1
Exhibit 2.6(b)
STOCK PURCHASE AGREEMENT
dated as of April 20, 1999
between
TCID IP-V, INC.
and
CHARTER COMMUNICATIONS, LLC
2
TABLE OF CONTENTS
1. DEFINITIONS.......................................................1
1.1. Affiliate................................................1
1.2. Business Day.............................................2
1.3. Class B Common Stock.....................................2
1.4. Charter Required Consents................................2
1.5. Class B Redemption Price.................................2
1.6. Closing..................................................2
1.7. Closing Time.............................................2
1.8. Contract.................................................2
1.9. FCC......................................................2
1.10. Governmental Authority...................................2
1.11. HSR Act..................................................2
1.12. Judgment.................................................2
1.13. Legal Requirement........................................3
1.14. Lien.....................................................3
1.15. Litigation...............................................3
1.16. Losses...................................................3
1.17. Party....................................................3
1.18. Permitted Stock Restrictions.............................3
1.19. Person...................................................3
1.20. Preferred Stock Liquidation Value........................3
1.21. Required Consents........................................3
1.22. Series A Voting Preferred Stock..........................3
1.23. Six-Month Date...........................................3
1.24. Taxes....................................................3
1.25. TCID Required Consents...................................4
1.26. TCID RMG Shares..........................................4
1.27. Third Party..............................................4
1.28. Transaction Documents....................................4
1.29. Other Definitions........................................4
1.30. Usage....................................................4
2. PURCHASE AND SALE.................................................5
2.1. Purchase and Sale of the TCID RMG Shares.................5
3. CHARTER'S REPRESENTATIONS AND WARRANTIES..........................5
3.1. Organization and Qualification of Charter................5
3.2. Authority and Validity...................................5
3.3. No Conflict; Required Consents...........................6
3.4. Litigation...............................................6
(i)
3
3.5. Finder and Brokers.......................................6
3.6. Qualification............................................6
3.7. Securities Law Matters...................................7
3.8. Investment Intent........................................7
4. TCID'S REPRESENTATIONS AND WARRANTIES.............................7
4.1. Organization and Qualification...........................7
4.2. Authority and Validity...................................7
4.3. No Conflict; Required Consents...........................8
4.4. Ownership................................................8
4.5. Litigation...............................................8
4.6. Finder and Brokers.......................................8
5. ADDITIONAL COVENANTS..............................................8
5.1. Certain Deliveries and Notice............................9
5.2. Required Consents........................................9
5.3. HSR Notification.........................................9
5.4. Confidentiality and Publicity............................9
5.5. Further Assurances......................................10
5.6. Offers..................................................10
6. CONDITIONS PRECEDENT.............................................11
6.1. Conditions to Charter's Obligations.....................11
6.2. Conditions to TCID's Obligations........................12
7. THE CLOSING......................................................13
7.1. The Closing; Time and Place.............................13
7.2. TCID's Delivery Obligations.............................13
7.3. Charter's Delivery Obligations..........................13
8. TERMINATION AND DEFAULT..........................................14
8.1. Termination Events......................................14
8.2. Effect of Termination...................................15
9. SURVIVAL; REMEDIES...............................................15
9.1. Survival of Representations, Warranties,
Covenants and Agreements................................15
9.2. Exclusive Remedy........................................15
10. MISCELLANEOUS PROVISIONS.........................................15
10.1. Parties Obligated and Benefitted........................15
10.2. Notices.................................................15
10.3. Right to Specific Performance...........................17
10.4. Waiver..................................................17
(ii)
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10.5. Captions................................................17
10.6. Governing Law...........................................17
10.7. Time....................................................17
10.8. Late Payments...........................................17
10.9. Counterparts............................................17
10.10. Entire Agreement........................................17
10.11. Severability............................................17
10.12. Construction............................................18
10.13. Expenses................................................18
10.14. Commercially Reasonable Efforts.........................18
(iii)
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(iv)
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Schedules
3.3 Charter Required Consents
3.4 Charter Litigation/Judgments
4.3 TCID Required Consents
4.6 TCID Litigation/Judgments
(v)
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STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement ("Agreement") is made as of April 20, 1999,
by and between TCID IP-V, Inc., a Colorado corporation ("TCID") and Charter
Communications, LLC, a Delaware limited liability company ("Charter").
Recitals
A. Concurrently with the execution of this Agreement, InterMedia
Partners of West Tennessee, L.P. ("IPWT") and Charter have entered into an Asset
and Stock Purchase Agreement (the "IPWT Asset and Stock Purchase Agreement")
pursuant to which IPWT has agreed to sell, and Charter has agreed to purchase,
substantially all of IPWT's assets, including all of the outstanding Class A
Common Stock in ▇▇▇▇▇ Media Group, Inc., a Nevada corporation ("RMG").
B. TCID owns all of the outstanding Class B Common Stock and Series
A Voting Preferred Stock in RMG. Charter wishes to purchase, and TCID wished to
sell, all of such stock in RMG, effective immediately after the Closing under
the IPWT Asset and Stock Purchase Agreement, in accordance with this Agreement.
C. Concurrently with the execution of this Agreement, TCID and
Charter, among others, have entered into a Common Agreement (the "Common
Agreement") pursuant to which they have agreed to certain issues common to each
of the transfers made pursuant to this Agreement, the IPWT Asset and Stock
Purchase Agreement and to certain other related transactions (each as more fully
described in the Common Agreement) that will be consummated concurrently with
this Agreement, including indemnification for breaches of representations,
warranties, covenants and agreements.
