be defined
elsewhere in this Agreement and, unless otherwise indicated, shall have such
meaning throughout this Agreement.
Section 1.03. Interpretation.
(a) When a reference is made in this Agreement to a Section, Schedule
or Exhibit, such reference shall be to a Section of, or a Schedule or Exhibit
to, this Agreement unless otherwise indicated.
(b) The table of contents and headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(c) Whenever the words "include", "includes" or "including" are used in
this Agreement they shall be deemed to be followed by the words "without
limitation".
(d) Words denoting any gender shall include all genders. Where a word
or phrase is defined herein, each of its other grammatical forms shall have a
corresponding meaning.
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(e) A reference to any party to this Agreement or any other agreement
or document shall include such party's successors and permitted assigns.
(f) A reference to any legislation or to any provision of any
legislation shall include any modification or re-enactment thereof, any
legislative provision substituted therefor and all regulations and statutory
instruments issued thereunder or pursuant thereto.
(g) All references to "$" and dollars shall be deemed to refer to
United States currency unless otherwise specifically provided.
(h) Unless otherwise specifically provided herein, all references to
any financial or accounting terms shall be defined in accordance with GAAP.
(i) The term "day", unless specified as a "Business Day", means a
calendar day.
(j) The phrases "the date of this Agreement", "the date hereof", and
terms of similar import, unless the context otherwise requires, shall be the
date referenced in the Recitals hereto.
ARTICLE II
TRANSFER OF ASSETS AND LIABILITIES
Section 2.01. Purchase and Sale of Assets. On the terms and subject to
the conditions of this Agreement, at the Closing, Seller will sell, assign,
transfer, convey and deliver to Holdco, and Holdco will purchase, acquire and
accept from Seller, all right, title and interest of Seller or any of its
Subsidiaries in and to the Acquired Assets free and clear of all Liens other
than Permitted Liens. The term "Acquired Assets" means all of the business,
properties, assets, contracts, permits, licenses, authorizations, interests,
claims, goodwill and rights of Seller, whether real or personal, tangible or
intangible, and wherever located, that are owned, leased, used or held for use
by Seller or any of its Subsidiaries primarily in, or primarily relating to or
necessary to the performance of, the Cable Modem Business, other than the
Excluded Assets. The Acquired Assets include, without limitation, the following:
(a) the Assumed Real Estate Leases;
(b) the Assumed Capital Leases;
(c) the Assumed Operating Leases;
(d) the Assigned Security Deposits;
(e) subject to Section 2.02(h), all Fixtures and Equipment, including,
but not limited to, those set forth on Schedule 2.01(e);
(f) the Assigned Voice & Data Circuits;
(g) all Accounts Receivable;
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(h) the Assumed Contracts;
(i) the CMB Intellectual Property, including, but not limited to, the
CMB Intellectual Property set forth on Schedule 2.01(i);
(j) the Technology and Know-How, including, but not limited to, the
Technology and Know-How set forth on Schedule 2.01(j);
(k) all Permits, including, but not limited to, those set forth on
Schedule 2.01(k);
(l) all CMB Claims;
(m) all Prepayments;
(n) the Other Current Assets;
(o) all Modem Inventory;
(p) the CMB Business Records; and
(q) all goodwill related to the foregoing assets.
Seller and Holdco acknowledge that the Accounts Receivable,
Prepayments, CMB Claims, Other Current Assets, Modem Inventory and CMB Business
Records included in the Acquired Assets may change in the ordinary course of
business consistent with Section 7.01.
Section 2.02. Excluded Assets. The term "Excluded Assets" means all
assets of Seller other than the Acquired Assets, including the following:
(a) the capital stock in each of the Subsidiaries;
(b) all contracts, agreements, commitments and other legally binding
arrangements, whether oral or written, other than the Assumed Contracts;
(c) all Security Deposits other than the Assigned Security Deposits;
(d) all Real Estate Leases other than the Assumed Real Estate Leases;
(e) all Capital Leases other than the Assumed Capital Leases;
(f) all Operating Leases other than the Assumed Operating Leases;
(g) all voice circuits, data circuits and related contracts and
agreements other than the Assigned Voice & Data Circuits, including those set
forth on Schedule 2.02(g)
(h) the Fixtures and Equipment set forth on Schedule 2.02(h);
(i) all Other Inventory;
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(j) all assets (including, without limitation, facilities, equipment,
intellectual property, technology, permits and licenses) that are both (i) used
primarily in businesses other than the Cable Modem Business and (ii) not
necessary for the performance of the Cable Modem Business;
(k) all cash on hand or in banks and all cash equivalents or similar
type investments, uncollected checks, bank accounts, certificates of deposit,
Treasury bills and other marketable securities;
(l) all insurance policies of Seller and rights thereunder, including,
without limitation, all insurance proceeds received prior to the Closing, or
rights to insurance proceeds receivable after the Closing (except as otherwise
provided in Section 2.05 hereof);
(m) all rights, claims and causes of action relating to any of the
Excluded Liabilities or the Excluded Assets;
(n) all rights and claims for refunds of, or credits against, Taxes
(including all investment tax credits, research credits and credits for
prepayments of Taxes), except as otherwise provided in Section 8.15(b); and
(o) the miscellaneous assets set forth on Schedule 2.02(o).
Section 2.03. Assumption of Liabilities. On the terms and subject to
the conditions of this Agreement, Holdco hereby agrees to assume, effective as
of the Closing, and agrees to pay, perform and discharge when due, the following
(collectively the "Assumed Liabilities"):
(a) Except as set forth in Section 2.03(b) below, all Liabilities of
Seller accruing and relating to periods on or after the Closing Date in respect
of the Acquired Assets as assigned and transferred to Holdco at the Closing
(taking into account Section 8.15); and
(b) the following Liabilities of Seller without regard to the periods
to which such Liabilities relate:
(i) the Assumed Current Liabilities;
(ii) the Assumed Capital Lease Liabilities;
(iii) the Assumed Operating Lease Liabilities; and
(iv) the Assumed Real Estate Lease Liabilities.
Section 2.04. Excluded Liabilities. All Liabilities of Seller or any of
its Subsidiaries, whether or not arising out of the Acquired Assets or the Cable
Modem Business, other than the Assumed Liabilities, will remain and be the
obligations and liabilities solely of Seller and will be "Excluded Liabilities",
including, without limitation, the following:
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(a) any Liabilities of Seller or any of its Subsidiaries to the extent
not arising out of, relating to or otherwise in respect of the Acquired Assets
or the Cable Modem Business (or the operations thereof);
(b) any Liability of Seller or any of its Subsidiaries (i) for or
arising out of any indebtedness of Seller or any of its Subsidiaries for
borrowed money, (ii) for any credit, loan or other agreements arising out of or
relating to the Acquired Assets and pursuant to which Seller or any of its
Subsidiaries has created, incurred, assumed or guaranteed indebtedness for
borrowed money or under which any Lien securing such indebtedness has been or
may be imposed on any Acquired Asset or (iii) with respect to any financial
obligation underlying any Permitted Lien existing as of the Closing Date;
(c) all Liabilities arising out of the leasing or operation of (i) the
CMB Sites before the Closing Date and (ii) any property or facility other than
the CMB Sites at any time, including without limitation any Liabilities relating
to personal injury, property damage, the environment, on-site or off-site waste
disposal or any contractual indemnification provided in connection with such
property or facility;
(d) any Liability of Seller or any of its Subsidiaries under contracts,
agreements, commitments and other legally binding arrangements, whether written
or oral to which Seller or any of its Subsidiaries is a party or is bound, other
than (1) Liability under the Assumed Contracts to the extent such Contracts are
validly assigned to Holdco and do not relate to acts or omissions of Seller
occurring prior to the Closing Date or which are to be paid, performed or
satisfied prior to the Closing Date and (2) Assumed Current Liabilities to the
extent that such Liabilities relate to Assumed Contracts that are validly
assigned to Holdco;
(e) any Liability of Seller or any of its Subsidiaries in respect of
Taxes (including real or personal property Taxes) for all periods ending on or
prior to the Closing Date (except as otherwise provided in Section 8.15 hereof);
(f) any Liability with respect to (i) any employment agreement or
understanding with any employee of Seller, whether written or oral (except with
respect to the Hired Employee Costs), (ii) any agreement, plan or policy
relating to Seller's employees or employment matters, including, without
limitation, any stock option or other incentive plan, Benefit Plan, consulting,
severance, change of control or similar agreement and (iii) any Employee Claims
to the extent relating to events occurring prior to the Closing Date; and
(g) any claim, action, suit, proceeding, arbitration, investigation or
hearing, any tolling, settlement or license agreement with respect to any of the
foregoing, or any other activity or procedure, or any notice of any of the
foregoing which could result in any judgment, writ, order, injunction, award or
decree of any court, judge, justice or magistrate, including any bankruptcy
court or judge or the arbitrator in any binding arbitration, and any order of or
by any Governmental Authority arising out of or relating to the Acquired Assets
and commenced, or related to an event occurring, on or prior to the Closing
Date.
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Section 2.05. Risk of Loss; Condemnation.
(a) Seller shall bear the risk of loss of, and all obligations, if any,
to insure, the Acquired Assets prior to the Closing, and such risk of loss and
obligation to insure with respect to the Acquired Assets shall transfer, with
the Acquired Assets, from Seller to Holdco at the Closing. If any such loss or
damage is so substantial as to prevent the operation of any material portion of
the Acquired Assets or Cable Modem Business or the replacement or restoration of
the lost or damaged property within 45 days after the occurrence of the event
resulting in such loss or damage, Seller will promptly notify Holdco of that
fact and Holdco, at any time within 10 days after receipt of such notice, may
elect by written notice to Seller to either (i) waive such defect or (ii)
terminate this Agreement pursuant to Article X hereof. If Holdco elects to so
terminate this Agreement, Holdco and Seller will be discharged of any and all
obligations hereunder, subject to Article X hereof. If, on the other hand,
Holdco elects to waive such defect notwithstanding such loss or damage, there
will be no adjustment to the Purchase Price on account of such loss or damage,
but upon the consummation of the transactions contemplated by this Agreement,
all insurance proceeds payable as a result of the occurrence of the event
resulting in such loss or damage (other than insurance proceeds in respect of
"business interruption" damages based upon lost profits or business
opportunities) will be delivered by Seller to Holdco, or the rights to such
proceeds will be assigned by Seller to Holdco if not yet paid over to Seller.
(b) If, prior to the Closing, all or any part of, or interest in, the
Acquired Assets is taken or condemned as a result of the exercise of the power
of eminent domain, or if a Governmental Authority having such power informs
Seller or Holdco that it intends to condemn all or any part of the Acquired
Assets (such event being called, in either case, a "Taking"), then (i) Holdco
will have the sole right, in the name of Seller, if Holdco so elects, to
negotiate for, claim and contest (and shall have the right to receive all
damages at the Closing with respect to) the Taking, (ii) Seller will be relieved
of its obligation to convey to Holdco the Acquired Assets or interests that are
the subject of the Taking, (iii) at the Closing, Seller will assign to Holdco
all of Seller's rights to all damages payable with respect to such Taking and
will pay to Holdco all damages previously paid to Seller with respect to the
Taking, and (iv) following the Closing, Seller will give Holdco such further
assurances of Seller's rights and the assignment of Seller's rights, in each
case with respect to the Taking as contemplated in clauses (i) through (iii)
above, as Holdco may from time to time reasonably request. The foregoing will
not affect or limit the scope of any representation or warranty of Seller in
this Agreement.
Section 2.06. Assignment of Contracts, Etc. Notwithstanding anything
contained herein to the contrary, no Contracts, Real Estate Leases, Capital
Leases, Operating Leases, Intellectual Property, Technology and Know-How or
Permits shall be assigned contrary to any Legal Requirement or the terms
thereof. If there are Contracts, Real Estate Leases, Capital Leases or Operating
Leases which form part of the Acquired Assets that cannot be assigned or novated
to Holdco on the Closing Date, the performance obligations of Seller thereunder
shall, if so elected by Holdco, in its sole discretion (unless not permitted by
such Contracts, Real Estate Leases, Capital Leases or Operating Leases) be
deemed to be subleased or subcontracted to Holdco until such Contracts, Real
Estate Leases, Capital Leases or Operating Leases have been assigned or novated
(it being understood that the failure to obtain such consents shall not reduce
the Purchase Price). Holdco shall take all necessary actions to perform
15
and complete all Contracts, Real Estate Leases, Capital Leases or Operating
Leases which form part of the Acquired Assets in accordance with their terms if
neither assignment, novation, subleasing nor subcontracting is permitted by the
other party. Seller shall pay over to Holdco any amounts received by Seller or
its Subsidiaries after the Closing (in so far as they relate to post-Closing
periods or performance) as a result of performance by Holdco of such Contracts,
Real Estate Leases, Capital Leases or Operating Leases, which payment shall be
made promptly, but in no event more than ten (10) days following receipt thereof
by Seller or any of its Subsidiaries (without set off or demand of any kind).
Nothing contained in this Section 2.06 shall prevent Holdco from exercising its
right to terminate this Agreement pursuant to Section 10.1(d) as a result of
conditions contained in Section 9.02 not being satisfied. Notwithstanding
anything to the contrary herein, Holdco shall be entitled to indemnification for
Damages (subject to the terms of Article XI hereof) with respect to any failure
by Seller to assign or novate any Assumed Contract, Assumed Real Estate Lease,
Assumed Capital Lease or Assumed Operating Lease.
ARTICLE III
PURCHASE PRICE
Section 3.01. Purchase Price. Subject to Sections 3.02 and 3.03, the
purchase price for the Acquired Assets (the "Purchase Price") shall be (i)
$81,100,000 in cash (the "Cash Amount"), (ii) 75,000 shares of Series D
Preferred Stock, together with the cancellation of any rights to dividends with
respect to such shares, and (iii) the cancellation of the Charter Warrants.
Section 3.02. Holdbacks. At the Closing, Holdco shall set aside and
hold back the following from the Purchase Price, as adjusted pursuant to
(a) cash in the amount of Seven Hundred Fifty Thousand Dollars
($750,000) for use in effectuating the settlement of the adjustments under
Section 3.03 (the "Adjustment Holdback"); and
(b) cash in the amount of Four Million Dollars ($4,000,000) for use in
effectuating the settlement of indemnity claims under Article XI (the
"Indemnification Holdback").
The Adjustment Holdback shall not bear interest or be subject to any charge or
expense by Holdco.
Section 3.03. Purchase Price Adjustments. At the Closing, the Purchase
Price shall be adjusted in the manner set forth on Schedule 3.03. The Purchase
Price shall be adjusted, and Schedule 3.03 shall provide, as follows:
(a) the Cash Amount shall be reduced by the amount of each of (i)
Assumed Capital Lease Liabilities, (ii) Assumed Current Liabilities, and (iii)
the CSR Charges; and
(b) the Cash Amount shall be increased by the amount of the Acquired
Current Assets.
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For the avoidance of doubt, the dollar amount of each Adjustment Item (as
defined in Section 3.04(a) below) that will be set forth on Schedule 3.03 shall
be determined in accordance with Section 3.04(a), subject to further adjustment
in accordance with Sections 3.04(b) and (c).
Section 3.04. Determination of Adjustments.
(a) Closing Statement.
(i) Five (5) Business Days prior to the date of the Seller
Stockholder Meeting (as defined in Section 8.01 below), Holdco and Seller shall
jointly prepare a statement (the "Closing Statement") in the form attached as
Schedule 3.03. The Closing Statement shall set forth (A) Seller's good faith
estimate of the Assumed Capital Lease Liabilities, Acquired Current Assets and
Assumed Current Liabilities, including all line items of each, in each case as
of the Closing Date, and (B) Holdco's good faith estimate of the CSR Charges as
of the Closing Date. Holdco and Seller shall deliver to each other a copy of all
supporting evidence and work papers, books and records associated with such
preparation of their respective entries on the Closing Statement as each party
may reasonably request. Holdco and Seller will have five (5) Business Days
following the completion of the Closing Statement to review the other party's
entries on the Closing Statement and supporting information and to notify the
other party of any disagreements with the other party's estimates therein. If
Holdco or Seller provides a written notice of disagreement (the "Disagreement
Notice") with all or any of the other party's entries on the Closing Statement
within such five (5) Business Day period, Holdco and Seller will negotiate in
good faith to resolve any such dispute prior to the Closing. If no Disagreement
Notice is delivered or if a Disagreement Notice is delivered and the parties
resolve any such dispute before the Closing, then they shall each sign a
certificate to that effect and the Purchase Price shall be adjusted at the
Closing by the agreed upon amount. If a dispute can not be resolved on or before
the Closing, then the Purchase Price shall be adjusted at the Closing as
follows:
(1) with respect to each line item of the Assumed Capital Lease
Liabilities, Acquired Current Assets, Assumed Current Liabilities and CSR
Charges (each such line item referred to herein as an "Adjustment Item")
about which there is no good faith dispute at the Closing, by the full
amount of each such Adjustment Item as set forth on the Closing Statement;
and
(2) with respect to Adjustment Items about which there is a
good faith dispute in amount, by the undisputed amount of such item set
forth on the Disagreement Notice plus one-half of the difference between
each party's estimate of the amount of the Adjustment Item at issue.
