EXHIBIT 5
4/25/01
EXECUTION COPY
STOCK PURCHASE AGREEMENT
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STOCK PURCHASE AGREEMENT, dated as of April 25, 2001 (this
"Agreement"), among Xxxxxx X. Xxxx ("JHK") and Xxxx Xxxxxxx Xxxx ("MRK") (JHK
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and MRK are hereinafter referred to individually as a "Seller" and collectively
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as the "Sellers"), and Ascent Entertainment Group, Inc., a Delaware corporation
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("Buyer").
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RECITALS
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WHEREAS, Sellers desire to sell and Buyer desires to buy the number
of shares of the common stock, par value $0.01 per share (the "Common Stock"),
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of On Command Corporation, a Delaware corporation (the "Company"), referred to
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herein, all subject to the terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the mutual promises set
forth herein, and upon the terms and subject to the conditions hereof, the
parties hereto agree as follows:
SECTION 1. PURCHASE AND SALE
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1.1 Purchase Price; Payment.
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(a) Subject to the terms and conditions contained herein, each
Seller hereby agrees to sell, transfer and assign to Buyer and Buyer hereby
agrees to purchase, acquire and accept from each Seller, the number of shares of
Common Stock set forth opposite such Seller's name on Schedule 1 hereto in
consideration of the payment to the Sellers of $25,200,000 (the "Purchase
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Price"), payable to Sellers by wire transfer of immediately available funds as
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specified in Section 1.1(b). The number of Purchased Shares (as defined below)
shall be appropriately adjusted to reflect any stock split, reverse split, stock
dividend or other reclassification or reorganization affecting the capital stock
of the Company the record date for which occurs after the date hereof and prior
to the Closing.
(b) At the Closing (as defined below), Buyer shall pay the
Purchase Price to Sellers by (i) paying to The Bank of New York ("BNY") that
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portion of the Purchase Price which is equal to the amount necessary to repay in
full all of JHK's obligations and liabilities under the Credit Agreement, dated
as of December 29, 2000, by and between JHK and BNY (the "Credit Agreement")
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(which amount will be confirmed with BNY prior to the Closing) and (ii) paying
the remainder of the Purchase Price to an account to be designated by JHK at
least one business day prior to the Closing. In connection with the payment of
the Purchase Price, JHK agrees to reasonably cooperate with Buyer and Liberty
Media Corporation ("LMC") and to take such actions as are reasonably necessary
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in order to (x) obtain confirmation from BNY of the amounts outstanding under
the Credit Agreement and (y) obtain the termination of LMC's obligations under
the guarantee (the "Guarantee") of JHK's obligations under the Credit Agreement
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made by LMC for the benefit of BNY.
(c) The closing of the purchase and sale of the Purchased Shares
(the "Closing") shall be held at the offices of LMC on May 1, 2001, or at such
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other date and time as the parties may mutually agree. (The date on which the
Closing occurs is referred to as the "Closing Date").
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1.2 Representations and Warranties of Sellers.
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(a) JHK represents and warrants to Buyer that: (i) JHK owns the
shares of Common Stock set forth opposite his name on Schedule 1 (the "JHK
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Purchased Shares") free and clear of all security interests, claims, liens and
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encumbrances of any nature, including, but not limited to, any rights of third
parties in or to the JHK Purchased Shares arising out of or relating to the
application of community property laws or spousal or other rights of a similar
nature; (ii) JHK has full power and authority to sell, transfer and assign to
Buyer all his right, title and interest in and to the JHK Purchased Shares;
(iii) immediately after the sale, transfer and assignment thereof at the
Closing, Buyer will have good title to the JHK Purchased Shares free and clear
of all security interests, claims, liens and encumbrances of any nature (other
than any arising pursuant to this Agreement or under state or federal securities
laws or created by Buyer); (iv) this Agreement has been duly and validly
executed and delivered by JHK and, assuming the due execution and delivery
thereof by Buyer, is a valid and binding obligation of JHK, enforceable against
JHK in accordance with its terms, except as such enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting the rights of creditors generally and by general principles of equity;
and (v) assuming that the JHK Purchased Shares are sold to Buyer in a
transaction exempt from registration under the Securities Act of 1933, as
amended (the "Securities Act") and from qualification or registration under
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applicable state securities laws, (A) no consent, approval or authorization of,
nor any registration, qualification or filing with, any governmental agency or
authority or any other person is required on the part of JHK in order for JHK to
execute or deliver this Agreement or to sell the JHK Purchased Shares to Buyer
at the Closing, and (B) the execution and delivery of this Agreement by JHK and
the sale by him of the JHK Purchased Shares to Buyer at the Closing hereunder
will not conflict with or result in a breach or violation of, or accelerate the
maturity or the date upon which performance must be commenced or completed
under, any material agreement to which JHK is a party.