Agreement
In consideration of the covenants and agreements set forth herein and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
1. DEFINITIONS. In addition to the terms defined elsewhere in this Agreement,
the following capitalized terms or terms otherwise defined in this Article 1
will have the meanings set forth below:
1.1. Affiliate. With respect to any Person, any other Person controlling,
controlled by, or under common control with such Person. As used in this
Agreement, "control" means the ownership, directly or indirectly, of voting
securities representing the right generally to elect a majority of the directors
(or similar officials) of a Person or the possession, by contract or otherwise,
of the authority to direct the management and policies of a Person.
Notwithstanding the foregoing, neither InterMedia Partners Southeast, InterMedia
Partners of West Tennessee, L.P., InterMedia
(1)
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Capital Partners IV, L.P., InterMedia Capital Management, LLC, nor InterMedia
Partners IV, L.P., will be deemed an Affiliate of TCID.
1.2. Business Day. Any day other than a Saturday, Sunday or a day on which
the banking institutions in Denver, Colorado, New York, New York, San Francisco,
California or St. Louis, Missouri are required or authorized to be closed.
1.3. Class B Common Stock. The 365 issued and outstanding shares of Class
B Common Stock (par value $100 per share) of RMG.
1.4. Charter Required Consents. Any and all consents, authorizations and
approvals which are identified on Schedule 3.3 and required for Charter to
purchase, own and hold the TCID RMG Shares.
1.5. Class B Redemption Price. An amount equal to $36,500 plus an annual
rate of 8% of such amount, from July 29, 1996 through the Closing Date.
1.6. Closing. The closing of the purchase and sale transaction
contemplated by this Agreement.
1.7. Closing Time. 11:59 p.m., Eastern time, on the Closing Date,
immediately following the "Closing Time" as defined in the IPWT Asset and Stock
Purchase Agreement.
1.8. Contract. Any contract, mortgage, deed of trust, bond, indenture,
lease, license, note, franchise, certificate, option, warrant, right or other
instrument, document, obligation or agreement, whether written or oral.
1.9. FCC. The Federal Communications Commission.
1.10. Governmental Authority. The United States of America, any state,
commonwealth, territory or possession of the United States of America and any
political subdivision or quasi-governmental authority of any of the same,
including any court, tribunal, department, commission, board, bureau, agency,
county, municipality, province, parish or other instrumentality of any of the
foregoing.
1.11. HSR Act. The ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976,
as amended, and the rules and regulations promulgated thereunder.
1.12. Judgment. 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.
(2)
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1.13. Legal Requirement. Applicable common law and any statute, ordinance,
code or other law, rule, regulation, order, technical or other written standard,
requirement or procedure enacted, adopted, promulgated, applied or followed by
any Governmental Authority, including any Judgment.
1.14. Lien. Any lien security interest, security agreement, financing
statement filed with any Governmental Authority, adverse claim or other
encumbrance of any kind whatsoever.
1.15. Litigation. Any claim, action, suit, proceeding, arbitration,
investigation, hearing or other activity or procedure that could reasonably be
expected to result in a Judgment and any notice of any of the foregoing.
1.16. Losses. Any claims, losses, liabilities, damages, penalties, costs
and expenses, including interest that may be imposed in connection therewith,
expenses of investigation, reasonable fees and disbursements of counsel and
other experts, and the cost to any Person making a claim or seeking
indemnification under this Agreement with respect to funds expended by such
Person by reason of the occurrence of any event or the existence or assertion of
any Liens (other than Permitted Liens) with respect to which indemnification is
sought.
1.17. Party. Charter or TCID, as the context requires.
1.18. Permitted Stock Restrictions. Restrictions on transfer of all or any
part of the TCID RMG Shares imposed by cable television franchises owned or
controlled by RMG, the Communications Act of 1934, as amended, and the rules and
regulations of the FCC thereunder, federal and state securities laws, and other
applicable laws.
1.19. Person. Any natural person, Governmental Authority, corporation,
general or limited partnership, limited liability company, joint venture, trust,
association or unincorporated entity of any kind.
1.20. Preferred Stock Liquidation Value. An amount equal to $12,000,000,
plus an annual rate of 10% of such amount, from July 29, 1996 through the
Closing Date.
1.21. Required Consents. The Charter Required Consents or the TCID
Required Consents, as the context requires.
1.22. Series A Voting Preferred Stock. The 12,000 issued and outstanding
shares of Series A Voting Preferred Stock (par value $1,000 per share) of RMG.
1.23. Six-Month Date. The date that is six months after the Closing Date.
1.24. Taxes. Levies and assessments of any kind or nature imposed by any
Governmental Authority, including all income, sales, use, ad valorem, value
added, franchise, severance, net or
(3)
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gross proceeds, withholding, payroll, employment, excise or property taxes and
levies or assessments related to unclaimed property, together with any interest
thereon and any penalties, additions to tax or additional amounts applicable
thereto. For purposes of determining any Tax cost or Tax benefit to any Person,
such amount will be the actual cost or benefit recognized by such Person at the
time of actual payment of the additional Tax or actual recognition of the Tax
benefit. In the event that any Loss, payment or other amount is required to be
determined on an after-Tax basis, such payment or other amount will be
determined without regard to any Tax cost or Tax benefit not actually recognized
at the time of the determination, and appropriate adjustments will be made when
and to the extent that such Tax cost or Tax benefit is actually recognized.
