EXHIBIT 99.6
LICENSE AGREEMENT
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LICENSE AGREEMENT (this "Agreement"), dated as of September 28, 2001,
among High Speed Access Corp. and HSA International, Inc., both Delaware
corporations (together, "HSA"), and Charter Communications Holding Company, LLC,
a Delaware limited liability company ("Holdco").
RECITALS
WHEREAS, High Speed Access Corp. and Holdco have entered into an Asset
Purchase Agreement dated as of September 28, 2001 (as the same may be amended
from time to time, the "Purchase Agreement");
WHEREAS, High Speed Access Corp. owns, licenses or has other valid
rights, title and interest in and to the CMB Intellectual Property; and
WHEREAS, pursuant to the Purchase Agreement, Holdco or one or more of
its Affiliates has agreed to purchase the CMB Intellectual Property and the
Technology and Know-How, and to grant to HSA a non-exclusive license to use the
Software Tools and International Intellectual Property Rights (both as defined
herein) in its conduct of the Retained Businesses (as defined below) on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt of which is hereby acknowledged, HSA and
Holdco agree as follows:
ARTICLE I
DEFINITIONS
Except as otherwise set forth herein, capitalized terms used in this
Agreement shall have the meanings ascribed to them in the Purchase Agreement.
For purposes of this Agreement, the following capitalized terms shall have the
meanings set forth below:
"Confidential Information" means, with respect to a party hereto, any
trade secrets and any non-public, confidential or proprietary information
relating to that party or its business, that is owned, developed or possessed by
that party, whether in tangible or intangible form, pertaining to that party
including, but not limited to, research and development, operations systems,
databases, computer programs and software, designs, models, operating
procedures, knowledge of the organization, products (including prices, costs,
sales and content), processes, techniques, machinery, contracts, financial
information or measures, business methods, future business plans, customers
(including the identities of customers and prospective customers, identities of
individual contacts at business entities that are customers or prospective
customers, preferences, businesses or habits) and business relationships,
records, papers, reports or any other document or material whatsoever which
includes, reflects or is based upon the foregoing confidential information or
trade secrets.
"Domestic" shall mean entirely within the United States.
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"Domestic Software Tools License" means a non-exclusive royalty-free,
non-transferable and non-sublicensable Domestic license in the Software Tools,
limited in duration to the earlier of (i) such date as HSA has ceased its
Domestic ISP and web-hosting activities and (ii) June 30, 2002.
"International Intellectual Property Rights" means copies of technical
design, configuration, testing and operations documents from the CMB
Intellectual Property and Technology and Know-How used by HSA before Closing in
its Non-Domestic consulting and Internet service provisioning business
activities (i.e., those related to the design, deployment and operation of ISP
services, including, but not limited to, NOC design and configuration
documentation, head-end design and deployment documentation, cable modem testing
and field management practices documentation, HSA software applications
architecture, design, test and support documentation).
"International Software Tools License" means a non-exclusive
royalty-free, three-year, non-sublicensable and non-transferable, Non-Domestic
license in the Software Tools and International Intellectual Property Rights.
"Licensed Rights" shall mean those rights arising out of the Domestic
Software Tools License and the International Software Tools License.
"Non-Domestic" shall mean entirely outside the United States.
"Retained Domestic Business" means HSA's continued, post-Closing
operation of its Domestic web-hosting business/subsidiary and broadband ISP
business to facilitate the operation and winding-down of HSA's Domestic ISP and
web-hosting businesses, including without limitation transfer or shut down of
any independent operator systems, accounting reconciliation and asset management
unrelated to Holdco or its Affiliates.
"Retained International Business" means HSA's Non-Domestic consulting
and Internet service provisioning business activities.