(b) MRK represents and warrants to Buyer that: (i) MRK owns the
shares of Common Stock set forth opposite her name on Schedule 1 (the "MRK
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Purchased Shares" and, together with the JHK Purchased Shares, the "Purchased
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Shares") free and clear of all security interests, claims, liens and
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encumbrances of any nature, including, but not limited to, any rights of third
parties in or to the MRK Purchased Shares arising out of or relating to the
application of community property laws or spousal or other rights of a similar
nature; (ii) MRK has full power and authority to sell, transfer and assign to
Buyer all her right, title and interest in and to the MRK Purchased Shares;
(iii) immediately after the sale, transfer and assignment thereof at the
Closing, Buyer will have good title to the MRK Purchased Shares free and clear
of all security interests, claims, liens and encumbrances of any nature (other
than any arising pursuant to this Agreement or under state or federal securities
laws or created by Buyer); (iv) this Agreement has been duly and validly
executed and delivered by MRK and, assuming the due execution and delivery
thereof by Buyer, is a valid and binding obligation of MRK, enforceable against
MRK in accordance with its terms, except as such enforceability may be limited
by
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bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting the rights of creditors generally and by general principles of equity;
and (v) assuming that the MRK Purchased Shares are sold to Buyer in a
transaction exempt from registration under the Securities Act and from
qualification or registration under applicable state securities laws, (A) no
consent, approval or authorization of, nor any registration, qualification or
filing with, any governmental agency or authority or any other person is
required on the part of MRK in order for MRK to execute or deliver this
Agreement or to sell the MRK Purchased Shares to Buyer at the Closing, and (B)
the execution and delivery of this Agreement by MRK and the sale by her of the
MRK Purchased Shares to Buyer at the Closing hereunder will not conflict with or
result in a breach or violation of, or accelerate the maturity or the date upon
which performance must be commenced or completed under, any material agreement
to which MRK is a party.
(c) JHK and MRK jointly and severally represent and warrant to
Buyer that they are parties to a valid and enforceable pre-nuptial agreement
pursuant to which JHK and MRK have waived any rights each may have to the
Purchased Shares owned by the other or to the proceeds of the sale of the
Purchased Shares hereunder.
1.3 Representations of Buyer. Buyer represents and warrants to
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each Seller that: (a) Buyer is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Delaware, and (b) this
Agreement has been duly and validly executed and delivered by Buyer, and,
assuming the due execution and delivery thereof by each Seller, is a valid and
binding obligation of Buyer enforceable against Buyer in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the rights of
creditors generally and by general principles of equity.
SECTION 2. DELIVERIES OF SELLERS AT CLOSING
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At the Closing, Sellers will (a) deliver to Buyer a stock
certificate or certificates representing the Purchased Shares accompanied by
duly executed instruments of transfer in the name of Buyer (or such other
permitted assignee of Buyer as shall be designated by Buyer) or duly endorsed in
blank, together with stock transfer tax stamps attached and/or (b) deliver to
Buyer written confirmation or other evidence reasonably satisfactory to Buyer
that the Purchased Shares (other than Purchased Shares for which certificates
are being delivered) have been deposited by book entry transfer to an account of
Buyer or its designee maintained with a bank, brokerage firm or other financial
institution. Buyer shall provide Sellers with written notice identifying such
account at least one business day prior to the Closing Date.
SECTION 3. DELIVERIES OF BUYER AT CLOSING
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At the Closing, Buyer will pay the Purchase Price for the Purchased
Shares in accordance with Section 1.1(b). In addition, at the Closing Buyer
will deliver to JHK (i) the cancelled promissory note of JHK, dated December 29,
2000, in the principal amount of $19,200,000 and (ii) an instrument, reasonably
satisfactory to JHK, acknowledging the release of all Collateral (as defined in
the Security Agreement, dated as of December 29, 2000, between LMC and JHK (the
"Security Agreement")) held by LMC as the Secured Party (as defined in the
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Security Agreement) under the Security Agreement.