1.25. TCID Required Consents. Any and all consents, authorizations and
approvals which are identified on Schedule 4.3 and required for TCID to transfer
the TCID RMG shares to Charter pursuant to this Agreement.
1.26. TCID RMG Shares. The Class B Common Stock and Series A Voting
Preferred Stock.
1.27. Third Party. Any Person other than, with respect to TCID, TCID and
its Affiliates, or, with respect to Charter, Charter and its Affiliates.
1.28. Transaction Documents. The Common Agreement and all instruments and
documents described in Sections 7.2 and 7.3 which are being executed and
delivered by or on behalf of Charter or TCID in connection with this Agreement
or the transactions contemplated hereby.
1.29. Other Definitions. The following terms have the meanings set forth
in the sections indicated in the table below:
Term Section
---- -------
Agreement First Paragraph
Antitrust Division 5.3
Charter First Paragraph
Closing Date 7.1
FTC 5.3
IPWT Recital A
IPWT Asset and Stock Purchase Agreement Recital A
RMG Recital A
Securities Act 3.5
Survival Period 9.1
TCID First Paragraph
1.30. Usage. The definitions in Article 1 will apply equally to both the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun will include the corresponding masculine, feminine and
neuter forms. All references herein to Articles, Sections and
(4)
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Schedules will be deemed to be references to Articles and Sections of, and
Schedules to, this Agreement unless the context otherwise requires. All
Schedules attached hereto will be deemed incorporated herein as if set forth in
full herein and, unless otherwise defined therein, all terms used in any
Schedule will have the meaning ascribed to such term in this Agreement. The
words "include," "includes" and "including" will be deemed to be followed by the
phrase "without limitation." The words "hereof," "herein" and "hereunder" and
words of similar import when used in this Agreement will refer to this Agreement
as a whole and not to any particular provision of this Agreement. Unless
otherwise expressly provided herein, any agreement, instrument or statute
defined or referred to herein or in any agreement or instrument that is referred
to herein means such agreement, instrument or statute as from time to time
amended, modified or supplemented, including (in the case of agreements or
instruments) by waiver or consent and (in the case of statutes) by succession of
comparable successor statutes and references to all attachments thereto and
instruments incorporated therein. All accounting terms not otherwise defined in
this Agreement will have the meanings ascribed to them under generally
acceptable accounting principles as in effect from time to time in the United
States, consistently applied.
2. PURCHASE AND SALE.
2.1. Purchase and Sale of the TCID RMG Shares.
2.1.1. At the Closing, TCID will sell, assign, transfer, convey and
deliver to Charter free and clear of all Liens (other than Permitted Stock
Restrictions) all of the Class B Common Stock, and Charter will, as the
consideration for the sale of such Class B Common Stock, pay to TCID the Class B
Redemption Price, by wire transfer of immediately available funds pursuant to
wire transfer instructions delivered by TCID to Charter.
2.1.2. At the Closing, TCID will sell, assign, transfer, convey and
deliver to Charter free and clear of all Liens (other than Permitted Stock
Restrictions) all of the Series A Voting Preferred Stock, and Charter will, as
the consideration for the sale of such Series A Voting Preferred Stock, pay to
TCID the Preferred Stock Liquidation Value, by wire transfer of immediately
available funds pursuant to wire transfer instructions delivered by TCID to
Charter.
3. CHARTER'S REPRESENTATIONS AND WARRANTIES. Charter represents and warrants to
TCID as of the date of this Agreement and as of the Closing, as follows:
3.1. Organization and Qualification of Charter. Charter is a limited
liability company which has been duly formed, validly existing and in good
standing under the laws of the State of Delaware. As of the date of this
Agreement, Charter is duly qualified to do business and is in good standing
under the laws of each jurisdiction in which its activities make such
qualification necessary.
3.2. Authority and Validity. Charter has all requisite power and authority
to execute and deliver, to perform its obligations under, and to consummate the
transactions contemplated by, this Agreement and the Transaction Documents to
which it is a party. The execution and delivery by
(5)
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Charter of, the performance of Charter under, and the consummation by Charter of
the transactions contemplated by, this Agreement and the Transaction Documents
to which it is a party have been duly and validly authorized by all action by or
on behalf of Charter. This Agreement has been, and when executed and delivered
by Charter, the Transaction Documents to which it is a party will be, duly and
validly executed and delivered by Charter and the valid and binding obligations
of Charter, enforceable against Charter in accordance with their terms, except
as the same may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws now or hereafter in effect relating to the
enforcement of creditors' rights generally or by principles governing the
availability of equitable remedies.
3.3. No Conflict; Required Consents. Except as set forth on Schedule 3.3,
assuming all TCID Required Consents have been obtained and the expiration or
earlier termination of the waiting period under the HSR Act has occurred, the
execution and delivery by Charter of, the performance of Charter under, and the
consummation by Charter of the transactions contemplated by, this Agreement and
the Transaction Documents to which it is a party do not and will not: (a)
conflict with or violate any provision of the organizational documents of
Charter; (b) violate any provision of any Legal Requirement; (c) require any
consent, approval or authorization of, or filing of any certificate, notice,
application, report or other document with, any Governmental Authority or other
Person; or (d) (i) conflict with, violate, result in a breach of or constitute a
default under (without regard to requirements of notice, lapse of time or
elections of other Persons or any combination thereof), (ii) permit or result in
the termination, suspension or modification of, (iii) result in the acceleration
of (or give any Person the right to accelerate) the performance of Charter
under, or (iv) result in the creation or imposition of any Contract or other
instrument by which Charter or any of its assets is bound or affected, except
for purposes of clauses (c) and (d) such consents, approvals, authorizations and
filings that, if not obtained or made, would not, and such violations,
conflicts, breaches, defaults, terminations, suspensions, modifications and
accelerations as would not, individually or in the aggregate, have an adverse
effect on the ability of Charter to perform its obligations under this Agreement
or the Transaction Documents to which it is a party.