Regardless of the amount of the Purchase Price adjustments made pursuant to this
Section 3.04(a)(i), Holdco shall hold back the entire amount of the Adjustment
Holdback.
(ii) Within thirty (30) days after the Closing Date, if either
party determines that all or any of its entries on the Closing Statement are
inaccurate, it will deliver a corrected Closing Statement to the other party,
indicating the corrections made (the "Corrections") and a copy of all supporting
evidence and work papers, books and records associated with the Corrections. The
aggregate dollar amount of the Corrections will, if
17
undisputed by the other party, be deemed to be final and binding; provided,
however, that all or any of the Corrections may be disputed pursuant to Section
3.04(a)(iii).
(iii) Within sixty (60) days after the Closing Date, Holdco and
Seller shall deliver to each other a written notice setting forth their
respective objections to the other party's entries on the Closing Statement,
including any objections to the Corrections and any adjustment made at the
Closing pursuant to Section 3.04(a)(i), together with a summary of the reasons
therefor and its determination of each Adjustment Item to which it objects
(collectively, the "Second Disagreement Notice"). In connection with its review
and verification of a Second Disagreement Notice, each party shall be permitted
to review all supporting evidence and work papers, books and records associated
with such preparation as such party may reasonably request.
(iv) If a party:
(1) does not timely deliver a Disagreement Notice or a Second
Disagreement Notice, then the other party's entries on the Closing
Statement shall be deemed final and binding as of such sixtieth (60th) day
after the Closing Date;
(2) timely delivers a Disagreement Notice and such dispute is
resolved with respect to all Adjustment Items in dispute on such
Disagreement Notice prior to the Closing pursuant to Section 3.04(a)(i) and
the party that delivered the Disagreement Notice does not timely deliver a
Second Disagreement Notice then the other party's entries on the Closing
Statement and so agreed shall be deemed final and binding as of such
sixtieth (60th) day after the Closing Date; or
(3) timely delivers a Disagreement Notice and such dispute is
not resolved with respect to all Adjustment Items in dispute on such
Disagreement Notice prior to the Closing (such that an adjustment of one or
more Adjustment Items is made at the Closing pursuant to Section
3.04(a)(i)) then if neither party timely delivers a Second Disagreement
Notice with respect to such disputed items, such Closing adjustments shall
be deemed final and binding as of such sixtieth (60th) day after the
Closing Date.
(v) Holdco and Seller shall have thirty (30) days after delivery of
a Second Disagreement Notice to object to the Second Disagreement Notice. If the
party receiving the Second Disagreement Notice does not so object in writing
within such period, then the Second Disagreement Notice shall be deemed final
and binding on the thirtieth (30th) day after delivery thereof. If the party
receiving the Second Disagreement Notice does object to such notice in writing
within such period, such written notice shall include a reasonably specific
description of the basis of its objections. Holdco and Seller shall negotiate in
good faith to resolve any dispute during the five (5) Business Day period
following delivery of the written objection. If Holdco and Seller resolve all
such differences and each signs a certificate to that effect, the Second
Disagreement Notice, as adjusted, shall be deemed final and binding for purposes
of this Agreement. If Holdco and Seller are unable to resolve all of such
differences, the Adjustment Items as to which the parties have agreed shall be
final and binding for purposes of this Agreement (and the parties shall issue an
appropriate certificate), the remaining items
18
shall be determined as provided in Section 3.04(b) below and final settlement of
the Adjustment Items shall be made in accordance with Section 3.04(c) below.
(b) Adjustment Dispute Resolution. To resolve any disputes in
connection with the calculation of Adjustment Items that are not resolved
pursuant to the procedures set forth in Section 3.04(a) above, the parties shall
submit the dispute to Ernst & Young LLP, certified public accountants, or such
other nationally recognized firm of independent public accountants that does not
serve as an auditor of, or consultant to, Holdco, Seller or any of their
respective Affiliates (an "Independent Accounting Firm") as may be jointly
selected by Seller and Holdco, who shall, acting as experts and not as
arbitrators, determine on the basis of the standards set forth herein and only
with respect to the remaining differences so submitted, whether and to what
extent, if any, an Adjustment Item at issue requires adjustment. The Independent
Accounting Firm will base its determination only on evidence brought to it by
the parties and shall not conduct an audit. The Independent Accounting Firm
shall deliver its written determination to Holdco and Seller no later than the
thirtieth (30th) day after the submission to it of the Disagreement Notice
and/or Second Disagreement Notice and a statement of the objections of Holdco or
Seller, as the case may be, thereto, and, in any case, as soon as practicable
after such submission. The Independent Accounting Firm's determination shall be
conclusive and binding upon the parties. With respect to each disputed
Adjustment Item, the fees and disbursements of the Independent Accounting Firm
associated with determining that Adjustment Item shall be allocated between
Holdco and Seller in inverse proportion to the allocation of the disputed amount
of such Adjustment Item made by the Independent Accounting Firm between Holdco
and Seller. For example, if Seller contended that the amount of the Prepayments
Adjustment Item was $300,000 and Holdco delivered a Second Disagreement Notice
objecting to such amount contending that is was only $200,000, then the amount
in dispute with respect to such Adjustment Item would be $100,000. Accordingly,
if the Independent Accounting Firm determined that the correct amount was
$260,000, Holdco would pay 60% and Seller would pay 40% of the fees and
disbursements associated with the Independent Accounting Firm's determination of
the Prepayment amount. For purposes of the foregoing calculation, the parties
shall instruct the Independent Accounting Firm to provide a breakdown of its
overall fees and disbursements between each Adjustment Item which is submitted
to the Independent Accounting Firm for resolution. Holdco and Seller shall make
available to the Independent Accounting Firm all relevant books and records and
any work papers relating to the Second Disagreement Notice and all other items
reasonably requested by the Independent Accounting Firm.
(c) Final Settlement of Adjustments; Release of Adjustment Holdback.
Final settlement of the Purchase Price adjustments described in this Section
3.04 shall be made after all, and not less than all, Adjustment Items have been
deemed final pursuant to Sections 3.04(a) and (b) above (the "Settlement Date").
If, after giving effect to the Purchase Price adjustments to which the parties
have agreed or were deemed final and binding pursuant to Section 3.04(a) or as
determined by the Independent Accounting Firm as contemplated in Section
3.04(b), as the case may be, the Purchase Price is increased from the amount
paid at the Closing, then Holdco shall pay such amount together with the
Adjustment Holdback to Seller no later than five (5) Business Days after the
Settlement Date. Any amount payable by Holdco pursuant to the preceding sentence
shall not bear interest. If, after giving effect to the Purchase Price
adjustments to which the parties have agreed or were deemed final and binding
pursuant to Section 3.04(a) or as
19
determined by the Independent Accounting Firm acting as contemplated in Section
3.04(b), as the case may be, the Purchase Price is reduced from the amount paid
at the Closing, then Holdco may hold back and set-off such amount from the
Adjustment Holdback and shall return the excess amount of the Adjustment
Holdback, if any, to Seller not later than five (5) Business Days after the
Settlement Date, and, if the reduction is greater than the Adjustment Holdback,
Seller shall pay such excess amount to Holdco no later than five (5) Business
Days after the Settlement Date. Any amount payable by Holdco to Seller or by
Seller to Holdco pursuant to the preceding sentence shall not bear interest.
Section 3.05. Allocation of Purchase Price. As soon as practicable
after the Closing, but in no event later than 120 days after the Closing Date,
Holdco will deliver to Seller a written estimate of the allocation of the
Purchase Price as adjusted pursuant to Section 3.04, plus any liabilities
assumed for Federal income tax purposes, among the Acquired Assets, as such
Acquired Assets existed immediately prior to the Closing Date consistent with
the principles of Code Section 1060. Seller shall notify Holdco in writing
within thirty (30) days after receiving Holdco's estimate of the allocation if
Seller disagrees with Holdco's allocation. If Seller does not deliver written
notice of objection to Holdco within such thirty (30) day period, then Holdco's
estimate shall be deemed to have been accepted by Seller, shall become final and
binding upon the parties (the "Final Allocation"). During the thirty (30) days
immediately following the delivery of notice of objection, Seller and Holdco
shall use reasonable good faith efforts to agree on the Final Allocation among
the Acquired Assets pursuant to the principles of Code Section 1060. If the
Purchase Price is adjusted pursuant to Section 3.04 or Section 11.04 hereof,
such adjustment shall be reflected in the Final Allocation hereunder in a manner
consistent with Code Section 1060. If at the end of such thirty (30) day period
the parties fail to reach agreement on the Final Allocation among the Acquired
Assets, then the parties shall engage an appraisal firm to determine such Final
Allocation (which determination shall be binding on the parties hereto). During
the review by the appraisal firm, Holdco and Seller will each make available to
the appraisal firm such individuals and such information, books and records as
may be reasonably required by the appraisal firm to determine the Final
Allocation. The fees and disbursements of any appraisal firm shall be shared
equally between Holdco and Seller. Holdco and Seller shall prepare and timely
file IRS Forms 8594 and any other similar forms required to be filed by any
other taxing Governmental Authority employing the Final Allocation to report the
Transactions to the Internal Revenue Service and to all other taxing
Governmental Authorities. Neither Seller nor Holdco shall take a position in any
return, Tax proceeding, Tax audit or otherwise inconsistent with the Final
Allocation, unless a contrary treatment is required by law.
ARTICLE IV
THE CLOSING
Section 4.01. Closing Date. The closing of the purchase, assignment and
sale of the Acquired Assets and the assumption of the Assumed Liabilities (the
"Closing") will take place at the offices of Paul, Hastings, Xxxxxxxx & Xxxxxx
LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 a.m. on a date mutually
agreed to by Holdco and Seller (the "Closing Date"), which date shall be as soon
as practicable (but in no event later than 5 Business Days) after the
satisfaction or waiver of the conditions set forth in Article IX (other than
those that by their nature cannot be satisfied until the time of Closing).
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Section 4.02. Deliveries by Seller at the Closing. At the Closing,
Seller shall deliver to Holdco:
(a) by wire transfer of immediately available funds to an account
designated in writing by Holdco at least 2 Business Days prior to the Closing,
the fixed amount calculated as set forth on Schedule 4.02(a) (less any portion
thereof paid by Seller between the date hereof and the Closing Date), which
amount is due and payable by Seller to Holdco;
(b) duly executed deeds, bills of sale, assignments and other documents
and instruments of transfer providing for the sale, assignment, transfer,
conveyance and delivery of the Acquired Assets in form and substance reasonably
satisfactory to Holdco (it being understood that any such deed, xxxx of sale,
assignment or other document or instrument shall not provide for any
representations or warranties not otherwise expressly provided for in this
Agreement);
(c) the officer's certificates required to be delivered pursuant to
Sections 9.02(a), (b) and (c);
(d) evidence of each of the consents described in Section 9.02(d) in
form and substance reasonably satisfactory to Holdco;
(e) the opinion of Weil, Gotshal & Xxxxxx LLP, counsel to Seller, , as
described in Section 9.02(f);
(f) any other documents or instruments that are requested by Holdco
during the period from the date of this Agreement to the Closing Date that are
necessary or reasonably appropriate to evidence the transfer of the CMB
Intellectual Property, Technology and Know-How or CMB Business Records;
(g) evidence of payment in full of all financial obligations under the
Master Agreement to Lease Equipment, dated May 18, 1999 between Seller and Cisco
Systems Capital Corporation, in form and substance reasonably satisfactory to
Holdco;
(h) a FIRPTA Non-Foreign Seller Certificate from Seller certifying that
it is not a foreign person within the meaning of Section 1445 of the Code
reasonably satisfactory in form and substance to Holdco; and
(i) properly executed copies of each of the Transaction Documents to
which Seller is a party and which have not been delivered prior to the Closing
Date.
Section 4.03. Deliveries by Holdco at the Closing. At the Closing,
Holdco shall deliver to Seller:
(a) by wire transfer of immediately available funds to an account
designated in writing by Seller at least 2 Business Days prior to the Closing,
an amount equal to $81,100,000 less (i) the initial Purchase Price adjustments
set forth in Section 3.03; (ii) the Adjustment Holdback; and (iii) the
Indemnification Holdback;
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(b) by wire transfer of immediately available funds to an account
designated in writing by Seller at least 2 Business Days prior to the Closing,
the fixed amount calculated as set forth on Schedule 4.03(b) (less any portion
thereof paid by Holdco between the date hereof and the Closing Date), which
amount is due and payable by Holdco to Seller;
(c) duly executed assumption agreements and other documents and
instruments of assumption providing for the assumption of the Assumed
Liabilities in form and substance reasonably satisfactory to Seller (it being
understood that any such agreement, document or instrument shall not provide for
any representations or warranties or any Liabilities that are not otherwise
expressly provided for in this Agreement);
(d) stock certificates representing 75,000 shares of Series D Preferred
Stock, which shall be tendered to Seller for cancellation, and Seller shall
accept such shares of Series D Preferred Stock so tendered, at which time such
shares shall be retired and cancelled and no amount shall be payable by Seller
with respect thereto;
(e) an instrument in writing executed by Holdco and Vulcan
acknowledging the cancellation of any rights to dividends with respect to the
75,000 shares of Series D Preferred Stock, whether such dividends are payable
before, on or after the Closing Date in form and substance reasonably
satisfactory to Seller;
(f) the Amended and Restated Securities Purchase Warrant dated as of
May 12, 2000 by and among Seller, CCI and Holdco (which warrants were assigned
by CCI to Holdco pursuant to the Assignment and Assumption Agreement between CCI
and Holdco dated August 1, 2000) (the "Charter Warrants"), which shall be
tendered to Seller for cancellation as contemplated in Section 8.13;
(g) the officer's certificates required to be delivered pursuant to
Sections 9.03(a), (b) and (c);
(h) the opinion of Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, counsel to
Holdco described in Section 9.03(d); and
(i) properly executed copies of each of the Transaction Documents to
which Holdco is a party and which have not been delivered prior to the Closing
Date.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Holdco as follows; provided,
that any of the representations and warranties that Seller makes with respect to
itself and the Acquired Assets shall also be deemed to be made by Seller with
respect to any Subsidiary of Seller that so holds, owns or has rights to any of
the Acquired Assets:
Section 5.01. Organization, Standing and Power. Seller is a corporation
duly organized, validly existing and in good standing under the laws of the
state of Delaware and has the requisite corporate power and authority to own,
lease and operate the Acquired Assets to be sold hereunder and to carry on the
Cable Modem Business as now being conducted. Seller is duly qualified as a
foreign corporation and is in good standing in each jurisdiction in which the
failure to be so qualified or in good standing would reasonably be expected to
have a Material Adverse Effect.
Section 5.02. Corporate Authorization.
(a) Seller has the requisite corporate power and authority to execute
and deliver this Agreement and the Transaction Documents to which Seller is a
party and to perform its obligations hereunder and thereunder. Other than the
Seller Requisite Vote (as hereinafter defined), no other corporate proceedings
on the part of Seller are necessary to authorize this Agreement or the other
Transaction Documents to which it is a party, or to consummate the Transactions.
This Agreement has been duly executed and delivered by Seller and constitutes,
and each Transaction Document to which Seller is a party will be duly executed
and delivered by Seller at or prior to the Closing and when so executed and
delivered will constitute, a legal, valid and binding obligation of Seller
enforceable against it, each in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting or relating to enforcement of creditor's rights and
remedies generally and subject, as to enforceability, to general principles of
equity.
(b) The Board of Directors of Seller (the "Seller's Board") has (i)
determined that this Agreement and the Transactions are fair to and in the best
interests of Seller, (ii) duly and validly authorized the execution and delivery
of this Agreement and approved the consummation of the Transactions, and (iii)
resolved to recommend that the stockholders of Seller vote in favor of a
resolution approving this Agreement and the transactions contemplated hereby.