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SECTION 4. CONDITIONS OF BUYER'S OBLIGATIONS
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The obligation of Buyer to consummate the purchase of the Purchased
Shares contemplated by this Agreement is subject to the satisfaction of the
following conditions, any of which may be waived in writing by Buyer:
(a) Proceedings Restrained. There shall be no statute, rule,
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order, judgement or decree in effect nor any action, suit, investigation or
proceeding, governmental or otherwise, pending against or applicable to Buyer or
its subsidiaries seeking to, restrain, enjoin, prevent the consummation of or
otherwise challenge the consummation of the transactions contemplated hereby.
(b) Representations and Warranties True and Correct. Each of
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the representations and warranties of the Sellers contained in this Agreement
shall be true and correct in all material respects as of the date hereof and as
of the Closing, with the same effect as if then made.
(c) Deliveries. Each Seller shall have delivered the
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documents and instruments required pursuant to Section 2, together with a
certificate as to the matters referred to in subsection (b) above.
(d) Termination of Guarantee. Buyer shall have received
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evidence, reasonably satisfactory to it, that upon payment of the portion of the
Purchase Price determined pursuant to Section 1.1(b)(i) to BNY, all liabilities
and obligations of LMC under the Guarantee shall be released and such Guarantee
shall terminate.
SECTION 5. CONDITIONS OF SELLER'S OBLIGATIONS
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Each Seller's obligation to consummate the transactions contemplated
by this Agreement are subject to the satisfaction of the following conditions,
any of which may be waived in writing by such Seller:
(a) Proceedings Restrained. There shall be no statute, rule,
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order, judgement or decree in effect nor any action, suit, investigation or
proceeding, governmental or otherwise, pending against or applicable to the
Sellers or Buyer or its subsidiaries seeking to, restrain, enjoin, prevent the
consummation of or otherwise challenge the consummation of the transactions
contemplated hereby.
(b) Representations and Warranties True and Correct. Each of
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the representations and warranties of Buyer contained in this Agreement shall be
true and correct in all material respects as of the date hereof and as of the
Closing, with the same effect as if then made.
(c) Deliveries. Buyer shall have delivered all documents and
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instruments required pursuant to Section 3, together with a certificate,
executed by a vice-president of Buyer, as to the matters referred to in
subsection (b) above.
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SECTION 6. COVENANTS
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6.1 Mutual Covenants. Each party hereto covenants to the other
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party to exercise its commercially reasonable efforts to perform, comply with,
and otherwise satisfy each of the conditions to be satisfied by such party
hereunder and obtain all consents required to be obtained by such party for the
consummation of the transactions contemplated hereby.
SECTION 7. MISCELLANEOUS
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7.1 Governing Law. This Agreement shall be construed in accordance
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with and governed by the laws of the State of Colorado, without regard to
conflicts of laws.
7.2 Assignments. No party hereto (or any permitted assignee of
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such party's rights or obligations hereunder) may assign its right or delegate
its obligations hereunder without the prior written consent of the other party
hereto, except as otherwise permitted by and in accordance with the terms hereof
and except that Buyer may assign its rights and obligations hereunder to an
entity wholly owned beneficially by Buyer as of the Closing.
7.3 Counterparts. This Agreement may be executed in several
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counterparts and as so executed shall constitute one agreement binding on the
parties hereto.
7.4 Further Actions After the Closing. If, subsequent to the
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Closing Date, further documents are reasonably requested in order to carry out
the provisions and purposes of this Agreement, the parties hereto shall execute
and deliver such further documents.
7.5 Severability. In the event that any part or parts of this
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Agreement shall be held to be unenforceable to its or their full extent, then it
is the intention of the parties hereto that such part or parts shall be enforced
to the full extent permitted under the laws, and in any event, that all other
parts of this Agreement shall remain valid and fully enforceable as if the
unenforceable part or parts had never been a part hereof.
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the date first written above.
ASCENT ENTERTAINMENT GROUP, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
/s/ Xxxx Xxxxxxx Xxxx
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Xxxx Xxxxxxx Xxxx
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Schedule 1
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No. of
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Seller Purchased Shares
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JHK 2,225,155
MRK 20,000
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