3.4. Litigation. Except as set forth in Schedule 3.4: (a) as of the date
of this Agreement, there is no Litigation pending or, to Charter's knowledge,
threatened against Charter or any Affiliate of Charter which, if adversely
determined, would adversely affect the ability of Charter to perform its
obligations under this Agreement; and (b) as of the date of this Agreement,
there is not in existence any Judgment binding Charter or any Affiliate of
Charter that could reasonably be expected to adversely affect the ability of
Charter to perform its obligations under this Agreement.
3.5. Finder and Brokers. Charter has not entered into any Contract with
any person which will result in the obligation of TCID to pay any finder's fees,
brokerage or agent's commissions or other like payments in connection with the
negotiations leading to this Agreement or the consummation of the transactions
contemplated hereby.
3.6. Qualification. Charter knows of no facts which would disqualify it
from holding the TCID RMG Shares under any Legal Requirement.
(6)
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3.7. Securities Law Matters. Charter understands and acknowledges that
none of the TCID RMG Shares has been registered or qualified under the federal
or applicable state securities laws and the TCID RMG Shares are being sold to
and purchase by Charter in reliance upon applicable exemptions from such
registration and qualification requirements. Charter is an "accredited investor"
within the meaning of the federal securities laws and acknowledges it has been
furnished with or afforded access to, and has had the opportunity to ask
questions and receive answers concerning, all information pertaining to the TCID
RMG Shares. The TCID RMG Shares are being acquired by Charter for investment
only and not with a view to any public distribution thereof. Charter understands
that the TCID RMG Shares are "restricted securities" within the meaning of the
federal securities laws and agrees that it will not offer to sell or otherwise
dispose of any of the TCID RMG Shares in violation of the registration and
qualification requirements of the federal and applicable state securities laws.
All certificates to be delivered at Closing evidencing ownership of the TCID RMG
Shares will contain appropriate legends incorporating these applicable
securities laws restrictions.
3.8. Investment Intent. Charter represents and warrants to TCID that (a)
Charter is an "accredited investor" as defined in Rule 501(a) of Regulation D
under the Securities Act of 1933, as amended (the "Securities Act") and (b)
Charter is acquiring the TCID RMG Shares for its own account, for investment
only and without a view to the distribution thereof except in a transaction
registered or qualified under the Securities Act, and applicable state
securities laws, or unless an exemption from those requirements is available.
4. TCID'S REPRESENTATIONS AND WARRANTIES.
TCID represents and warrants to Charter as of the date of this Agreement
and as of the Closing, as follows:
4.1. Organization and Qualification. TCID is a corporation which has been
duly organized and is validly existing and in good standing under the laws of
the State of Colorado. As of the date of this Agreement, TCID is duly qualified
to do business and is in good standing under the laws of each jurisdiction in
which its activities make such qualification necessary.
4.2. Authority and Validity. TCID has all requisite corporate power and
authority to execute and deliver, to perform its obligations under, and to
consummate the transactions contemplated by, this Agreement and the Transaction
Documents to which it is a party. The execution and delivery by TCID of, the
performance of TCID under, and the consummation by TCID of the transactions
contemplated by, this Agreement and the Transaction Documents to which it is a
party have been duly and validly authorized by all action by or on behalf of
TCID. This Agreement has been, and when executed and delivered by TCID the
Transaction Documents to which it is a party will be, duly and validly executed
and delivered by TCID and the valid and binding obligations of TCID, enforceable
against TCID in accordance with their terms, except as the same may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar
(7)
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laws now or hereafter in effect relating to the enforcement of creditors' rights
generally or by principles governing the availability of equitable remedies.
4.3. No Conflict; Required Consents. Except as set forth on Schedule 4.3,
and assuming all Charter Required Consents have been obtained and the expiration
or earlier termination of the waiting period under the HSR Act has occurred, the
execution and delivery by TCID of, the performance of TCID under, and the
consummation by TCID of the transactions contemplated by, this Agreement and the
Transaction Documents to which it is a party do not and will not: (a) conflict
with or violate any provision of the organizational documents of TCID; (b)
violate any provision of any Legal Requirement; (c) require any consent,
approval or authorization of, or filing of any certificate, notice, application,
report or other document with, any Governmental Authority or other Person; or
(d) (i) conflict with, violate, result in a breach of or constitute a default
under (without regard to requirements of notice, lapse of time or elections of
other Persons or any combination thereof), (ii) permit or result in the
termination, suspension or modification of, (iii) result in the acceleration of
(or give any Person the right to accelerate) the performance of TCID under, or
(iv) result in the creation or imposition of any Contract or other instrument by
which TCID or any of its assets is bound or affected, except for purposes of
clauses (c) and (d) such consents, approvals, authorizations and filings that,
if not obtained or made, would not, and such violations, conflicts, breaches,
defaults, terminations, suspensions, modifications and accelerations as would
not, individually or in the aggregate, have an adverse effect on the ability of
TCID to perform its obligations under this Agreement or the Transaction
Documents to which it is a party.