The Seller's Board has directed that this Agreement be submitted to the
stockholders of Seller for their approval.
(c) The affirmative vote of (i) a majority of the votes entitled to be
cast by holders of outstanding shares of HSA Common Stock and Series D Preferred
Stock, voting together as a single class (it being understood that holders of
Series D Preferred Stock are entitled to one vote for each share of HSA Common
Stock into which their Series D Preferred Stock may be converted) and (ii) at
least two-thirds (2/3) of the votes entitled to be cast by holders of
outstanding shares of Series D Preferred Stock, voting separately as a single
class are, respectively, the only votes of the holders of any of Seller's
capital stock necessary in connection with the approval of this Agreement and
the transactions contemplated hereby. The stockholder
23
approvals set forth in clauses (i) and (ii) above are collectively referred to
herein as the "Seller Requisite Vote".
(d) The sale of the Acquired Assets to Holdco and the consummation of
the transactions contemplated hereby are not subject to the limitations or
requirements of the provisions of Section 203 of the Delaware General
Corporation Law, as amended (the "DGCL"), and no further action is necessary to
ensure that the restrictions contained in Section 203 of the DGCL will not apply
to Holdco in connection with or following such transactions. To Seller's
knowledge, no other state takeover statute is applicable to the transactions
contemplated by this Agreement.
Section 5.03. Non-Contravention. The execution and delivery by Seller
of this Agreement and the other Transaction Documents do not, and the
consummation by Seller of the Transactions and the compliance by Seller with the
provisions hereof and thereof will not, conflict with, or result in any
violation of or default (with or without notice or lapse of time, or both)
under, any provision of (i) the certificate of incorporation and by-laws of
Seller, assuming receipt of the Seller Requisite Vote, (ii) except as set forth
on Schedule 5.03, any contract, agreement, indenture, mortgage, lease,
commitment or obligation of Seller or by which Seller or its properties or
assets are bound, or (iii) subject to the governmental filings and other matters
referred to in Section 5.04, any Legal Requirement applicable to Seller's
operation of the Cable Modem Business or use of the Acquired Assets, other than
in the case of clause (ii) above, any such conflicts, violations, or defaults
that, individually or in the aggregate, would not reasonably be expected to have
a Material Adverse Effect.
Section 5.04. Governmental Filings; Consents. Except as set forth on
Schedule 5.04, no material consent, approval, license, permit, order or
authorization of, or registration, declaration or filing with, any Governmental
Authority or any third party is required to be obtained or made by or with
respect to Seller, the Acquired Assets or the Assumed Liabilities in connection
with the execution and delivery by Seller of this Agreement or the other
Transaction Documents to which Seller is a party or the consummation of the
Transactions or compliance by Seller with the provisions hereof or thereof,
except for (i) compliance with and filings under the HSR Act and (ii) those that
may be required solely by reason of Holdco's (as opposed to any other Person's)
participation in the Transactions.
Section 5.05. Acquired Assets. Except as set forth on Schedule 5.05,
the Acquired Assets are all of the material assets used in the operation of the
Cable Modem Business as it is conducted as of the date hereof.
Section 5.06. Absence of Certain Changes or Events. Except as set forth
on Schedule 5.06, or as specifically contemplated by this Agreement, since June
30, 2001 there has not been (i) any transaction, commitment, dispute or other
event or condition (financial or otherwise) of any character (whether or not in
the ordinary course of business), that individually or in the aggregate, has had
or would reasonably be expected to have a Material Adverse Effect or (ii) any
sale, assignment or transfer of any asset or property, or any damage,
destruction or loss, whether or not covered by insurance, which, individually or
in the aggregate, would reasonably be expected to have a Material Adverse
Effect.
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Section 5.07. Proxy Statement. The proxy statement of Seller (the
"Proxy Statement") to be filed with the SEC in connection with this Agreement
and any amendments and supplements thereto, will, when filed, comply as to form
in all material respects with the requirements of the Exchange Act. None of the
Proxy Statement or any amendment or supplement thereto will, at the date the
Proxy Statement or any such amendment or supplement is first mailed to
stockholders of Seller or at the time such stockholders vote on the approval of
this Agreement, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading. No representation or warranty is made by Seller in this
Section 5.07 with respect to statements made or incorporated by reference
therein based on information supplied by Holdco for inclusion or incorporation
by reference in the Proxy Statement or any amendment or supplement thereto.
Section 5.08. Compliance with Applicable Laws. Except as set forth on
Schedule 5.08, Seller complies in all material respects with all Legal
Requirements which apply to Seller's operation of the Cable Modem Business and
ownership or use of the Acquired Assets. This Section 5.08 does not apply to
Environmental Laws which are instead the subject of Section 5.14.
Section 5.09. Litigation; Decrees. Except as set forth on Schedule 5.09
and except for any lawsuit, action or proceeding brought after the date of this
Agreement by a Person seeking to delay or prevent, or otherwise challenging,
this Agreement or the transactions contemplated hereby, there is no lawsuit,
action or proceeding pending, or, to Seller's knowledge, threatened, against
Seller relating to the Cable Modem Business, the Acquired Assets or the
Transactions.
Section 5.10. Security Deposits. The Assigned Security Deposits are the
only Security Deposits of Seller in relation to the Assumed Real Estate Leases
and the Assumed Capital Leases.
Section 5.11. Contracts.
(a) Each Material Contract is set forth on Schedule 5.11(a)(i). Each
Contract limiting the right of Seller to compete is set forth on Schedule
5.11(a)(ii). A true, complete and correct copy of each Material Contract
together with each Assumed Capital Lease and each Assumed Operating Lease (and
all amendments, side letters, guarantees, agreements and addenda thereto) has
been delivered to Holdco.
(b) Each Material Contract, Assumed Capital Lease and Assumed Operating
Lease (i) has been duly authorized, executed and delivered by Seller and, to
Seller's knowledge, the other parties thereto, (ii) except as set forth on
Schedule 5.11(b), remains in full force and effect to the extent of its terms
without any waiver not reflected therein, and (iii) is the valid and binding
obligation of Seller, enforceable against Seller in accordance with its terms.
Seller has not received any written notice threatening or declaring termination
of a Material Contract, Assumed Capital Lease or Assumed Operating Lease as a
result of any alleged uncured breach or default. Seller has performed all
material obligations required to be performed by it to date under each Material
Contract, Assumed Capital Lease and Assumed Operating Lease, and Seller is not
25
in material breach or default under any Material Contract, Assumed Capital Lease
or Assumed Operating Lease. Neither Seller nor, to the knowledge of Seller, any
other party thereto, is in breach or default under (including any circumstances
that would result in a breach or default with notice or lapse of time or both)
any Material Contract, Assumed Capital Lease or Assumed Operating Lease in any
material respect. Neither Seller nor any other party thereto has waived any
material provision of any such Material Contract, Assumed Capital Lease or
Assumed Operating Lease or agreed to do so. Seller has not received any written
notice of breach or default or termination under any Material Contract, Assumed
Capital Lease or Assumed Operating Lease.
(c) Subject to Seller receiving the consent of any third parties
required to assign the Material Contracts, Assumed Capital Leases and Assumed
Operating Leases to Holdco and subject to the terms and conditions of any such
consent, except as otherwise expressly agreed by Seller and Holdco at the
Closing, Holdco will, by virtue of the assignment and assumption of such
Material Contracts, Assumed Capital Leases and Assumed Operating Leases
contemplated by this Agreement, succeed to the rights of Seller under (but
subject to all of the terms, conditions and limitations contained in) the
Material Contracts, Assumed Capital Leases and Assumed Operating Leases upon the
Closing.
Section 5.12. Real Property.
(a) Seller does not own any real property that forms part of the
Acquired Assets. Seller has valid and enforceable leasehold interests in the
Assumed Real Estate Leases free and clear of all Liens, other than Permitted
Liens, and such Assumed Real Estate Leases are in full force and effect. Neither
Seller nor, to Seller's knowledge, any other party thereto is in breach or
default, and no event has occurred that, with the giving of notice or passage of
time, would constitute a default thereunder in any material respect. Seller has
not received any notice of default by the landlord under any Assumed Real Estate
Lease.
(b) Seller has provided Holdco with access to true and complete copies
of each of the Assumed Real Estate Leases, including all amendments, side
letters, guarantees, agreements and addenda thereto. To Seller's knowledge, each
CMB Site and any improvements constructed thereon and their current use,
conforms in all material respects to (i) all applicable Legal Requirements, and
(ii) all restrictive covenants, if any, or other Liens affecting all or part of
such premises.
(c) There are no pending, or to Seller's knowledge, threatened
condemnation actions or special assessments or proceedings for changes in the
zoning with respect to the CMB Sites. Seller has complied in all material
respects with all notices or orders to correct violations of Legal Requirements
issued by any Governmental Authority to Seller in relation to the CMB Sites.
Section 5.13. Title to and Condition of the Acquired Assets.
(a) Except as set forth on Schedule 5.13, Seller has good and valid
title to, or holds by valid and subsisting lease or license, the Acquired Assets
free and clear of all Liens
26
other than Permitted Liens. This Section 5.13(a) does not apply to the CMB
Intellectual Property or Technology and Know-How which are instead the subject
of Section 5.15.
(b) The tangible Acquired Assets having an original purchase price, or
if leased under a Capital Lease or an Operating Lease, having aggregate lease
payments of, at least $10,000 are in good repair and operating condition
(subject to normal wear and tear).
Section 5.14. Compliance with Environmental Laws.
(a) Seller's operation of the Cable Modem Business and use of the
Acquired Assets complies in all material respects with applicable Environmental
Laws, and Seller is not aware of any Hazardous Substances, contamination
condition or pollution existing or resulting from Seller's operation of the
Cable Modem Business or use of the Acquired Assets that have given rise or could
give rise to any unsatisfied on-site or off-site response, removal, abatement,
closure or remedial obligations of Seller under applicable Environmental Laws.
(b) Without limiting clause (a) above, Seller's operation of the Cable
Modem Business and use of the Acquired Assets, (i) is not subject to any pending
action, suit or proceeding by or before any Governmental Authority under
applicable Environmental Laws and, to the knowledge of Seller, no such
proceeding has been threatened and (ii) to the knowledge of Seller, Seller is
not subject to any pending investigation or inquiry by any Governmental
Authority under applicable Environmental Laws or subject to any listing or the
threat of listing under Federal Superfund or state hazardous waste site
criteria.
(c) All material permits, licenses or similar authorizations, if any,
required to be obtained, retained or renewed by Seller under applicable
Environmental Laws in connection with the operation of the Cable Modem Business
and use of the Acquired Assets, including, without limitation, those relating to
the treatment, storage, disposal or release of Hazardous Substances have been
duly obtained, and, if applicable, retained or renewed, and Seller has complied
in all material respects with the terms and conditions of all such permits,
licenses and similar authorizations.
(d) To Seller's knowledge it has no material liability to any person or
entity as a result of any release of any Hazardous Substances in connection with
Seller's operation of the Cable Modem Business or use of the Acquired Assets.
Section 5.15. Intellectual Property Rights.
(a) Seller owns, licenses or has other valid rights, title and
interest, free and clear of all Liens, other than Permitted Liens, to use the
CMB Intellectual Property and the Technology and Know-How, without infringing
upon or otherwise acting adversely to the right of any third party, except where
the failure to so own, license or have such rights would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.
Schedule 5.15 sets forth all of the CMB Intellectual Property consisting of any
domestic or foreign Patents, Trademarks, Copyrights, Maskworks or licenses. All
of the CMB Intellectual Property and Technology and Know-How are valid and
enforceable rights of Seller and, subject to Section 5.15(e) below, will not
cease to be valid and in full force and effect by reason of the execution and
delivery of this Agreement or the consummation of the Transactions.
27
(b) Except as set forth on Schedule 5.15, at the Closing, Seller will
not be obligated or under any liability whatsoever to make any payments by way
of royalties, fees or otherwise to any owner or licensee of, or other claimant
to, any Intellectual Property on account of Seller's prior use or licensing of
the CMB Intellectual Property; provided, that Holdco, by virtue of the
assignment and assumption of CMB Intellectual Property and Technology and
Know-How contemplated hereby will be obligated in the ordinary course to pay
renewal license fees for Software licenses and related support/maintenance
agreements that Holdco elects to renew. Upon consummation of the Transactions,
except as set forth on Schedule 5.15, and disregarding any facts or
circumstances that are particular to Holdco and are not known by Seller or any
change in applicable law after the Closing Date, Holdco will be entitled to
operate the Cable Modem Business and use the Acquired Assets as the same are now
and have been operated and used respectively by Seller prior to the Closing Date
without such operation or use infringing upon, misappropriating, violating or
otherwise acting adversely to the Intellectual Property or other rights of any
Person (including rights to privacy or publicity), violating any export control
law or regulation, or constituting unfair competition or trade practices under
any applicable laws.
(c) To Seller's knowledge, no Person has any right to, or is infringing
or misappropriating, any rights with respect to the CMB Intellectual Property or
the Technology and Know-How or engaging in other conduct that may diminish or
undermine the CMB Intellectual Property, such as the disclosure of Seller's
confidential information.
(d) Seller has taken reasonable steps to protect Seller's rights in the
Technology and Know-How and confidential information provided by any other
Person to Seller subject to a duty of confidentiality. Without limiting the
foregoing, (i) Seller has, and enforces, a policy requiring each of its
executive officers and research and development personnel to execute
non-competition, confidentiality and non-solicitation agreements, and all such
individuals have executed such an agreement, and (ii) as between Seller and any
of Seller's employees and other Persons who, either alone or in concert with
others, developed, invented, discovered, derived, programmed or designed any of
the Technology and Know-How, or who has knowledge of or access to information
about any of the Technology and Know-How, such Technology and Know-How and other
information may not be divulged or used without the written consent of Seller.
(e) Subject to Seller receiving the consent of any third parties
required to assign the CMB Intellectual Property and the Technology and Know-How
to Holdco as contemplated by this Agreement and subject to the terms and
conditions of any such consent, except as otherwise expressly agreed by Seller
and Holdco at the Closing, Holdco will, by virtue of the assignment and
assumption of the CMB Intellectual Property and Technology and Know-How
contemplated by this Agreement, succeed to the rights of Seller under (but
subject to all of the terms, conditions and limitations contained in) all
agreements relating to the CMB Intellectual Property and Technology and Know-How
upon the Closing; provided that Holdco's ability to enforce the provisions of
any of such agreements, or to realize the benefits thereunder, may be affected
by facts or circumstances relating to the business or affairs of Holdco or its
Affiliates, including, without limitation, legal or regulatory requirements or
restrictions applicable to Holdco or its Affiliates, and Seller makes no
representation or warranty regarding
28
such matters or the effects such matters may have on the ability of Holdco to
realize the benefits of the CMB Intellectual Property and Technology and
Know-How.
Section 5.16. Taxes.
(a) Except as disclosed on Schedule 5.16, Seller has timely prepared
and filed in accordance with applicable law all federal and state income Tax
returns and all material other Tax returns required to be filed by it or with
respect to its operations and assets with respect to Taxes which could result in
a Lien on any of the Acquired Assets (other than a Lien for current Taxes not
yet due and payable) or for which Holdco or its Affiliates (other than Seller
and any Affiliate of Holdco that is a stockholder of Seller) could be liable,
and all Taxes shown as due on such Tax returns, or for which a notice of, or
assessment or demand for payment has been received or are otherwise due and
payable, have been timely paid, except for Taxes that are being contested in
good faith by appropriate proceedings. Such Tax returns were materially complete
and correct as of the date on which they were filed or as subsequently amended
and no facts have later become known by Seller to the contrary. Except as
disclosed on Schedule 5.16, Seller has received no revenue agent's reports or
other written or formal assertions of deficiencies or other liabilities for such
Taxes (including any reports, statements, summaries and other communications of
assertions or claims of deficiencies or other liabilities) with respect to
Seller for past periods for which the applicable statute of limitations has not
expired.
(b) Except for waivers and extensions disclosed on Schedule 5.16, there
are no waivers or extensions of any applicable statute of limitations for the
assessment or collection of Taxes with respect to any Tax return that relates to
Seller which could result in a Lien upon any of the Acquired Assets, and no
request for any such waiver or extension is currently pending.