4.4. Ownership. Except with respect to Liens that will be released or
terminated at or prior to the Closing, TCID owns the TCID RMG Shares,
beneficially and of record, and free and clear of all Liens, other than
Permitted Stock Restrictions. Other than this Agreement and any agreement with
respect to the pledge of the TCID RMG Shares that will be released or terminated
at or prior to the Closing, there is no agreement between TCID and any Person
with respect to the disposition of the TCID RMG Shares that would interfere with
the transactions contemplated by this Agreement.
4.5. Litigation. Except as set forth in Schedule 4.6: (a) as of the date
of this Agreement, there is no Litigation pending or, to TCID's knowledge,
threatened against TCID or any Affiliate of TCID which, if adversely determined,
would adversely affect the ability of TCID to perform its obligations under this
Agreement; and (b) as of the date of this Agreement, there is not in existence
any Judgment binding TCID or any Affiliate of TCID that could reasonably be
expected to adversely affect the ability of TCID to perform its obligations
under this Agreement.
4.6. Finder and Brokers. TCID has not entered into any Contract with any
person which will result in the obligation of Charter to pay any finder's fees,
brokerage or agent's commissions or other like payments in connection with the
negotiations leading to this Agreement or the consummation of the transactions
contemplated hereby.
5. ADDITIONAL COVENANTS.
(8)
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5.1. Certain Deliveries and Notice. TCID and Charter each will promptly
notify the other of any fact, circumstance, event or action by it or otherwise
(a) which, if known at the date of this Agreement, would have been required to
be disclosed by it in or pursuant to this Agreement or (b) the existence,
occurrence or taking of which would result in the condition of TCID in Section
6.2.1 (with respect to the representations and warranties of Charter) or the
condition of Charter in Section 6.1.1 (with respect to the representations and
warranties of TCID) not being satisfied at any time prior to or on the Closing,
and, with respect to clause (b), use its commercially reasonable efforts to
remedy the same and to satisfy such condition to the other Party's obligation to
consummate the transactions contemplated by this Agreement.
5.2. Required Consents. Each Party will use its commercially reasonable
efforts to obtain in writing as promptly as possible and at its expense, all of
the Required Consents and any other consent, authorization or approval required
to be obtained by such Party in connection with the transactions contemplated by
this Agreement, and deliver to the other Party copies of such Required Consents
and such other consents, authorizations or approvals promptly after they are
obtained by such Party; provided, that each Party will afford the other Party
the opportunity to review, approve and revise the form of letter or application
proposed to request the Required Consent prior to delivery to the Third Party or
the Affiliate of a Party whose consent is sought. Each Party will cooperate with
the other Party to obtain all Required Consents and no Party will intentionally
take any action or steps that would prejudice or jeopardize the obtaining of any
Required Consent. No Party will accept or agree or accede to any modifications
or amendments to, or the imposition of any condition to the transfer of the TCID
RMG Shares that is not acceptable to the other Party.
5.3. HSR Notification. As soon as practicable after the execution of this
Agreement, but in any event no later than 30 days after such execution, Charter
and TCID will each complete and file, or cause to be completed and filed at its
own cost and expense, any notification and report required to be filed under the
HSR Act with respect to the transactions contemplated by this Agreement and each
such filing will request early termination of the waiting period imposed by the
HSR Act. The Parties will use their respective commercially reasonable efforts
to respond as promptly as reasonably practicable to any inquiries received from
the Federal Trade Commission (the "FTC") and the Antitrust Division of the
Department of Justice (the "Antitrust Division") for additional information or
documentation and to respond as promptly as reasonably practicable to all
inquiries and requests received from any other Governmental Authority in
connection with antitrust matters. The Parties will use their respective
commercially reasonable efforts to overcome any objections which may be raised
by the FTC, the Antitrust Division or any other Governmental Authority having
jurisdiction over antitrust matters. Each Party will cooperate to prevent
inconsistencies between their respective filings and between their respective
responses to all such inquiries and responses, and will furnish to each other
such necessary information and reasonable assistance as the other may reasonably
request in connection with its preparation of necessary filings or submissions
under the HSR Act.
5.4. Confidentiality and Publicity.
(9)
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5.4.1. Each Party will use commercially reasonable efforts to assure
that any non public information that such Party may obtain from the other in
connection with this Agreement with respect to the purchase and sale of the TCID
RMG Shares will be kept confidential and, unless and until the Closing occurs,
such Party will not disclose, and will cause its employees, consultants,
advisors and agents not to disclose, any such information to any other Person
(other than its directors, officers and employees and representatives of its
advisers and lenders whose knowledge thereof is necessary in order to facilitate
the consummation of the transactions contemplated hereby) or use, and will cause
its employees, consultants, advisors and agents not to use, such information to
the detriment of the other; provided that (a) such Party may use and disclose
any such information once it has been publicly disclosed (other than by such
Party in breach of its obligations under this Section) or which rightfully has
come into the possession of such Party (other than from the other Party) and (b)
to the extent that such Party may, in the reasonable opinion of its counsel, be
compelled by Legal Requirements to disclose any of such information, such Party
may disclose such information if it will have used all reasonable efforts, and
will have afforded the other the opportunity, to obtain an appropriate
protective order or other satisfactory assurance of confidential treatment, for
the information compelled to be disclosed. The obligation by either Party to
hold information in confidence pursuant to this Section will be satisfied if
such Party exercises the same care with respect to such information as it would
exercise to preserve the confidentiality of its own similar information. In the
event of termination of this Agreement, each Party will use all reasonable
efforts to cause to be delivered to the other, and retain no copies of, any
documents, work papers and other materials obtained by such Party or on its
behalf from the other, whether so obtained before or after the execution hereof
5.4.2. No Party will issue any press releases or make any other
public announcement concerning this Agreement and the transactions contemplated
hereby, except as required by applicable Legal Requirements, without the prior
written consent and approval of the other Party, which consent and approval may
not be unreasonably withheld.
5.5. Further Assurances. At or after the Closing, each Party at the
request of the other Party, will promptly execute and deliver, or cause to be
executed and delivered, to the other Party all such documents and instruments,
in addition to those otherwise required by this Agreement, in form and substance
reasonably satisfactory to the other Party as the other Party may reasonably
request in order to carry out or evidence the terms of this Agreement.
5.6. Offers. TCID (and its directors, officers, employees, representatives
and agents) shall not directly or indirectly, (i) offer the TCID RMG Shares for
sale, (ii) solicit, encourage or entertain offers for such TCID RMG Shares,
(iii) initiate negotiations or discussions for the sale of the TCID RMG Shares
or (iv) make information about the TCID RMG Shares available to any Third Party
in connection with the possible sale of the TCID RMG Shares prior to the Closing
Date or the date this Agreement is terminated in accordance with its terms.
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6. CONDITIONS PRECEDENT.
6.1. Conditions to Charter's Obligations. The obligations of Charter to
consummate the transactions contemplated by this Agreement will be subject to
the satisfaction, at or before the Closing, of the following conditions, one or
more of which may be waived by Charter:
6.1.1. Accuracy of Representations and Warranties. The
representations and warranties of TCID in this Agreement and in any Transaction
Documents, without giving effect to any materiality qualifications contained
therein, are true, complete and accurate on and as of the date hereof and at and
as of the Closing with the same effect as if made at and as of the Closing,
except to the extent that all misstatements, omissions and inaccuracies, in the
aggregate, do not have a material adverse effect on the TCID RMG Shares taken as
a whole, or on the ability of TCID to perform its obligations under this
Agreement.
6.1.2. Performance of Agreement. TCID will have performed in all
material respects all obligations and agreements and complied in all material
respects with all covenants in this Agreement and in any Transaction Document to
be performed and complied with by it at or before the Closing.
6.1.3. Deliveries. TCID will have delivered the items and documents
required to be delivered by it pursuant to this Agreement, including those
required to be delivered to Charter under Section 7.2.
6.1.4. Legal Proceedings. No Legal Requirement of any Governmental
Authority (including any temporary Legal Requirement) will be in effect which
would (a) prohibit Charter's ownership of the TCID RMG Shares or (b) prevent or
make illegal the consummation of any of the transactions contemplated by this
Agreement.
6.1.5. Consents. Charter will have received evidence, in form and
substance reasonably satisfactory to it, that the TCID Required Consents have
been obtained.
6.1.6. HSR Act. All filings required under the HSR Act will have
been made and the applicable waiting period will have expired or been earlier
terminated.
6.1.7. Common Agreement and Related Closings.
(a) The conditions set forth in Section 4.1 of the Common
Agreement shall have been satisfied or waived.
(b) The transactions contemplated by the IP Agreements and the
Redemption Agreement (each as defined in the Common Agreement) shall have been,
or will be, consummated concurrently with this Agreement as set forth in Section
4.4 of the Common
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Agreement, except to the extent such Agreements are not consummated as a result
of a breach by Charter or its Affiliates of its or their obligation to
consummate such transactions.
6.2. Conditions to TCID's Obligations. The obligations of TCID to
consummate the transactions contemplated by this Agreement will be subject to
the satisfaction, at or before the Closing, of the following conditions, one or
more of which may be waived by TCID:
6.2.1. Accuracy of Representations and Warranties. The
representations and warranties of Charter in this Agreement and in any
Transaction Documents, without giving effect to any materiality qualifications
contained therein, are true, complete and accurate on and as of the date hereof
and at and as of the Closing with the same effect as if made at and as of the
Closing, except to the extent that all misstatements, omissions and
inaccuracies, in the aggregate, do not have a material adverse effect on the
ability of Charter to perform its obligations under this Agreement.
6.2.2. Performance of Agreements. Charter will have performed in all
material respects all obligations and agreements and complied in all material
respects with all covenants in this Agreement and in any Transaction Document to
be performed and complied with by it at or before the Closing.
6.2.3. Deliveries. Charter will have delivered the Class B
Redemption Price and the Preferred Stock Liquidation Value in accordance with
Section 2.1, and the other items and documents required to be delivered by it
pursuant to this Agreement, including those required to be delivered to TCID
under Section 7.3.
6.2.4. Legal Proceedings. No Legal Requirement of any Governmental
Authority (including any temporary Legal Requirement) will be in effect which
would prevent or make illegal the consummation of any of the transactions
contemplated by this Agreement.
6.2.5. Consents. TCID will have received evidence, in form and
substance reasonably satisfactory to it, that the Charter Required Consents have
been obtained.
6.2.6. HSR Act. All filings required under the HSR Act will have
been made and the applicable waiting period will have expired or been earlier
terminated.