(c) There are no Liens for Taxes (other than Permitted Liens and other
than for Taxes not yet due and payable) upon the Acquired Assets. Except as
disclosed on Schedule 5.16, no Lien, action, suit, proceeding, investigation,
audit, examination, request for information, claim or assessment is presently
pending or, to the knowledge of Seller, proposed with regard to any Taxes that
relate to Seller for which Holdco or its Affiliates would or could be liable or
which could result in a Lien on the Acquired Assets.
(d) Seller is not a "foreign person" within the meaning of Code Section
1445(f)(3) and Treasury Regulation Section 1.1445-2(b)(2)(i).
(e) The Acquired Assets are not subject to any joint venture,
partnership or other arrangement or contract that is treated as a partnership
for United States Federal income tax purposes.
Section 5.17. Employees, Labor Matters, Etc.
(a) Seller is not a party to or bound by any collective bargaining
agreement relating to any of its employees and independent contractors
(including directors) and to the knowledge of Seller, there are no labor unions
or other organizations representing, purporting to represent or attempting to
represent any of its employees and independent contractors (including
directors). To the knowledge of Seller, there are no labor disputes currently
subject to any grievance procedure, arbitration or litigation other than any
dispute or disputes that, individually
29
or in the aggregate, would not reasonably be expected to have a Material Adverse
Effect and there is no representation petition pending or, after due inquiry,
threatened with respect to any of its employees and independent contractors
(including directors).
(b) Seller and the employees of Seller listed on Schedule 8.09(k) are
parties to employment agreements which prohibit each such employee from hiring
directly or through another entity any person who was an employee of Seller at
any time during the period of such employee's employment (the "Post-Employment
Hiring Prohibition").
Section 5.18. Employee Benefit Plans. Except as set forth on Schedule
5.18 or as would not, either individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, (i) each of the Benefit Plans and
its related trust intended to qualify under Sections 401, and 501(a) of the
Code, respectively, so qualify, (ii) each of the Benefit Plans complies and has
been administered and operated in compliance in all material respects with its
terms and all Legal Requirements, including ERISA and the Code, and (iii) no
Benefit Plan is subject to Title IV of ERISA, is a "multiemployer plan" within
the meaning of Section 3(37) of ERISA.
Section 5.19. Brokers. Except for Xxxxxx Brothers Inc. ("Xxxxxx") and
Xxxxxxxx Xxxxx, whose fees will be paid by Seller, no investment banker, broker,
finder, other intermediary or other Person is entitled to any fee or commission
from Seller or any of its Subsidiaries upon consummation of the transactions
contemplated by this Agreement.
Section 5.20. Solvency of Seller. Immediately after the Closing, the
fair market value of Seller's assets will exceed all of Seller's Liabilities.
Section 5.21. Opinion of Financial Advisors. Seller has delivered to
Holdco a true and correct copy of (i) the Xxxxxx Opinion, and (ii) the Xxxxxxxx
Xxxxx Opinion. As of the date of the Xxxxxxxx Xxxxx Opinion, (i) the data,
material and other information, with respect to Seller, furnished to Xxxxxxxx
Xxxxx by or on behalf of Seller and its agents, counsel, employees and
representatives (the "Information"), is true, complete and correct in all
material respects, (ii) the Information does not contain any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances in which they were made, not
false or misleading, (iii) the financial forecasts and projections provided to
Xxxxxxxx Xxxxx by Seller were reasonably prepared and reflect the best currently
available estimates of the future financial results and condition of Seller, and
(iv) there have been no material changes in the assets, financial condition,
business or prospects of Seller since the date of the most recent financial
statements of Seller made available to Xxxxxxxx Xxxxx.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF Holdco
Holdco hereby represents and warrants to Seller as follows:
Section 6.01. Organization, Standing and Power. Holdco has been duly
formed and is validly existing as a limited liability company in good standing
under the laws of the state of Delaware and has the power and authority to own,
lease and otherwise hold and operate its assets and to carry on its business as
now being conducted.
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Section 6.02. Corporate Authorization. Holdco has the power and
authority to execute and deliver this Agreement and the Transaction Documents to
which Holdco is a party and to perform its obligations hereunder and thereunder.
The execution and delivery of this Agreement and the Transaction Documents and
the consummation of the Transactions have been duly authorized by all necessary
action on the part of Holdco. This Agreement has been duly executed and
delivered by Holdco and constitutes, and each Transaction Document to which
Holdco is a party will be duly executed and delivered by Holdco at or prior to
the Closing and when so executed and delivered will constitute, a legal, valid
and binding obligation of Holdco enforceable against it in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting or relating to enforcement
of creditor's rights and remedies generally and subject, as to enforceability,
to general principles of equity.
Section 6.03. Non-Contravention. The execution and delivery by Holdco
of this Agreement and the Transaction Documents to which Holdco is a party do
not, and the consummation by Holdco of the Transactions and the compliance by
Holdco with the provisions hereof and thereof will not, conflict with, or result
in any violation of or default (with or without notice or lapse of time, or
both) under, any provision of (i) the Delaware Limited Liability Company Act,
(ii) the certificate of formation of Holdco, (iii) any contract, agreement,
indenture, mortgage, lease, commitment or obligation to which Holdco is a party
or by which Holdco or its properties or assets are bound, or (iv) any Legal
Requirement applicable to Holdco, other than, in the case of clauses (iii) and
(iv) above, any such conflicts, violations or defaults that, individually or in
the aggregate, would not materially impair the ability of Holdco to perform its
obligations under this Agreement or any of the Transaction Documents to which
Holdco is a party.
Section 6.04. Governmental Filings; Consents. No consent, approval,
license, permit, order or authorization of, or registration, declaration or
filing with, any Governmental Authority or any third party is required to be
obtained or made by or with respect to Holdco, the Acquired Assets or the
Assumed Liabilities in connection with the execution and delivery by Holdco of
this Agreement or the other Transaction Documents to which Holdco is a party or
the consummation of the Transactions or compliance by Holdco with the provisions
hereof or thereof, except for (i) compliance with and filings under the HSR Act
and (ii) those the failure of which to be obtained or made, individually or in
the aggregate, would not materially impair the ability of Holdco to perform its
obligations under this Agreement or any of the Transaction Documents to which
Holdco is a party.
Section 6.05. Information Supplied; Schedule 13E-3. The Rule 13E-3
Transaction Statement on Schedule 13E-3 ("Schedule 13E-3") of Holdco to be filed
with the SEC in connection with this Agreement and any amendments and
supplements thereto, will, when filed, comply as to form in all material
respects with the requirements of the Exchange Act. None of the information
supplied or to be supplied by Holdco for inclusion or incorporation by reference
in the Proxy Statement or any amendment or supplement thereto will, at the date
the Proxy Statement or any amendment or supplement thereto is first mailed to
stockholders of Seller or at the time such stockholders vote on the approval of
this Agreement, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
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Section 6.06. Brokers. Except for Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx"), whose fees will be paid by Holdco, no investment
banker, broker, finder, other intermediary or other Person is entitled to any
fee or commission from Holdco or any of its subsidiaries upon consummation of
the Transactions.
Section 6.07. Assignment of Agreements. All of CCI's rights under the
Full Turnkey Agreement, Second NSA Agreement and Charter Warrants have been
validly assigned to, and all of CCI's obligations thereunder have been validly
assumed by, Holdco.
Section 6.08. Interested Stockholder. Holdco was not an interested
stockholder, as such term is defined in Section 203 of the DGCL, of Seller prior
to November 25, 1998, on which date it became an interested stockholder in
connection with the sale and issuance of 8,000,000 shares of Series B Preferred
Stock by Seller to Vulcan, which issuance Holdco understands was approved in
advance by Seller's Board in a manner sufficient to approve Holdco as an
interested stockholder pursuant to Section 203 of the DGCL.
ARTICLE VII
COVENANTS RELATED TO CONDUCT OF THE CABLE MODEM BUSINESS
Section 7.01. Conduct of Cable Modem Business in the Ordinary Course.
During the period from the date of this Agreement to the Closing Date, except as
consented to in writing by Holdco or as specifically contemplated by this
Agreement, Seller shall conduct the Cable Modem Business in the ordinary course
consistent with past practice and will, to the extent consistent therewith, use
commercially reasonable efforts to preserve the Acquired Assets and the Cable
Modem Business, including relationships with customers, suppliers and others
having significant business dealings with the Cable Modem Business. Without
limiting the generality of the foregoing, during the period from the date of
this Agreement to the Closing Date, except as consented to in writing by Holdco
(such consent not to be unreasonably withheld or delayed) or as specifically
contemplated by this Agreement or as disclosed on Schedule 7.01:
(a) Seller will:
(i) use commercially reasonable efforts to keep available the
services of the employees listed on the Offer Schedule and Review Schedule
(including by enforcing any restrictions on Seller's employees with respect to
soliciting or hiring employees listed on those schedules), and use commercially
reasonable efforts to replace all such employees whose employment terminates
before the Closing Date, in accordance with past hiring practices; provided,
that Holdco must consent to the hiring of any replacement employee with an
annual compensation of $50,000 or more;
(ii) maintain the tangible Acquired Assets in good repair, order
and condition (ordinary wear and tear excepted);
(iii) make the Modem Inventory available to Holdco for deployment,
pursuant to the Management Agreement;
(iv) maintain in full force and effect, policies of insurance with
respect to the Cable Modem Business consistent with past practices;
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(v) maintain its books, records and accounts related to the Cable
Modem Business in the ordinary course of business consistent with past
practices;
(vi) report and write off accounts receivable related to the Cable
Modem Business only in accordance with past practices;
(vii) withhold and pay when due all Taxes relating to Hired
Employees, the Acquired Assets and the Cable Modem Business;
(viii) comply in all material respects with all Legal Requirements
with respect to the Cable Modem Business;
(ix) provide Holdco with copies of any revenue agent's reports or
written assertions of deficiencies or other liabilities for Taxes received after
the date hereof up to and including the Closing Date within ten (10) days of
receipt thereof (but in no event later than the Closing Date); and
(x) provide Holdco with copies of material reports, audits,
studies, or analyses of any kind whatsoever in the possession of Seller, or
under its control, relating to environmental matters affecting the Acquired
Assets.
(b) Seller will not:
(i) sell, transfer or assign any portion of the Acquired Assets
other than sales in the ordinary course of business;
(ii) modify, terminate, renew (other than in the ordinary course or
as required by this Agreement), suspend or abrogate any Material Contract or
Real Estate Lease (other than those constituting Excluded Assets);
(iii) enter into any Material Contract with respect to the Cable
Modem Business;
(iv) make or approve any material change, modification or
alteration in or to any network operational or business systems, including CDB,
WebDT, Xxxx, Remedy (other than modifications in the normal development
process), and the Charter E-mail complex;
(v) modify its procedures for disconnection and discontinuation of
service to subscribers whose accounts are delinquent;
(vi) terminate the employment of any employees listed on the Offer
Schedule or the Review Schedule except for cause in the ordinary course;
(vii) increase the compensation or materially change any benefits
available to any employee listed on the Offer Schedule or the Review Schedule,
except as required pursuant to existing written agreements, or in the ordinary
course of business consistent with past practice;
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(viii) create or permit to exist any Lien on any of the Acquired
Assets, other than any Lien which will be released at or prior to the Closing or
Permitted Liens;
(ix) enter into any collective bargaining agreement covering any
employee listed on the Offer Schedule or the Review Schedule or enter into any
new bonus, stock option, profit sharing, compensation, pension, welfare,
retirement, employment or similar agreement, except where required by any Legal
Requirement;
(x) adopt, amend, modify, spin-off, transfer or assume any of the
assets or liabilities of, terminate or partially terminate any benefit plan;
(xi) decrease the rate charged for any level of services to
customers of Seller, except to the extent required by Holdco or any Legal
Requirement; or
(xii) engage in any marketing, subscriber installation, collection
or disconnection practices outside the ordinary course of business or
inconsistent with past practice, or change any billing arrangements (except as
contemplated by the Billing Letter Agreement).
(c) The provisions of Sections 7.01(a) and (b) shall not apply with
respect to any actions taken by CCI under the Management Agreement.
Section 7.02. Arapahoe Facility. Notwithstanding anything to the
contrary in Section 7.01 above, Seller shall be entitled to close its call
center on Arapahoe Road, Denver (the "Arapahoe Facility") and all operations
directly related thereto at any time on or after October 31, 2001, and may take
any action which Seller deems, in its sole discretion, to be reasonably
necessary or appropriate in connection with the closure of the Arapahoe Facility
without seeking the prior consent of Holdco. Notwithstanding the foregoing,
Seller shall retain certain of its personnel employed at the Arapahoe Facility
in accordance with the transitional procedures set forth on Schedule 7.02.
Section 7.03. Access to Information. To the extent permitted by any
applicable Legal Requirement, during the period from the date of this Agreement
to the Closing Date, Seller will furnish to Holdco and its authorized
representatives (including counsel, financial advisors and auditors) such
financial and operating data and other information relating to the Cable Modem
Business as such persons may reasonably request, and will instruct its officers,
employees, auditors, counsel and financial advisors to cooperate with Holdco in
its investigation of the Cable Modem Business and the Acquired Assets to be
purchased and Assumed Liabilities to be assumed hereunder; provided, however,
that nothing in this Agreement shall require Seller to provide Holdco with the
passwords to any of Seller's servers or software/enterprise applications,
including the e-mail server complex in Washington, D.C. prior to the Closing.
Notwithstanding the foregoing, Seller shall continue to provide to Holdco
temporary passwords as reasonably requested by Holdco to access equipment in
headends covered by the Full Turnkey Agreement. Holdco acknowledges that any
information provided to Holdco or any Holdco's representatives by Seller or any
of Seller's representatives pursuant to or in connection with this Agreement is
subject to the terms of the Confidentiality Agreement entered into between
Seller and CCI dated as of May 24, 2001 (the "Confidentiality Agreement").
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ARTICLE VIII
ADDITIONAL AGREEMENTS
Section 8.01. Seller Stockholder Meeting. Seller shall cause a meeting
of its stockholders to be duly called and held as soon as reasonably practicable
after the date of this Agreement (the "Seller Stockholder Meeting") for the
purpose of obtaining stockholder approval of this Agreement. Except as provided
in the next sentence, Seller's Board shall recommend to Seller's stockholders
that they vote in favor of the approval of this Agreement. Subject to Section
10.03, Seller's Board shall be permitted to (i) not recommend to Seller's
stockholders that they vote in favor of the approval of this Agreement or (ii)
withdraw or modify in a manner adverse to Holdco its recommendation to Seller's
stockholders that they vote in favor of the approval of this Agreement, only if
and to the extent that Seller's Board, after consultation with independent legal
counsel, by a majority vote determines in its good faith judgment that such
action is necessary for Seller's Board to comply with its fiduciary duties to
Seller's stockholders under any applicable Legal Requirement.
Section 8.02. Proxy Statement; Schedule 13E-3.
(a) In connection with the Seller Stockholder Meeting, Seller will (i)
promptly prepare and file with the SEC, use its reasonable best efforts to have
cleared by the SEC and thereafter mail to its stockholders as promptly as
practicable, the Proxy Statement and all other proxy materials for such meeting,
(ii) use its reasonable best efforts, subject to Section 8.01 hereof, to obtain
stockholder approval of this Agreement and (iii) otherwise comply with all Legal
Requirements applicable to such meeting.
(b) As soon as practicable after the date of this Agreement, Holdco
shall file with the SEC a Schedule 13E-3 with respect to this Agreement and the
Transactions. Holdco and Seller agree to use their respective reasonable best
efforts to cooperate and to provide each other with such information that either
of them may reasonably request in connection with the preparation of the
Schedule 13E-3. The information provided by each of Holdco and Seller for use in
the Schedule 13E-3 shall not, at the time the Schedule 13E-3 is filed with the
SEC, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. Each of Holdco and Seller agrees to promptly supplement, update
and correct any information provided by it for use in the Schedule 13E-3 if and
to the extent that it is or shall have become incomplete, false or misleading.
Section 8.03. Governmental Approvals.
(a) Each of Holdco and Seller shall as promptly as practicable, but in
no event later than ten (10) days following the execution and delivery of this
Agreement, file with the United States Federal Trade Commission and the United
States Department of Justice, the notification and report form under the HSR Act
required for the Transactions and any supplemental information requested in
connection therewith pursuant to the HSR Act. Each of Holdco and Seller shall as
promptly as practicable comply with any other Legal Requirements of any country
which are applicable to any of the Transactions and pursuant to which any
consent, approval, order or authorization of, or registration, declaration or
filing with, any Governmental
35
Authority or any other Person in connection with such Transactions is necessary.