6.2.7. Related Closings. The transactions contemplated by the IP
Agreements and the Redemption Agreement (each as defined in the Common
Agreement) shall have been, or will be, consummated concurrently with this
Agreement as set forth in Section 4.4 of the Common Agreement, except to the
extent such Agreements are not consummated as a result of a breach by TCID or
its Affiliates of its or their obligation to consummate such transactions.
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7. THE CLOSING.
7.1. The Closing; Time and Place. Subject to the terms and conditions of
this Agreement, the Closing will be held at the same place and on the same day
as the closing under the IPWT Asset and Stock Purchase Agreement (the "Closing
Date").
7.2. TCID's Delivery Obligations. At the Closing, TCID will deliver or
cause to be delivered to Charter the following:
7.2.1. Stock Certificates. TCID will deliver the originals of all of
the stock certificates representing the TCID RMG Shares accompanied by stock
powers duly executed in blank or duly executed instruments of transfer, and all
other documents necessary to transfer to Charter title to the TCID RMG.
7.2.2. Evidence of Authorization. Certified corporate resolutions or
other evidence reasonably satisfactory to Charter that TCID has taken all action
necessary to authorize the execution of this Agreement and the Transaction
Documents and the consummation of the transactions contemplated hereby.
7.2.3. Officer's Certificate. Charter will have received a
certificate executed by an executive officer of TCID dated the date of the
Closing, reasonably satisfactory in form and substance to Charter certifying
that the conditions specified in Section 6.1.1 and 6.1.2 have been satisfied.
7.2.4. Opinion of Counsel. An opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.C.,
substantially in the form of Exhibit 7.2.4.
7.2.5. Other. Such other documents and instruments as may be
necessary to effect the intent of this Agreement and to consummate the
transactions contemplated hereby.
7.3. Charter's Delivery Obligations. At the Closing, Charter will deliver
or cause to be delivered to TCID the following:
7.3.1. Cash Consideration. The Class B Redemption Price and the
Preferred Stock Liquidation Value will be paid by Charter to TCID by wire
transfer in immediately available funds in accordance with Section 2.1.
7.3.2. Evidence of Authorization Actions. Certified resolutions of
the Board of Directors of Charter or other evidence reasonably satisfactory to
TCID that Charter has taken all action necessary to authorize the execution of
this Agreement and the Transaction Documents and the consummation of the
transactions contemplated hereby.
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7.3.3. Officer's Certificate. TCID will have received a certificate
executed by an executive officer of Charter dated the date of the Closing,
reasonably satisfactory in form and substance to TCID certifying that the
conditions specified in Sections 6.2.1 and 6.2.2 have been satisfied.
7.3.4. Opinion of Counsel. An opinion of Irell & ▇▇▇▇▇▇▇ LLP
substantially in the form of Exhibit 7.3.4.
7.3.5. Other. Such other documents and instruments as may be
necessary to effect the intent of this Agreement and to consummate the
transactions contemplated hereby.
8. TERMINATION AND DEFAULT.
8.1. Termination Events. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned:
8.1.1. At any time, by the mutual agreement of Charter and TCID;
8.1.2. By either Charter or TCID at any time, if the other is in
material breach or default of any of the other's covenants, agreements or other
obligations herein or in any Transaction Document;
8.1.3. By either Charter or TCID upon written notice to the other,
if any of the conditions to its obligations set forth in Sections 6.1 and 6.2,
respectively, are not satisfied on or before the later of January 15, 2000, or
nine months after the date of this Agreement, for any reason other than an
intentional and material breach or default by such Party of its respective
covenants, agreements or other obligations under this Agreement, or any of its
representations herein not being true and accurate in all material respects when
made or when otherwise required by this Agreement to be true and accurate in all
material respects;
8.1.4. By either Charter or TCID if an injunction, restraining order
or decree of any nature of any Governmental Authority of competent jurisdiction
is issued that prohibits the consummation of any of the transactions
contemplated hereby and such injunction, restraining order or decree is final
and nonappealable; provided, however, that the party seeking to terminate this
Agreement pursuant to this clause has used commercially reasonable efforts to
have such injunction, order or decree vacated or denied;
8.1.5. By either Charter or TCID, upon termination of the IPWT Asset
and Stock Purchase Agreement in accordance with its terms; or
8.1.6. As otherwise provided herein.
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8.2. Effect of Termination. If this Agreement is terminated pursuant to
Section 8.1, all obligations of the Parties under this Agreement will terminate,
except for the obligations set forth in Section 5.5 and Section 10.13.
Termination of this Agreement pursuant to Sections 8.1.2, 8.1.3, 8.1.4, 8.1.5 or
8.1.6 will not limit or impair any remedies that any of TCID or Charter may have
pursuant to the terms of this Agreement with respect to a breach or default by
the other of its covenants, agreements or obligations under this Agreement.
9. SURVIVAL; REMEDIES.
9.1. Survival of Representations, Warranties, Covenants and Agreements.
The representations, warranties, covenants and agreements of TCID and Charter in
this Agreement and in the Transaction Documents will survive Closing for a
period of twelve months after the Closing Date. The period of survival of the
representations, warranties, covenant or agreement prescribed by this Section
9.1 are referred to as the "Survival Period." The liabilities of each Party
under its respective representations, warranties, covenant or agreement, except
Sections 5.4 and 5.5, will expire as of the expiration of the Survival Period;
provided, however, that such expiration will not include, extend or apply to any
representation, warranty, covenant or agreement the breach of which has been
asserted by a Party in a written notice to the other Party before such
expiration or about which a Party has given the other Party written notice
before such expiration indicating that facts or conditions exist that, with the
passage of time or otherwise, can reasonably be expected to result in a breach
(and describing such potential breach in reasonable detail).