Each of Holdco and Seller shall furnish to the other such necessary information
and reasonable assistance as the other may request in connection with its
preparation of any filing, registration or declaration which is necessary under
the HSR Act or any other such Legal Requirements. Holdco and Seller shall keep
each other apprised of the status of any communications with, and any inquiries
or requests for additional information from, any Governmental Authority, and
shall comply promptly with any such inquiry or request.
(b) Subject to the terms and conditions of this Agreement, each party
shall use commercially reasonable efforts to cause the Closing to occur as
promptly as practicable, including, without limitation, (i) in the case of
Holdco, assisting Seller and vigorously defending against any lawsuits, actions
or proceedings, judicial or administrative, challenging this Agreement or the
consummation of the Transactions on antitrust grounds, including seeking to have
vacated or reversed any preliminary injunction, temporary restraining order,
stay or other legal restraint or prohibition entered or imposed by any court or
other Governmental Authority that is not yet final and non-appealable and (ii)
in the case of Seller, assisting Holdco and cooperating fully with Holdco in
defending any lawsuits, actions or proceedings of the nature described in clause
(i) above, including, but not limited to, providing information within Seller's
possession and making Seller's personnel available to Holdco's counsel in a
timely manner as necessary, instructing Seller's counsel to vigorously defend
depositions of Seller's personnel and to work closely with Holdco's counsel to
develop common litigation strategies.
Section 8.04. Third Party Consents. Subject to Section 8.06, as and
from the date of this Agreement, Holdco and Seller will cooperate and use their
respective commercially reasonable efforts to obtain as promptly as practicable
all consents, approvals and waivers required by third Persons to transfer,
assign or novate any Acquired Asset (including the Assumed Real Estate Leases,
Assumed Capital Leases, Assumed Operating Leases, Assumed Contracts, CMB
Intellectual Property, Technology and Know-How), to Holdco in a manner that will
avoid any default, conflict, or termination of rights under the Assumed Real
Estate Leases, Assumed Capital Leases, Assumed Operating Leases, Assumed
Contracts, CMB Intellectual Property and Technology and Know-How or any
violation of any Legal Requirement. Seller shall also take such action
reasonably requested by Holdco in connection with Holdco's application to become
an "Approved Company" for purposes of succeeding to the rights of Seller under
the Service and Technology Agreement dated August 31, 2000 among Seller, the
Kentucky Economic Finance Authority and Xxxxxxxx Xxxxxx/Xxxxxx I, LLC, and the
assignment of such agreement to Holdco. Subject to Section 8.12 below, Seller
shall pay all reasonable out-of-pocket costs and expenses incurred by any third
Person in connection with obtaining any required consent, approval or waiver
from any third Person with respect to the transfer, assignment or novation of
Acquired Assets, if and to the extent that a third Person seeks reimbursement
for such costs. Notwithstanding anything to the contrary in this Agreement,
nothing in this Section 8.04 shall require Seller or Holdco to expend any
material sum, make a material financial commitment or grant or agree to any
material concession to any third Person to obtain any such consent, approval or
waiver.
36
Section 8.05. Notification of Certain Matters.
(a) Seller will promptly notify Holdco of any fact, event, circumstance
or action occurring from the date hereof through the Closing Date (i) which, if
known on the date of this Agreement, would have been required to be disclosed to
Holdco pursuant to this Agreement, (ii) the existence or occurrence of which
would cause any of Seller's representations or warranties under this Agreement
not to be true and correct as of the Closing Date, or (iii) which would
reasonably be expected to have a Material Adverse Effect; provided, however,
that Seller shall have no liability for breach of this Section 8.05 except to
the extent that Holdco has been actually prejudiced by such breach.
(b) Seller and Holdco shall promptly notify each other of (i) any
notice or other communication from any Person alleging that the consent of such
Person is or may be required in connection with the consummation of the
Transactions, and (ii) any lawsuit, action or proceeding pending, or, to
Seller's and Holdco's knowledge, threatened, against Seller or Holdco,
respectively, relating to the Cable Modem Business, the Acquired Assets or the
Transactions.
Section 8.06. Bulk Transfer Laws. The parties agree to waive the
requirements, if any, of any so-called "bulk transfer law" of any jurisdiction
in connection with the sale of the Acquired Assets to Holdco.
Section 8.07. Further Assurances. Without limiting any other obligation
of Holdco or Seller under this Agreement, each of Holdco and Seller will use
commercially reasonable efforts to facilitate and effect the implementation of
the transfer of the Acquired Assets to Holdco and the assumption of the Assumed
Liabilities by Holdco, including, in the case of Seller, causing any of its
Subsidiaries that own, license or lease any of the Acquired Assets to transfer
such assets to Holdco in accordance with the terms hereof. Without limiting the
generality of the foregoing, at and after the Closing, Holdco and Seller will,
at the request of the other party, promptly execute and deliver or cause to be
executed and delivered to the other party such assignments, deeds, bills of
sale, assumption agreements, consents and other instruments of transfer or
assumption as Holdco or its counsel or Seller or its counsel may reasonably
request as necessary or desirable for such purpose (it being understood that any
such assignment, deed, xxxx of sale, assumption agreement, consent or other
instrument of transfer or assumption shall not provide for any representations
or warranties or any obligations or liabilities that are not otherwise expressly
provided for in this Agreement).
Section 8.08. Acquisition Proposals.
(a) From the date hereof until the Closing Date and except as expressly
permitted by this Section 8.08, Seller will not, and will ensure that its
directors, officers, employees, investment bankers, financial consultants and
other agents do not, directly or indirectly, solicit, initiate, knowingly
encourage or facilitate the submission of any Acquisition Proposal or any
inquiry with respect thereto, engage in any discussions or negotiations with any
Person with respect thereto, or disclose any non-public information relating to
Seller or afford access to the properties, books or records of Seller to any
Person that has made any Acquisition Proposal; provided, however, that, subject
to Section 10.03 hereof, nothing contained in this
37
Section 8.08 shall prevent Seller from furnishing non-public information to, or
entering into discussions or negotiations with, any Person in connection with an
unsolicited bona fide Acquisition Proposal received from such Person after the
date hereof that Seller's Board determines in good faith could lead to a
Superior Proposal; provided, further, that nothing contained in this Agreement
shall prevent Seller's Board from complying with Rule 14e-2 or 14d-9 under the
Exchange Act with regard to an Acquisition Proposal. Upon the execution and
delivery of this Agreement, Seller will, and will ensure that the other Persons
listed in the first sentence of this Section 8.08(a), cease and cause to be
terminated all discussions and negotiations, if any, that have taken place prior
to the date hereof with any third parties with respect to any possible
Acquisition Proposal.
(b) In the event that Seller receives an unsolicited Acquisition
Proposal, Seller will promptly notify Holdco, describe the material terms and
identify the parties making such Acquisition Proposal and keep Holdco informed
as to the status of any such Acquisition Proposal.
(c) For purposes of this Agreement, "Acquisition Proposal" means any
offer or proposal for, or any indication of interest in, a merger or other
business combination involving Seller or any of its Subsidiaries which have any
right, title or interest in or to any of the Acquired Assets or the acquisition
of any equity interest in, or a substantial portion of the assets of, Seller or
any of its Subsidiaries which have any right, title or interest in or to any of
the Acquired Assets, other than the transactions contemplated by this Agreement
and other than an offer for a bona fide de minimis equity interest, or for an
amount of assets not material to Seller and its subsidiaries taken as a whole,
that Seller has no reason to believe would lead to a change of control of Seller
(or to the acquisition of a substantial portion of the assets of Seller and its
Subsidiaries). For purposes of this Agreement, "Superior Proposal" means any
bona fide Acquisition Proposal on terms that Seller's Board, following
consultation with outside counsel, determines in its good faith judgment (taking
into account all the terms and conditions of the Acquisition Proposal, including
any break-up fees, expense reimbursement provisions and conditions to
consummation) is more favorable to Seller's stockholders than this Agreement
taken as a whole.
Section 8.09. Employee Matters.
(a) Seller has previously delivered to Holdco a schedule of all
employees employed in the Cable Modem Business by work location as of July 31,
2001 (the "CMB Employees"), that shows the original hire date and the
then-current positions and rates of compensation, rate type (hourly or salary)
and whether the employee is on a leave of absence (the "CMB Employee Schedule").
Holdco will maintain the CMB Employee Schedule in strict confidence.
(b) Schedule 8.09(b)(i) sets forth a list of the CMB Employees that
Holdco will offer to employ following the Closing (the "Offer Schedule") on the
terms described in Section 8.09(c). Holdco shall make written offers of
employment to the CMB Employees listed on the Offer Schedule not more than
fourteen (14) days after the date hereof. Schedule 8.09(b)(ii) sets forth a list
of the CMB Employees that Holdco may elect, in its sole discretion, to hire
subject to the pre-hire evaluations permitted by this Section 8.09(b) (the
"Review
38
Schedule"). Subject to the provisions of this Section 8.09(b), Holdco shall make
written offers of employment to those CMB Employees listed on the Review
Schedule that it elects to hire not less than thirty (30) days after the date
hereof. Seller agrees, and will cause its appropriate Subsidiaries, to cooperate
in all reasonable respects with Holdco to allow Holdco to evaluate the CMB
Employees listed on the Review Schedule during such thirty (30) day period. In
this regard, Holdco will have the opportunity to make such appropriate pre-hire
investigation of the CMB Employees listed on the Review Schedule as Holdco deems
necessary, including the right to review personnel files and the right to
interview such employees during normal working hours, so long as such interviews
are conducted after notice to Seller and do not unreasonably interfere with
Seller's operations, and so long as such investigations and interviews do not
violate any Legal Requirement or any Contract. To the extent consent is required
by applicable law, Seller will use good faith efforts to obtain the consent of
each of the CMB Employees listed on the Review Schedule to allow Holdco to
review their personnel files in connection with the foregoing. Holdco will bear
the expense of any examination or test requested by Holdco of a prospective
employee but Seller will, upon reasonable notice, cooperate in the scheduling of
such examinations so long as the examinations do not unreasonably interfere with
Seller's operations. Holdco shall have sole and absolute discretion to determine
which, if any, CMB Employees listed on the Review Schedule shall be offered
employment by Holdco, based on the needs and criteria established by Holdco, in
its absolute discretion.
(c) With respect to (i) each CMB Employee listed on the Offer Schedule
and (ii) each CMB Employee listed on the Review Schedule to whom Holdco in its
sole discretion offers employment, Holdco will endeavor in good faith to offer a
position substantially comparable to that held by the employee immediately prior
to the Closing at a salary level or hourly wage equivalent to that received by
the employee immediately prior to the Closing (subject to Section 8.09(j) and
Section 8.22), and shall offer the employee benefits that are no less favorable
than the benefits provided to similarly situated employees of Holdco. In
addition, Holdco shall credit those CMB Employees that are listed on the Offer
Schedule or on the Review Schedule and that are hired by Holdco or its
Affiliates (the "Hired Employees") for such employee's past service with Seller
for purposes of (A) eligibility to participate in Holdco's employee welfare
benefit (including medical, dental, flexible spending accounts, accident, life
insurance plans and programs, disability plans, and other employee welfare
benefits) plans to the extent permitted by the terms of such plans, (B)
participation and vesting (but not benefit accrual) under Holdco's employee
401(k) plan and any other pension plan, (C) for any waiting periods under
Holdco's Welfare Plans or (D) for any post-Closing severance purposes. Seller
acknowledges that nothing in this Agreement will restrict Holdco from changing a
Hired Employee's job description, responsibilities, location, salary or benefits
following the Closing. If Hired Employees are included in any medical, dental or
health plan other than the plan or plans they participated in as of the Closing
Date, any such plans shall not include pre-existing condition exclusions, except
to the extent such exclusions were applicable under the similar plans of Seller
or its Subsidiaries as of the Closing Date, and shall provide credit for any
deductibles and co-payments applied or made with respect to each Hired Employee
in the calendar year of the change. Holdco will credit each Hired Employee with
the vacation time and sick time such Hired Employee had accrued with Seller as
of the Closing Date, provided, that Holdco shall only credit such Hired
Employees for such accrued vacation time and sick time to the extent that such
accrued vacation time or sick time does not exceed the maximum amount of
vacation time and sick time that similarly situated employees (including,
without limitation,
39
comparable seniority) of Holdco are allowed to accrue (the "Maximum Vacation
Accrual" or "Maximum Sick Time Accrual", as applicable). Holdco shall receive an
adjustment to the Purchase Price for the economic value of such credited
vacation time and sick time as contemplated in Section 3.03(a) and Schedule
3.03. The economic value of such vacation time and sick time is the amount equal
to the cash compensation that would be payable to each such Hired Employee at
his or her level of compensation on the Closing Date for a period equal to such
credited accrued vacation or sick time. If such accrued vacation time or sick
time exceeds the Maximum Vacation Accrual or Maximum Sick Time Accrual, Seller
shall pay such Hired Employee cash in lieu of such excess accrued vacation time
or sick time. Seller shall accrue up to $750,000 of bonuses for the Hired
Employees as of the Closing Date and Holdco shall pay at least an aggregate of
$750,000 in bonuses to the Hired Employees in respect of the 2001 calendar year
no later than April 30, 2002; provided, that Holdco shall receive a maximum
Purchase Price adjustment of $750,000 with respect to the payment of such
bonuses. Notwithstanding anything set forth in this Section 8.09, Holdco will
have no obligation to CMB Employees who are on Approved Leave of Absence until
they become employees of Holdco pursuant to this Section 8.09. For purposes of
this Agreement, employees on "Approved Leave of Absence" means employees absent
from work on the Closing Date and unable to perform their regular job duties by
reason of illness or injury under approved plans or policies of the employer
(other than employee's absence for less than five (5) days due to short term
illness or injury not requiring written approval by the employer) or otherwise
absent from work under approved or unpaid leave policies of the employer.
(d) As of the Closing Date, Holdco will have no obligation under this
Section 8.09 to Seller, its Affiliates or to any of Seller's employees, other
than with respect to Hired Employees who will hereafter be the responsibility of
Holdco. As of the Closing Date, Seller will, and will cause its Subsidiaries to,
terminate the employment of all Hired Employees. Seller will pay all severance
obligations and other costs associated with such termination (if any). Seller
shall grant a limited release to all Hired Employees from any contractual or
common law duties which said employees may owe to Seller, so as to permit such
employees to (i) compete with Seller by working for Holdco and (ii) disclose to
Holdco secret or proprietary information of Seller solely in relation to the
Cable Modem Business. Seller will timely satisfy any legal obligation with
respect to continuation of group health coverage required pursuant to Section
4980B of the Code or Section 601, et seq., of ERISA with respect to all CMB
Employees whose employment with Seller or any of Seller's ERISA Affiliates
terminates on or before the Closing Date.
(e) Except as otherwise expressly provided pursuant in this Agreement,
Holdco will not have or assume any obligation or liability under or in
connection with any of Seller's Benefit Plans. In relation to any CMB Employee
on an Approved Leave of Absence, responsibility for benefit coverage of such CMB
Employee, and liability for payment of benefits, will remain that of Seller or
the Subsidiaries of Seller until such employee becomes an employee of Holdco
after the Closing or is terminated by Seller or its Subsidiary. For purposes of
this Agreement, the following claims and liabilities will be deemed to be
incurred as follows: (i) medical, dental and/or prescription drug benefits upon
the rendering of the medical, dental, pharmacy or other services giving rise to
the obligation to pay such benefits except with respect to such benefits
provided in connection with a continuous period of hospitalization, which will
be deemed to be incurred at the time of admission to the hospital; (ii) life,
accidental death and
40
dismemberment and business travel accident insurance benefits and workers'
compensation benefits, upon the occurrence of the event giving rise to such
benefits; and (iii) salary continuation or other short-term disability benefits,
or long-term disability, upon commencement of the disability giving rise to such
benefit.
(f) Seller shall continue to pay the group health insurance premiums
that are necessary to continue, for a period of three (3) months after the
Closing Date, Seller's current group health plan for Seller's continuing
employees. Seller covenants that it will not terminate any group health plan in
connection with the Transactions.
(g) Any liability under the WARN Act with regard to any employee of
Seller terminated on or prior to the Closing Date, or not hired by Holdco on or
after the Closing Date, will, as a matter of contract between the parties, be
the responsibility of Seller. Holdco will cooperate with Seller and Seller's
Affiliates, if requested, in the giving of WARN Act notices on behalf of the
other party. Holdco shall not during the 60-day period beginning on the Closing
Date terminate the employment of full-time employees of the Cable Modem Business
whom it hires as contemplated in this Agreement so as to cause any "plant
closing" or "mass layoff" (as those terms are defined in the WARN Act) such that
Seller has any obligation under the WARN Act that Seller would not otherwise
have had absent such terminations. In the event of any breach by Holdco of the
foregoing covenant, Holdco shall indemnify Seller for any such obligations
arising under the WARN Act.
(h) Holdco and Seller hereby acknowledge and agree that, pursuant to
the authority of Revenue Ruling 2000-27, the Transactions will result in a
permissible distribution event under Section 401(k) of the Code from any of
Seller's Benefits Plans designed to satisfy the requirements of Section 401(k)
of the Code.
(i) If, during the period from the date of this Agreement to the
Closing Date, Seller has, or acquires, a duty to bargain with any labor
organization with respect to any of the CMB Employees, then Seller will (i) give
prompt written notice of such development to Holdco, including notice of the
date and place of any negotiating sessions as they are planned or contemplated
and permit Holdco to have a representative present at all negotiating sessions
with such labor organization and at all meetings preparatory thereto (including
making Holdco's representative a representative of Seller's delegation if
required by the labor organization), and (ii) not, without Holdco's written
consent, enter into any contract with such labor organization that purports to
bind Holdco, including any successor clause or other clause that would have this
purpose or effect. Seller acknowledges and agrees that Holdco has not agreed to
be bound, and will not be bound, without an explicit assumption of such
liability or responsibility by Holdco, by any provision of any collective
bargaining agreement or similar contract with any labor organization to which
Seller or any its Affiliates is or may become bound. Seller will take no action
or engage in any inaction, which might obligate or require Holdco to recognize
or bargain with any labor organization on behalf of CMB Employees.
(j) If, during the period from the date of this Agreement to the
Closing Date, Seller hires new employees in order to comply with its obligations
under Section 7.01(a)(i) (the "New Hires"), Holdco shall include each New Hire
on the Offer Schedule; provided, that such New Hires will be offered identical
salary levels or hourly wages to those paid to them by Seller.
41
Holdco will make a written offer of employment to each New Hire not more than 14
days after they are employed by Seller and Seller shall provide Holdco with any
information necessary for Holdco to comply with its obligations under this
Section 8.09(j).
(k) Seller shall not, either before the Closing or after the Closing
during the period while the Post-Employment Hiring Prohibition is scheduled to
remain in effect with respect to any of the employees listed on Schedule
8.09(k), amend or waive any of the Post-Employment Hiring Prohibitions or breach
the terms of any provisions of the employment agreements referred to in Section
5.17(b). At the direction (and, after the Closing, at the expense) of Holdco,
Seller shall enforce the Post-Employment Hiring Prohibition against any of those
employees who are alleged by Holdco to have violated the terms of the
Post-Employment Hiring Prohibitions with respect to the Hired Employees. Seller
shall turn over to Holdco any damages received as a result of any such
enforcement.
(l) Notwithstanding anything to the contrary in this Agreement, if the
offers of employment that Holdco makes to employees listed on the Offer Schedule
and, in Holdco's sole discretion, employees listed on the Review Schedule are
not (i) at an identical salary level or hourly wage to that received by such
employees immediately prior to the Closing, and (ii) at a position substantially
comparable to that held by such employees immediately prior to the Closing,
Seller shall not be liable for any breach of the covenant in Section 7.01(a)(i)
with respect to any failure by Seller to retain such employees until the
Closing.
(m) Nothing in this Section 8.09 or elsewhere in this Agreement will be
deemed to make any employee of Seller a third party beneficiary of this
Agreement.
Section 8.10. CMB Business Records; Transitional Arrangements.
(a) Seller shall deliver all CMB Business Records to Holdco at or
before the Closing. Holdco shall retain all material CMB Business Records for a
period of not less than three (3) years after the Closing Date. No CMB Business
Records will be destroyed during this 3 year period without at least thirty (30)
Business Days advance written notice to Seller, during which period Seller may,
at its sole expense, elect to take possession of the items to be destroyed.
After the Closing, Holdco shall grant Seller, its accountants, counsel and other
representatives access to the CMB Business Records as is reasonably necessary
with respect to Seller's review and verification of the Closing Statement (or
any corrected Closing Statement) as contemplated in Section 3.04, Seller's
continued operation and/or liquidation of all or part of the Excluded Assets or
for financial reporting and accounting matters, the preparation and filing of
any Tax returns, reports or forms, or for the defense of, or response required
under, or pursuant to, any lawsuit, action or proceeding (including any
proceeding involving Seller related to the Acquired Assets).
(b) Not more than sixteen (16) employees of Seller shall be entitled to
continue to use their respective offices on the 4th floor of Seller's call
center and network operating center in Louisville, Kentucky until March 31, 2002
for purposes of reviewing and verifying the Closing Statement and for purposes
of managing Seller's remaining business operations (other than the Cable Modem
Business). No rent or other amounts shall be payable to Holdco in relation to
the continued use of such offices by such employees. Seller shall provide
42
not more than twelve (12) representatives of Holdco or CCI access to and
reasonable workplace accommodations at Seller's locations (other than the CMB
Sites) as requested by Holdco, for no additional consideration, until thirty
(30) days after the Closing; provided, that Seller's obligation hereunder to
provide workplace accommodations shall terminate with respect to any location at
which Seller's occupancy rights have terminated at the time of such termination.
Seller shall provide Holdco with not less than thirty (30) days notice of
termination of any such occupancy rights.
Section 8.11. Publicity. During the period from the date of this
Agreement to the Closing Date, neither Seller, on the one hand, nor Holdco, on
the other hand, shall issue or cause the publication of any press release or
other public announcement with respect to the transactions contemplated by this
Agreement without the consent of the other party, except as such release or
announcement may be required by any Legal Requirement or the rules or
regulations of a national securities exchange in the United States, in which
case the party required to make the release or announcement shall allow the
other party reasonable time to comment on such release or announcement in
advance of its issuance.
Section 8.12. Fees and Expenses. Except as set forth in this Agreement
and irrespective of whether or not the Transactions are consummated, all
Expenses incurred in connection with this Agreement and the Transactions shall
be paid by the party incurring such Expenses, except (i) filings fees in
relation to the Schedule 13E-3 shall be paid by Holdco, (ii) Expenses incurred
in connection with the preparation, filing, printing and mailing of the Proxy
Statement shall be paid by Seller, (iii) filing fees in relation to filings made
under the HSR Act shall be shared equally by Seller and Holdco, and (iv)
Expenses incurred in connection with Holdco's application to become an "Approved
Company" for purposes of succeeding to the rights of Seller under the Service
and Technology Agreement dated August 31, 2000 among Seller, the Kentucky
Economic Finance Authority and Xxxxxxxx Xxxxxx/Xxxxxx I, LLC, shall be borne by
Holdco. For purposes of this Agreement, "Expenses" includes all out-of-pocket
expenses (including all fees and expenses of counsel, accountants, investment
bankers, experts and consultants to a party hereto and its Affiliates) incurred
by a party or on its behalf in connection with or related to the authorization,
preparation, negotiation, execution and performance of this Agreement and the
transactions contemplated hereby.
Section 8.13. Cancellation of Charter Warrants. Holdco and Seller
hereby agree that, effective as of the Closing, the Charter Warrants shall
terminate without further action on the part of Holdco or Seller, whereupon all
rights, obligations and liabilities thereunder shall be extinguished forthwith.
Notwithstanding Holdco's rights under the Charter Warrants, Holdco hereby
undertakes and agrees not to transfer or assign its right, title or interest in
and to the Charter Warrants during the period from the date of this Agreement to
the Closing Date.
Section 8.14. Letter of Credit. As and from the date of this Agreement,
Seller and Holdco will cooperate and use their respective commercially
reasonable efforts to obtain as promptly as practicable the consent of the third
party beneficiary (the "Beneficiary") of the letter of credit described on
Schedule 1.01(b), to the cancellation of such letter of credit. If required by
the Beneficiary as a condition to the cancellation of Seller's letter of credit,
Holdco will use commercially reasonable efforts to replace such letter of credit
with a letter of credit for the account of Holdco on terms no less favorable to
such Beneficiary. The cost of obtaining any
43
such replacement letter of credit shall be borne by Holdco. If the Beneficiary
does not consent to the cancellation or replacement of the letter of credit then
Holdco hereby agrees, conditional upon the Closing, to indemnify Seller in
respect of any Losses suffered or incurred by Seller as a result of such
Beneficiary presenting, or drawing down any amount under, such letter of credit.
Section 8.15. Taxes.
(a) Holdco shall pay any Transfer Taxes arising from or payable by
reason of the transfer of the Acquired Assets contemplated by this Agreement.
Tax returns required to be filed in respect of Transfer Taxes ("Transfer Tax
Returns") will be prepared and filed by the party that has the primary
responsibility under any applicable Legal Requirement for filing such Transfer
Tax Returns. If neither party has primary responsibility for filing a Transfer
Tax Return, then Holdco will be responsible for preparing and filing any such
Transfer Tax Return and, if required by any applicable Legal Requirement, Holdco
will join in the execution of any such Transfer Tax Returns and other
documentation. After the Closing Date, Seller and Holdco shall reasonably
cooperate with each other in connection with the preparation and filing of Tax
returns and in the conduct of any audit or other proceedings with respect to any
tax relating to the Acquired Assets. The party liable to pay relevant Transfer
Taxes pursuant to this Agreement shall have the opportunity to review and
approve, acting reasonably, any Transfer Tax Return related to such liability.
(b) Each party hereto will cooperate in assuring that all real property
taxes, personal property taxes and similar ad valorem obligations that are
levied with respect to the Acquired Assets or the Cable Modem Business for
assessment periods in which the Closing Date occurs and are otherwise not
accounted for in the adjustment to Purchase Price set forth in Section 3.03 of
this Agreement or excluded pursuant to Section 2.04(e) (collectively, the
"Apportioned Obligations") and any refund or rebate thereof, will be apportioned
between the Seller and Holdco as of the Closing Date based on the number of days
in any such period falling on or before the Closing Date, on one hand, and after
the Closing Date, on the other hand (it being understood that the Seller is
responsible for the portion of each such Apportioned Obligation attributable to
the number of days from the most recent Lien date up to and including the
Closing Date and Holdco is responsible for the portion of each such Apportioned
Obligation attributable to the period after the Closing Date. An adjustment will
be made to the Purchase Price to reflect any payment of Apportioned Obligations
that have been made by Seller on or prior to the Closing Date that are
apportioned to Holdco hereunder. The parties hereto will cooperate, including
during times of audit by taxing governmental authorities, to avoid payment of
duplicate Taxes or other ad valorem obligations of any kind or description which
related to the Acquired Assets or the Cable Modem Business, and each party will
furnish, at the request of the other, proof of payment of any such Taxes or ad
valorem obligations or other documentation that is a prerequisite to avoiding
payment of a duplicate Tax or other ad valorem obligations.
(c) Seller will cooperate with Holdco's reasonable requests to take
such actions and execute such documents or instruments necessary or appropriate,
as determined by Holdco, at Seller's expense, to reduce Holdco's Transfer Tax
liability in connection with the Transactions.
44
(d) Holdco shall have the right to control the defense and conduct of
any audit or other examination by any taxing authority with respect to transfer,
sale or use Taxes that might be applicable to the transfer of the Acquired
Assets pursuant to this Agreement and for which Holdco is liable hereunder.
Section 8.16. Use of Seller's Name. Seller will retain all rights with
respect to the names "HSA" and "High Speed Access" or any and all derivations
thereof after the Closing. Holdco will remove or delete such names or any and
all derivations thereof from the Cable Modem Business and Acquired Assets as
soon as reasonably practicable, but in any event by the 120th day following the
Closing. Seller will take no action to enforce its Intellectual Property rights
in such names against Holdco or its Affiliates during such 120-day period with
respect to the Acquired Assets and Cable Modem Business. Nothing in this Section
8.16 will require Holdco to remove or discontinue using any such name or xxxx
that is affixed to converters or other items in customer homes or properties on
the Closing Date, or as are used in a similar fashion which makes such removal
or discontinuation impracticable.
Section 8.17. Non-solicitation. During the period from the Closing Date
until the first anniversary of the Closing Date, Seller shall not, and shall
cause its Subsidiaries not to, without the prior written consent of Holdco,
solicit for employment any of the Hired Employees or any employees of Holdco
with whom Seller has had any material business contact within one year of the
date hereof; provided, however, that the foregoing prohibition shall not prevent
Seller from hiring any such Hired Employee or employee of Holdco by means of a
general advertisement.
Section 8.18. Confidentiality. Except as permitted under the terms of
the License Agreement, as and from the Closing Date, Seller agrees (i) to
preserve and protect the confidentiality of any trade secrets or other
confidential information relating to the CMB Intellectual Property, Technology
and Know-How and CMB Business Records sold and delivered to Holdco hereunder as
part of the Acquired Assets (the "Confidential Information"), and (ii) not to
disclose or disseminate the Confidential Information to any third party except
as required by any Legal Requirement. For the avoidance of doubt, the foregoing
obligations shall not apply to (A) information which is generally known to the
industry or the general public other than as a result of Seller's breach of this
Agreement, or (B) information furnished to Seller by a third party on a
non-confidential basis after the date hereof who is not known by Seller after
due inquiry to be otherwise bound by a confidentiality agreement. Any material
breach of the Confidentiality Agreement, as amended, will be deemed a material
breach of this Agreement.
Section 8.19. Limitations on Seller's Representations and Warranties.
Except for the representations and warranties expressly contained in this
Agreement, Seller makes no other express or implied representation or warranty,
including, without limitation, representations or warranties as to the condition
of the Acquired Assets, their fitness for any particular purpose, their
contents, the income derived or potentially to be derived from the Acquired
Assets or the Cable Modem Business, or the expenses incurred or potentially to
be incurred in connection with the Acquired Assets or the Cable Modem Business.
Seller is not, and will not be, liable or bound in any manner by express or
implied warranties, guarantees, statements, promises, representations or
information pertaining to the Acquired Assets or the Cable Modem Business, made
or furnished by any broker, agent, employee, servant or other
45
person representing or purporting to represent Seller, unless and to the extent
the same is expressly set forth in this Agreement.
Section 8.20. Launch Fees. Notwithstanding the terms of the Second NSA
Agreement, Holdco hereby agrees that all unpaid Launch Fees as of the date
hereof, together with any Launch Fees that accrue during the period from the
date of this Agreement to the Closing Date, shall not be payable by Seller to
Holdco (except to the extent included in the Intercompany Payment set forth on
Schedule 4.02(a) and payable at Closing) unless this Agreement is terminated or
abandoned in accordance with its terms, at which time all such Launch Fees shall
be due and payable by Seller to Holdco in accordance with the terms of the
Second NSA Agreement.
Section 8.21. Termination of Charter Contracts. Holdco and Seller agree
that, effective as of the Closing, the Second NSA Agreement shall terminate
without further action on the part of Holdco or Seller, whereupon all rights,
obligations and liabilities thereunder shall be extinguished forthwith
(including any liability for breaches existing as of the Closing Date). Holdco
further agrees to use its best efforts to cause the Full Turnkey Agreement to be
terminated effective as of the Closing, without liability on the part of Seller,
Holdco or any other party thereto (including any liability for breaches existing
as of the Closing Date). Notwithstanding the foregoing, Purchase Price
adjustments with respect to payment obligations under the Second NSA Agreement
and the Full Turnkey Agreement shall be made in accordance with Sections 3.03
and 3.04. From the date of this Agreement to the Closing Date or termination
hereof, neither Holdco nor Seller will declare, claim or issue a notice of
default under the Full Turnkey Agreement or the Second NSA Agreement; provided,
that the foregoing shall not be deemed or construed as a waiver by either party
with respect to any claims or defaults under such agreements and any amendments
thereto.