9.2. Exclusive Remedy. The Parties hereby agree that the rights set forth
in the Common Agreement will be each Party's sole and exclusive remedies against
the other Party for any claims arising after the Closing Time and relating to
any breaches of the representations, warranties or covenants contained in this
Agreement other than based on fraud.
10. MISCELLANEOUS PROVISIONS.
10.1. Parties Obligated and Benefitted. Subject to the limitations set
forth below, this Agreement will be binding upon each of the Parties and their
respective assigns and successors in interest and will inure solely to the
benefit of the Parties and their respective assigns and successors in interest,
and no other Person will be entitled to any of the benefits conferred by this
Agreement. Without the prior written consent of the other Parties, no Party will
assign any of its rights under this Agreement or delegate any of its duties
under this Agreement, except a Party may assign any or all of its rights under
this Agreement to an Affiliate, provided that such assignment will not result in
any adverse tax consequences to the other Party, will not give rise to any
material requirements for additional Required Consents, and will not, in the
reasonable judgment of the other Party, delay the Closing.
10.2. Notices. Any notice, request, demand, waiver or other communication
required or permitted to be given under this Agreement to either Party will be
in writing and will be deemed to
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have been duly given only if delivered in person or by first class, prepaid,
registered or certified mail, or sent by courier or, if receipt is confirmed, by
telecopier:
To TCID c/o:
Tele-Communications, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
with a copy (which will not constitute notice) to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
To Charter c/o:
Charter Communications
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with copies (which will not constitute notice) to:
Charter Communications
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.,
Senior Vice President & General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Irell & ▇▇▇▇▇▇▇ LLP
1800 Avenue of the Stars
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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Any Party may change the address to which notices are required to be sent by
giving notice of such change in the manner provided in this Section 10.2. All
notices will be deemed to have been received on the date of delivery, which in
the case of deliveries by telecopier will be the date of the sender's
confirmation.
10.3. Right to Specific Performance. Each Party acknowledges that the
unique nature of the transaction pursuant to this Agreement renders money
damages an inadequate remedy for the breach by either Party of its obligations
under this Agreement, and the Parties agree that in the event of such breach,
the Parties will upon proper action instituted by either of them, be entitled to
a decree of specific performance of this Agreement.
10.4. Waiver. This Agreement or any of its provisions may not be waived
except in writing. The failure of any Party to enforce any right arising under
this Agreement on one or more occasions will not operate as a waiver of that or
any other right on that or any other occasion.
10.5. Captions. The section and other captions of this Agreement are for
convenience only and do not constitute a part of this Agreement.
10.6. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Delaware (other than its rules of
conflicts of law to the extent that the application of the laws of another
jurisdiction would be required thereby).
10.7. Time. Time is of the essence under this Agreement. If the last day
permitted for the giving of any notice or the performance of any act required or
permitted under this Agreement falls on a day which is not a Business Day, the
time for the giving of such notice or the performance of such act will be
extended to the next succeeding Business Day.
10.8. Late Payments. If either Party fails to pay the other any amounts
when due under this Agreement, the amounts due will bear interest from the due
date to the date of payment at the Prime Rate plus 2%, adjusted as and when
changes in the Prime Rate are made.
10.9. Counterparts. This Agreement may be executed in counterparts, each
of which will be deemed an original.
10.10. Entire Agreement. This Agreement (including the Transaction
Documents and the Schedules referred to in this Agreement, which are
incorporated in and constitute a part of this Agreement) contains the entire
agreement of the Parties with respect to the subject matter hereof and
supersedes all prior oral or written agreements and understandings with respect
to such subject matter. This Agreement may not be amended or modified except by
a writing signed by each of the parties hereto.
10.11. Severability. Any term or provision of this Agreement which is
invalid or unenforceable will be ineffective to the extent of such invalidity or
unenforceability without
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rendering invalid or unenforceable the remaining rights of the Person intended
to be benefitted by such provision or any other provisions of this Agreement.
10.12. Construction. This Agreement has been negotiated by the Parties and
their respective legal counsel, and legal or other equitable principles that
might require the construction of this Agreement or any provision of this
Agreement against the Party drafting this Agreement will not apply in any
construction or interpretation of this Agreement.
10.13. Expenses. Except as otherwise expressly provided in this Agreement,
each Party will pay all of its expenses, including attorneys' and accountants'
fees, in connection with the negotiation of this Agreement, the performance of
its obligations and the consummation of the transactions contemplated by this
Agreement.
10.14. Commercially Reasonable Efforts. For purposes of this Agreement,
"commercially reasonable efforts" will not be deemed to require a Party to
undertake extraordinary or unreasonable measures, including the payment of
amounts in excess of normal and usual filing fees and processing fees, if any or
other payments with respect to any Contract that are significant in the context
of such Contract (or significant on the aggregate basis as to all Contracts).
[the remainder of this page intentionally left blank]
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The parties have executed this Stock Purchase Agreement as of the day and
year first above written.
CHARTER COMMUNICATIONS, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------------
Title: Vice President
TCID IP-V, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------
Title: Vice President
[Signature Page to Stock Purchase Agreement dated
as of April __, 1999 between TCID IP-V, Inc.
and Charter Communications, LLC]
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