Section 8.22. CSR Classes. Seller shall recruit, hire and begin
training classes at such time and for the number of full time equivalent new
customer service representative employees set forth on Schedule 8.22; provided,
that Holdco shall provide Seller with a written request to begin any class
scheduled to begin more than thirty (30) days after the date hereof and Seller
shall not be obligated to begin any such class until thirty (30) days after
delivery of such notice, notwithstanding the scheduled date of such class on
Schedule 8.22. Holdco shall include all of Seller's new employee representatives
attending such classes on the Offer Schedule and, notwithstanding anything to
the contrary in Section 8.09, shall offer employment to such persons at
identical salary levels or hourly wages to those paid to them by Seller.
Training classes shall be conducted in a manner consistent with past practice.
For purposes of determining whether Seller has complied with its obligations
under this Section 8.22, the number of full time equivalent customer service
representative employees shall include new employees of Seller that are offered
and accept employment under terms consistent with past practices and who pass
Seller's standard pre-hire tests (regardless of whether such employees
voluntarily terminate their employment before completion of such class or
classes). Subject to the foregoing, Seller shall pay Holdco $10,000 for each
full Business Day of delay (beginning on the sixth Business Day of such delay)
in the commencement of any class with the minimum number of participants
required pursuant to the terms of this Section 8.22 and each full Business Day
of any period during which classes have been early terminated (the "CSR
Charges"). The CSR Charges shall
46
be payable at, and only at, the Closing as an adjustment of the Purchase Price
as contemplated in Section 3.03(a) and the Closing Statement.
Section 8.23. Customer Care Matters. Effective as of the Closing Date,
Holdco shall assume responsibility for handling, managing and resolving all open
Customer Care Matters.
ARTICLE IX
CONDITIONS
Section 9.01. Conditions to Each Party's Obligation. The respective
obligations of Holdco, on the one hand, and Seller, on the other hand, to effect
the purchase and sale of the Acquired Assets and the assumption of the Assumed
Liabilities shall be subject to the satisfaction prior to the Closing of the
following conditions:
(a) Seller Stockholder Approval. This Agreement and the transactions
contemplated hereby shall have been approved by the stockholders of Seller by
(i) the Seller Requisite Vote and (ii) a majority of the votes actually cast
affirmatively or negatively by holders of outstanding shares of HSA Common Stock
other than Excluded Stockholders.
(b) HSR Waiting Period. Any waiting period applicable to the
Transactions under the HSR Act shall have terminated or expired.
(c) No Injunctions or Restraints. No temporary restraining order,
preliminary or permanent injunction or other legal restraint or prohibition
preventing the consummation of the transactions contemplated by this Agreement
shall be in effect.
Section 9.02. Conditions to Obligation of Holdco. The obligation of
Holdco to purchase the Acquired Assets is subject to the satisfaction at and as
of the Closing of each of the following conditions:
(a) Representations and Warranties. The representations and warranties
of Seller set forth in this Agreement shall be true and correct in all respects
without regard to any "materiality", "material" or "Material Adverse Effect"
qualifiers therein as of the date hereof and on and as of the Closing Date with
the same force and effect as if made on and as of the Closing Date, except (i)
to the extent that such representations and warranties describe a condition on a
specified time or date or are affected by the conclusion of the transactions
permitted or contemplated hereby, or (ii) where the failure of such
representations and warranties to be true and correct, individually or in the
aggregate, does not have, has not had and would not reasonably be expected to
have, a Material Adverse Effect. Holdco shall have received a certificate signed
by an authorized officer of Seller (but without personal liability thereto) to
such effect.
(b) Performance of Obligations of Seller. Subject to Section 8.09(k),
Seller shall have performed or complied in all material respects with all
obligations, conditions and covenants required to be performed or complied with
by it under this Agreement and the other Transaction Documents to which it is a
party at or prior to the Closing. Holdco shall have received a certificate
signed by an authorized officer of Seller (but without personal liability
47
thereto) to such effect and identifying (1) each executive officer or director
of Seller who is an Excluded Stockholder, (2) the number of shares of HSA Common
Stock with respect to which each such officer and director has Voting Control
(as such term is defined in the Voting Agreement) and (3) the number of such
shares that were voted in favor of the transactions contemplated by this
Agreement.
(c) Certificate of Incumbency and Resolutions. Holdco shall have
received a certificate of the President and Secretary of Seller (i) as to the
incumbency and signatures of the officers of Seller and (ii) as to the adoption
and continued effectiveness of resolutions of Seller authorizing the
transactions contemplated hereby.
(d) Required Consents. Each of the consents set forth on Schedule
9.02(d) shall have been obtained and no such consent shall have been revoked.
(e) No Material Adverse Effect. No damage, destruction or loss of any
of the Acquired Assets has occurred or come to exist since the date of this
Agreement, after giving effect to any insurance, which has had or would
reasonably be expected to have a Material Adverse Effect, nor, subject to
Section 8.09(k), has any event, occurrence, fact, condition, change or
development occurred or come to exist since the date of this Agreement, which
has had or would reasonably be expected to have a Material Adverse Effect.
(f) Legal Opinion. Holdco shall have received an opinion from Xxxx
Xxxxxxx & Xxxxxx LLP, counsel to Seller, substantially in the form attached as
Exhibit E. In addition, the opinion from Seller's General Counsel previously
delivered to Holdco shall not have been modified or withdrawn since the date
thereof or in the alternative, Holdco shall have received an alternative opinion
from a source reasonably acceptable to Holdco.
(g) Opinions of Financial Advisors. Copies of the Xxxxxx Opinion and
Xxxxxxxx Xxxxx Opinion, together with a letter from Xxxxxxxx Xxxxx in form and
substance reasonably acceptable to Holdco to the effect that Holdco may rely on
the Xxxxxxxx Xxxxx Opinion, shall have been previously provided to Holdco and
neither of such opinions nor the letter from Xxxxxxxx Xxxxx regarding reliance
by Holdco on its opinion shall have been modified or withdrawn at or before the
Closing.
Section 9.03. Conditions to Obligation of Seller. The obligation of
Seller to sell, assign, transfer, convey and deliver the Acquired Assets is
subject to the satisfaction at and as of the Closing of each of the following
conditions:
(a) Representations and Warranties. The representations and warranties
of Holdco set forth in this Agreement that are qualified as to materiality shall
be true and correct and the representations and warranties of Holdco set forth
in this Agreement that are not so qualified shall be true and correct in all
material respects, in each case as of the date of this Agreement and as of the
Closing Date, with the same force and effect as made on and as of the Closing
Date. Seller shall have received a certificate signed by an authorized officer
of Holdco (but without personal liability thereto) to such effect.
(b) Performance of Obligations of Holdco. Holdco shall have performed
or complied in all material respects with all obligations, conditions and
covenants required to be
48
performed or complied with by it under this Agreement and the other Transaction
Documents to which it is a party at or prior to the Closing. Seller shall have
received a certificate signed by an authorized officer of Holdco (but without
personal liability thereto) to such effect.
(c) Certificate of Incumbency and Resolutions. Seller shall have
received a certificate of the President and Secretary of Holdco (i) as to the
incumbency and signatures of the officers of Holdco and (ii) as to the adoption
and continued effectiveness of resolutions of Holdco authorizing the
transactions contemplated hereby.
(d) Legal Opinion. Seller shall have received an opinion from Paul,
Hastings, Xxxxxxxx & Xxxxxx LLP, counsel to Holdco substantially in the form
attached as Exhibit F.
ARTICLE X
TERMINATION, AMENDMENT AND WAIVER
Section 10.01. Termination. Notwithstanding anything to the contrary in
this Agreement, this Agreement may be terminated and the transactions
contemplated hereby abandoned at any time prior to the Closing Date, (whether
before or after the approval of this Agreement by the Seller Requisite Vote):
(a) by mutual written consent of Seller and Holdco;
(b) by Holdco or Seller if any of the conditions set forth in Section
9.01 have become incapable of fulfillment; provided, that a party seeking to
terminate this Agreement as a result of a failure of the condition set forth in
Section 9.01(c) shall have complied in all material respects with its obligation
under Section 8.03(b);
(c) by Seller if any of the conditions set forth in Section 9.03 shall
have become incapable of fulfillment, and shall not have been waived by Seller;
(d) by Holdco if any of the conditions set forth in Section 9.02 shall
have become incapable of fulfillment, and shall not have been waived by Holdco;
or
(e) by Seller or Holdco if (i) the Closing shall not have occurred on
or prior to March 31, 2002 or (ii) Seller shall have entered into a definitive
agreement providing for a Superior Proposal with a Person other than Holdco or
its subsidiaries.
Section 10.02. Notice of Termination. A party desiring to terminate
this Agreement pursuant to this Article X shall give written notice of such
termination to the other party in accordance with Section 12.01, specifying the
provision hereof pursuant to which such termination is effected. Notwithstanding
anything to the contrary in this Agreement, the right to terminate this
Agreement pursuant to Sections 10.01(c) through (e) shall not be available to
any party whose failure to fulfill its obligations or to comply with its
covenants under this Agreement in all material respects has been the cause of,
or resulted in, the failure to satisfy a condition set forth in Sections 9.02 or
9.03 as the case may be.
49
Section 10.03. Effect of Termination and Abandonment.
(a) If this Agreement is terminated or abandoned pursuant to this
Article X, this Agreement shall become void and of no further force or effect
with no liability on the part of any party hereto (or on the part of any of its
directors, officers, employees, agents, legal or financial advisors or other
representatives), except that (i) the agreements contained in this Article X,
Article XI, Article XII and in the Confidentiality Agreement, shall survive the
termination hereof and (ii) no such termination shall relieve any party of any
liability or damages resulting from any willful material breach by that party of
this Agreement.
(b) If this Agreement is terminated pursuant to (i) Section 10.01(d),
(ii) Section 10.01(e)(i) (but only if termination pursuant to Section
10.01(e)(i) is a result of the negligent or willful failure of Seller to perform
any obligations required to be performed by it hereunder on or prior to the date
of termination) or (iii) Section 10.01(e)(ii), then Seller shall pay all of
Holdco's reasonable out-of-pocket expenses incurred in connection with this
Agreement, including, without limitation, all reasonable legal fees and expenses
and all fees and expenses of Xxxxxxx Xxxxx incurred by Holdco, together with all
fees and expenses chargeable to Seller pursuant to Section 8 of the Management
Agreement, by wire transfer or cashier's check within five (5) Business Days
after termination hereof.
(c) If this Agreement is terminated pursuant to (i) Section 10.01(c),
or (ii) Section 10.01(e)(i) (but only if termination pursuant to Section
10.01(e)(i) is a result of the negligent or willful failure of Holdco to perform
any obligations required to be performed by it hereunder on or prior to the date
of termination), then Holdco shall pay all of Seller's reasonable out-of-pocket
expenses incurred in connection with this Agreement, including all reasonable
legal fees and expenses and all fees and expenses of Xxxxxx and Xxxxxxxx Xxxxx
incurred by Seller, together with the Incremental Costs (as such term is defined
in the Management Agreement) chargeable to Holdco upon termination of this
Agreement by wire transfer or cashiers check within five (5) Business Days after
termination hereof.
Section 10.04. Amendments. This Agreement may be amended by action
taken by Seller and Holdco at any time before or after approval of this
Agreement by the Seller Requisite Vote but, after any such approval, no
amendment shall be made which requires the approval of Seller's stockholders
under applicable law without such approval. This Agreement may not be amended
except by an instrument in writing signed on behalf of the parties hereto.
Section 10.05. Extension; Waiver. At any time prior to the Closing
Date, each party hereto may (i) extend the time for the performance of any of
the obligations or other acts of the other party, (ii) waive any inaccuracies in
the representations and warranties of the other party contained herein or in any
document, certificate or writing delivered pursuant hereto or (iii) waive
compliance by the other party with any of the agreements or conditions contained
herein (in whole or in part). Any agreement on the part of either party hereto
to any such extension or waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party. The failure of either
party hereto to assert any of its rights hereunder shall not constitute a waiver
of such rights.
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ARTICLE XI
INDEMNIFICATION
Section 11.01. Indemnification by Seller. Subject to the provisions of
this Article XI, Seller shall indemnify, defend and hold harmless Holdco, its
Affiliates, and their respective officers, directors, employees, stockholders,
agents and representatives (collectively, "Holdco Indemnitees") from and against
all claims (including, without limitation, claims by third parties) and
compensatory damages (including, without limitation, settlement costs and any
expenses, including reasonable out-of-pocket legal and accounting expenses
incurred in connection with investigating or defending any actions or threatened
actions) (collectively, "Damages") arising out of or in connection with (a) the
breach of any representation or warranty made by Seller in this Agreement or any
other Transaction Document (without regard to any materiality or similar
qualifications contained therein), (b) any breach of any covenant, agreement or
obligation of Seller contained in this Agreement or any other Transaction
Document, (c) the Excluded Liabilities, or (d) the operation of the Cable Modem
Business prior to Closing. Notwithstanding the foregoing, Seller shall have no
obligation to indemnify, defend and hold harmless any Holdco Indemnitee for any
damages (including with respect to Taxes) which a Holdco Indemnitee incurred in
its capacity as a stockholder of Seller. The foregoing obligation of Seller to
indemnify the Holdco Indemnitees shall be subject to and limited by the
following qualifications:
(i) Each of the covenants of Seller contained in Sections 7.01,
7.02, 8.01, 8.02, 8.03, 8.05, 8.06, 8.08, 8.09(d), 8.11 and 8.22 and
representations and warranties made by Seller in this Agreement or in any of the
other Transaction Documents shall survive for a period of eighteen (18) months
after the Closing Date (unless a claim shall have been commenced prior to such
time in which case the applicable covenants, representations and warranties
shall survive with respect to such claim until such claim has been resolved, and
thereafter all such covenants, representations and warranties shall be
extinguished), except that (1) the representations and warranties contained in
Section 5.16 will survive until 90 days after the expiration of the applicable
statute of limitations, (2) the representations and warranties contained in
Sections 5.14 and 5.18 will survive for a period of twenty-four (24) months
after the Closing Date and (3) the representations and warranties contained in
Sections 5.13(a) and 5.15 (but only, in Section 5.15, with respect to title to
the CMB Intellectual Property and Technology and Know-How) will survive in
perpetuity. The extended survival periods referenced in the preceding sentence
shall hereinafter be referred to as the "extended survival periods". The
covenants (other than those described in the first sentence of this clause (i))
and agreements made by the Seller in this Agreement or in any of the other
Transaction Documents shall survive the Closing and will continue in full force
and effect without limitation.
(ii) Subject to Section 11.01(iii) below, Seller shall have no
liability to the Holdco Indemnitee on or account of any Damages provided in
Section 11.01(a) or (b) (to the extent the matters in Section 11.01(b) relate to
covenants described in the first sentence of Section 11.01(i)) unless and until
such damages in the aggregate exceed Two Hundred Fifty Thousand Dollars
($250,000) (the "Threshold Amount"), in which case the Holdco Indemnitees shall
be entitled to Damages from the first dollar of such damages. Subject to Section
11.01(iii), the total liability of Seller for its indemnity obligation under
Sections 11.01(a) and 11.01(b) insofar as it includes the covenants described in
the first sentence of Section 11.01(i), shall be
51
limited in all respects to, and shall be payable solely from, and to the extent
of, the Indemnification Holdback and upon the occurrence of an event to which
Seller's indemnity obligations under such sections applies, the Holdco
Indemnitees' sole and exclusive remedy shall be recourse to the Indemnification
Holdback.
(iii) With respect to any indemnification sought for Damages
arising out of (1) a breach of any representation or warranty subject to an
extended survival period pursuant to Section 11.01(i); (2) any Excluded
Liability; (3) the operation of the Cable Modem Business prior to the Closing
Date, (4) a breach of any covenants, agreements or obligations of Seller other
than those described in the first sentence of Section 11.01(i); or (5) actual
common law fraud (collectively, the "Excluded Damages"), such indemnification
(x) shall not be subject to the Threshold Amount set forth in Section 11.01(ii)
above and (y) shall neither be paid from, nor subject to the limits of, the
Indemnification Holdback; provided, however that the Holdco Indemnitees may
elect in its discretion to proceed against the Indemnification Holdback for
indemnification of all or any portion of the Excluded Damages.
Section 11.02. Indemnification by Holdco. Subject to the provisions of
this Article XI, Holdco shall indemnify, defend and hold harmless Seller, its
Affiliates and their respective officers, directors, employees, stockholders,
agents and representatives (collectively, "Seller Indemnitees") from and against
any Damages arising out of or in connection with (a) the breach of any
representation or warranty made by Holdco in this Agreement or any other
Transaction Document (without regard to any materiality or similar
qualifications contained therein), (b) any breach of any covenant, agreement or
obligation of Holdco contained in this Agreement or any other Transaction
Document, (c) the Assumed Liabilities or (d) the operation of the Cable Modem
Business from and after the Closing. Each of the covenants of Holdco contained
in Sections 8.02, 8.03, 8.05, 8.06 and 8.11 and representations and warranties
made by Holdco in this Agreement or in any of the other Transaction Documents
shall survive for a period of eighteen (18) months after the Closing Date
(unless a claim shall have been commenced prior to such time in which case the
applicable covenants, representations and warranties shall survive with respect
to such claim until such claim has been resolved, and thereafter all such
covenants, representations and warranties shall be extinguished). The covenants
(other than those described in the preceding sentence) and agreements made by
Holdco in this Agreement or in any of the other Transaction Documents shall
survive the Closing and will continue in full force and effect without
limitation. Holdco shall have no liability to Seller on or account of any
Damages provided in Sections 11.02(a) or (b) (to the extent the matters in
Section 11.02(b) relate to covenants described in the second sentence of this
Section 11.02) unless and until such damages in the aggregate exceed the
Threshold Amount, in which case Seller shall be entitled to Damages from the
first dollar of such damages. The total liability of Holdco for its indemnity
obligation under Sections 11.02(a) and 11.02(b) insofar as it includes the
covenants contained described in the second sentence of this Section 11.02,
shall be limited in all respects to an amount equal to the original amount of
the Indemnification Holdback. Notwithstanding the foregoing, Holdco's
indemnification obligations shall not be subject to the Threshold Amount or the
limits on total liability set forth above with respect to any indemnification
sought for Damages arising out of (1) any Assumed Liability; (2) a breach of any
covenants, agreements or obligations of Holdco other than those described in the
second sentence of this Section 11.02, (3) actual common law fraud, (4) any
Liability for Taxes arising
52
under Section 8.15(a) or Taxes apportioned to Holdco pursuant to Section
8.15(b), or (5) the operation of the Cable Modem Business from and after the
Closing Date.
Section 11.03. Exclusive Remedy; No Consequential Damages. Seller and
Holdco acknowledge and agree that, from and after the Closing, their sole and
exclusive remedy with respect to any and all claims relating to the subject
matter of this Agreement shall be pursuant to the indemnification provisions set
forth in this Article XI, except in the case of actual common law fraud.
Notwithstanding anything to the contrary in this Agreement, no indemnification
shall be provided for under this Article XI in respect of any indirect or
consequential damages. The maximum amount of any indemnification payable
hereunder by any indemnifying party shall be limited to an amount equal to the
Cash Amount.
Section 11.04. Characterization of Indemnification and Other Payments.
All indemnity and other payments made under this Agreement shall be treated for
all Tax purposes as adjustments to the Purchase Price.
Section 11.05. Damages Net of Insurance; Tax Benefits. The amount of
any Damages for which indemnification is payable under this Article XI, shall be
(i) net of any amounts recovered or recoverable by the Indemnitee (as defined
below) under insurance policies with respect to such Damages, (ii) net of any
amounts recovered by the Indemnitee from any third Person (by contribution,
indemnification or otherwise) with respect to such Damages, and (iii) adjusted
to take account of any net Tax effect realized by the Indemnitee arising from
the incurrence or payment of any such Damages and the entitlement to or the
receipt of any indemnification payment.
Section 11.06. Procedures Relating to Third Party Claims.
(a) Notice of Third Party Claims. A Person entitled to any
indemnification provided for under this Agreement in respect of, arising out of,
or involving a claim made by any third party (a "Third Party Claim") against
such Person (the "Indemnitee"), shall notify the Person from whom
indemnification is sought (the "Indemnitor") in writing, and in reasonable
detail, of the Third Party Claim promptly after receipt by such Indemnitee of
written notice of the Third Party Claim. The failure to give such notification
shall not affect the indemnification provided hereunder except to the extent the
Indemnitor shall have been materially prejudiced as a result of such failure.
(b) Assumption of Defense of Third Party Claims by Indemnitor. If any
indemnification obligation hereunder shall arise from a Third Party Claim, the
Indemnitor shall have the right and Indemnitee shall permit the Indemnitor to
participate in the defense thereof and, if it so chooses, to assume the defense
of any such claim or any litigation resulting from such claim unless the
Indemnitee provides a written release to Indemnitor of its indemnification
obligation. If the Indemnitor assumes the defense of such claim or litigation,
the Indemnitor shall actively pursue the defense thereof in good faith. The
Indemnitor shall not, in the defense of such claim or litigation, unless the
Indemnitee expressly consents in writing (which consent will not be unreasonably
withheld), consent to entry of any judgment or enter into any settlement unless
such judgment or settlement provides only for monetary damages to be paid by the
Indemnitor and includes as an unconditional term thereof the giving by the
claimant or the plain-
53
tiff to the Indemnitee of a release from all liability in respect of such claim
or litigation. In cases where the Indemnitor has, by written instrument
delivered to the Indemnitee, assumed the defense or a settlement with respect to
a claim for which indemnity is being sought, the Indemnitor will not be liable
to the Indemnitee for any legal fees subsequently incurred by the Indemnitee in
connection with the defense thereof and the Indemnitor shall be entitled to
assume the defense or settlement thereof with counsel of its own choosing, which
counsel shall be reasonably satisfactory to the Indemnitee, provided that the
Indemnitee (and its counsel) shall be entitled to continue to participate at its
own cost in any such action or proceeding or in any negotiations or proceedings
to settle or otherwise eliminate any claim for which indemnification is being
sought, it being understood that the Indemnitor shall control such defense. If
the Indemnitor chooses to defend or prosecute a Third Party Claim, all the
parties hereto shall reasonably cooperate in the defense or prosecution thereof.
Such cooperation shall include the retention and (upon the Indemnitor's request)
the provision to the Indemnitor of records and information which are reasonably
relevant to such Third Party Claim, and making employees available on a mutually
convenient basis to provide additional information and explanation of any
material provided hereunder.
(c) Assumption of Defense of Third Party Claims by Indemnitee.
Notwithstanding the foregoing, if (i) the Indemnitor does not promptly assume
the defense of any Third Party Claim as provided in this Section 11.06(b) above
(other than during any period in which the Indemnitee shall have failed to give
notice of the Third Party Claim as provided above) or (ii) the Indemnitee
reasonably concludes that there may be legal defenses available to it that are
different from or in addition to those available to the Indemnitor, or that
another conflict of interest exists or is likely to occur in the defense of such
Third Party Claim, then in any of such cases, the Indemnitee may assume primary
responsibility for the defense or settlement of the Third Party Claim, and may
select legal counsel reasonably acceptable to the Indemnitor to conduct the
defense of such claims. If the Indemnitee assumes and undertakes a defense or
settlement of a Third Party Claim in accordance with the immediately preceding
sentence, the Indemnitor shall be liable to the Indemnitee for any reasonable
attorneys' fees and expenses incurred by the Indemnitee in connection with such
matter, after receiving notice from the Indemnitee to the effect that it intends
to take advantage of the provisions set forth in the immediately preceding
sentence; provided, however, that the Indemnitor shall continue to have the
right to participate in the defense of any such Third Party Claim and, if it so
chooses, to employ separate counsel in connection therewith, but the fees,
costs, and expenses related to such participation shall be at the expense of and
paid by the Indemnitor. In the event the Indemnitee assumes primary
responsibility for the defense of the Third Party Claim as provided in the first
sentence of this Section 11.06(c), the Indemnitor shall continue to pay the
legal fees and expenses of counsel for the Indemnitee and the Indemnitor shall
not have the right to direct the defense of such Third Party Claim on behalf of
the Indemnitee. The Indemnitee shall have the right, with the consent of the
Indemnitor (which consent shall not be unreasonably withheld), to settle or
compromise any such Third Party Claim on terms satisfactory to it.
54
Section 11.07. Indemnification Holdback.
(a) Establishment of the Indemnification Holdback. At the Closing and
without any act of Seller, cash equal to the Indemnification Holdback will be
held back from the Purchase Price by Holdco pursuant to Section 3.02(b), and not
delivered to Seller, such amount to be governed by the terms set forth herein.
(b) Recourse to the Indemnification Holdback. The Indemnification
Holdback shall be available to compensate Holdco Indemnitees for any and all
Damages to which they are entitled to indemnification under this Article XI.
(c) Distribution of Indemnification Holdback.
(i) At 5:00 p.m., Eastern Time, on the twelve (12) month
anniversary of the Closing Date (the "First Release Date"), Holdco shall release
from the Indemnification Holdback and shall pay to Seller cash in an amount
equal to the First Release Amount minus the aggregate amount (determined in the
reasonable judgement of Holdco) of any pending claims for Damages made by Holdco
on or before the First Release Date. As claims for Damages made on or before the
First Release Date are resolved, Holdco shall pay to Seller the amount by which
(1) the remaining portion of the First Release Amount withheld pursuant to the
preceding sentence exceeds (2) the aggregate amount of any claims for Damages
made on or before the First Release Date which are pending at such time. The
term "First Release Amount" means Two Million Dollars ($2,000,000) minus the
aggregate amount of any reduction in the Indemnification Holdback made by Holdco
pursuant to Section 11.07(d) on or before the First Release Date.
(ii) At 5:00 p.m., Eastern Time, on the eighteen (18) month
anniversary of the Closing Date (the "Second Release Date"), any amount
remaining in the Indemnification Holdback (after reductions made by Holdco
pursuant to Sections 11.07(c)(i) and 11.07(d)) that is not subject to pending
claims for Damages made by Holdco, shall be released from the Indemnification
Holdback and paid to Seller in cash. As any such pending claims for Damages are
resolved, Holdco shall deliver to Seller the amount by which (1) the remaining
portion of the Indemnification Holdback, if any, exceeds (2) the aggregate
amount of any claims for Damages which are pending at such time.
(iii) When any amounts are paid to Seller pursuant to Sections
11.07(c)(i) and (ii), Holdco shall also pay Seller interest on such amounts from
the Closing Date to the payment date at the prime rate as reported in The Wall
Street Journal from time to time during the period that Holdco has held such
amounts. Any such amounts payable to Seller under this Section 11.07 shall be
paid by Holdco in immediately available funds by wire transfer or cashiers
check.
(d) Claims Upon Indemnification Holdback. Upon delivery by Holdco to
Seller of a certificate signed by any officer of Holdco (an "Officer's
Certificate"): (i) stating that a Holdco Indemnitee has paid Damages hereunder,
and (ii) specifying in reasonable detail the individual items of Damages
included in the amount so stated, the date each such item was paid and the basis
for payment of such Damages, Holdco shall, subject to the provisions of Section
55
11.07(c) hereof, be entitled to reduce the amount of the Indemnification
Holdback cash in an amount equal to such Damages.
(e) Objections to Claims. Holdco shall not reduce the amount of the
Indemnification Holdback pursuant to Section 11.07(d) hereof unless (i) Holdco
shall have received written authorization from Seller to make such reduction, or
(ii) thirty (30) days shall have elapsed from the date of delivery of the
Officer's Certificate to Seller. After such authorization or expiration or such
thirty (30) day period, Holdco shall be entitled to reduce the amount of the
Indemnification Holdback in accordance with Section 11.07(d) hereof, unless
Seller shall object in a written statement to the claim made in the Officer's
Certificate, and such statement shall have been delivered to Holdco prior to the
expiration of such thirty (30) day period (in which case Holdco's right to
reduce the amount of the Indemnification Holdback shall be determined under
Section 11.07(f) below).
(f) Resolution of Conflicts. In the event that Seller objects in
writing to any claim or claims made in any Officer's Certificate within thirty
(30) days of receipt thereof, Seller and Holdco shall attempt promptly and in
good faith to agree upon the rights of the respective parties with respect to
each of such claims. If Seller and Holdco should so agree, a memorandum setting
forth such agreement shall be prepared and signed by both parties. Holdco shall
be entitled to rely on any such memorandum to remove cash from the
Indemnification Holdback in accordance with the terms thereof. If no such
agreement can be reached after good faith negotiation, Holdco shall be entitled
to make such reduction; provided that Seller retains the right to contest such
reduction in a proceeding in any court having competent jurisdiction and located
in Delaware or New York.
ARTICLE XII
GENERAL PROVISIONS
Section 12.01. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including facsimile or similar
writing) and shall be given:
(a) if to Holdco, to:
Charter Communications Holding Company, LLC
00000 Xxxxxxxxxxx Xxxxx
Xx. Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Senior Vice President, General Counsel and Secretary
Facsimile No.: (000) 000-0000
with a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
56
(b) if to Seller, to:
High Speed Access Corp.
00000 Xxxx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. X'Xxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Chrysalis Ventures, LLC
1650 National City Tower, 000 X. Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Xx.
Facsimile No.: (000) 000-0000
and to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
or such other address or facsimile number as such party may hereafter specify
for the purpose by written notice to the other parties hereto. Each such notice,
request or other communication shall be effective (i) if given by facsimile,
when such facsimile is transmitted to the fax number specified in this Section
12.01 and the appropriate fax confirmation is received or (ii) if given by any
other means, when delivered at the address specified in this Section 12.01.
Section 12.02. Entire Agreement. This Agreement and the other
Transaction Documents constitute the entire agreement among the parties with
respect to the subject matter hereof and thereof and supersede all prior
agreements and understandings, both written and oral, between the parties with
respect to such subject matter.
Section 12.03. Severability. If any provision of this Agreement (or any
portion thereof) or the application of any such provision (or any portion
thereof) to any Person or circumstance is held by a court of competent
jurisdiction to be invalid, illegal or unenforceable in any respect, (i) such
invalidity, illegality or unenforceability shall not affect any other provision
hereof (or the remaining portion thereof) or the application of such provision
to any other persons or circumstances, and (ii) 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 in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the extent possible.
Section 12.04. Third Party Beneficiaries. Neither this Agreement, nor
the Confidentiality Agreement nor any other agreement contemplated hereby or
thereby (or any
57
provision hereof or thereof) is intended to confer any rights or remedies on any
Person other than the parties hereto or thereto.
Section 12.05. Assignment. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any party hereto
without the prior written consent of the other party, except that Holdco may
assign to any Affiliates of Holdco the right to acquire part or all of the
Acquired Assets hereunder; provided, however, that any such assignment shall not
release Holdco from any obligation or liability hereunder (including any right
or obligation under Article XI). Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and assigns.
Section 12.06. Specific Performance. The parties recognize in the event
that Seller should refuse to perform under the provisions of this Agreement,
monetary damages alone will not be adequate. Holdco shall therefore each be
entitled, in addition to any other remedies that may be available, including
monetary damages, to obtain specific performance of the terms of this Agreement.
In the event of any action to enforce this Agreement specifically, Seller waives
the defense that there is an adequate remedy at law.
Section 12.07. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
contracts made and to be performed entirely in the State of New York, regardless
of the Legal Requirement that might otherwise govern under applicable principles
of conflict of laws.
Section 12.08. Waiver of Jury Trial. Each of the parties hereto hereby
irrevocably waives any and all right to trial by jury in any action or
proceeding in connection with this Agreement or any transaction contemplated
hereby.
Section 12.09. Exhibits and Schedules. The Exhibits and Schedules
attached to and delivered with this Agreement are a part of this Agreement the
same as if fully set forth herein and all references herein to any Section of
this Agreement shall be deemed to include a reference to any Schedule named
therein.
Section 12.10. No Strict Construction. Holdco and Seller hereby
acknowledge that (i) Holdco and Seller jointly and equally participated in the
drafting of this Agreement and all other agreements contemplated hereby, (ii)
both Holdco and Seller have been adequately represented and advised by legal
counsel with respect to this Agreement and the transactions contemplated hereby,
and (iii) no presumption shall be made that any provision of this Agreement
shall be construed against either party by reason of any role in the drafting of
this Agreement or any other agreement contemplated hereby.
Section 12.11. Counterparts; Effectiveness. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received counterparts hereof signed by all of the other parties hereto.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
by their respective officers thereunto duly authorized, all as of the date first
written above.
HIGH SPEED ACCESS CORP.
By: /s/ XXXXXX X. X'XXXXX
------------------------------------
Name: Xxxxxx X. X'Xxxxx
Title: President & CEO
CHARTER COMMUNICATIONS HOLDING COMPANY,
LLC
By: /s/XXXXXX X. XXXX
------------------------------------
Name: Xxxxxx X. Xxxx
Title: Senior Vice President, General
Counsel & Secretary
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