"Software Tools" means copies of the HSA-created aspects and software
source and object code for the following applications: Web DT, FRED, Remedy
customizations, USAT (User Security Admin Tool a/k/a "security layer"), Work
Force Management, Corba middleware and its associated adapters, provisioning
related applications, Cable Modem Provisioning Tool (CMPT), Cable Modem S Tool
(CMST), Werewolf, Customer Database Application (CDB), Portal Web Interface
(PWI), Portal Infranet Customizations, Data Clean Up tools, Business Unit
Emailer (BU Emailer), Time Keeper, Customer Self-registration tool, SeaGate Info
CMB reports, Market Database application, DST Interface and LDBypass. The
Software Tools excludes (i) any third party commercially licensed software (such
as Oracle's RDBMS, Remedy ARS, Click Software's Click Schedule, SeaGate Info
(the application itself), Iona's Orbix, Cisco CNR, Group 1's Doc1 and Code1,
DST's HsDs simulator, Boardtown's Platypus licenses, HP OpenView and Cisco Cable
Manager) used as a foundation or key element in the Software Tools, (ii) any and
all hardware or server platforms and IP Blocks included in the CMB Intellectual
Property and running the Software Tools and (iii) any enhancements, supports or
subsequent releases of such Software Tools that would infringe upon Holdco
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resources, except as mutually agreed by HSA and Holdco for the sole purpose of
supporting HSA's Domestic windup activities.
ARTICLE II
LICENSES
2.1 License to HSA. Holdco hereby grants to HSA, for the term stated in
Article VII, (i) a Domestic Software Tools License for use in the winding down
of the Retained Domestic Business, and (ii) an International Software Tools
License for use in the operation of the Retained International Business.
2.2 Prohibition on Competition. HSA acknowledges and agrees that it is
prohibited from using the Domestic Software Tools License or International
Software Tools License, or any Intellectual Property rights related thereto, in
any manner that competes with the business of Holdco or its Affiliates.
2.3 Reservation of Rights. All rights not expressly granted by the
parties hereunder are reserved to the parties. Without limiting the generality
of the foregoing, the parties expressly acknowledge that (i) nothing contained
herein shall be construed or interpreted as a grant, by implication or
otherwise, of any licenses other than the licenses specified in Section 2.1 and
(ii) no party shall be authorized to use the name, trademark, service mark, logo
or other designation of any other party hereto without such party's prior
written consent.
ARTICLE III
LIMITATION OF LIABILITY
HOLDCO MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EITHER EXPRESS
OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR
ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES
WHATSOEVER, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS PROFITS,
BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE, ARISING OUT
OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE LICENSED RIGHTS OR ANY
DERIVATIVE WORKS THEREOF, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
ARTICLE IV
INDEMNIFICATION
HSA agrees to defend, indemnify and hold Holdco and its officers,
directors, agents and employees harmless against all costs, expenses, damages
and losses (including reasonable attorneys' fees and costs) incurred through
claims of third parties against Holdco based on or arising out of HSA's use of
the Licensed Rights.
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ARTICLE V
PROTECTION AND ENFORCEMENT
HSA shall cooperate with Holdco at Holdco's cost and expense in the
filing, prosecution, maintenance and other attempts to protect the CMB
Intellectual Property including without limitation by executing those documents
as Holdco may reasonably require from time to time to ensure that all right,
title and interest in and to the CMB Intellectual Property continues to reside
with Holdco. Holdco shall cooperate with HSA at HSA's cost and expense regarding
International Intellectual Property Rights documentation to enable HSA to pursue
consulting and service provisioning business activities internationally as
described herein; provided that such documentation and use shall be restricted
to HSA International, Inc.'s use only for Non-Domestic business operations.
ARTICLE VI
QUALITY STANDARDS; APPLICABLE LAWS; PROPRIETARY RIGHTS
6.1 Quality Standards. HSA acknowledges and agrees that HSA shall be
entitled to use the Domestic Software Tools License and International Software
Tools License only in connection with the Retained Domestic Business and
Retained International Business, respectively, and that such use of the Licensed
Rights shall be of a nature and quality consistent with the services generally
rendered by HSA on or before the Closing.
6.2 Applicable Laws. HSA agrees that the services rendered under or in
connection with the Licensed Rights shall be marketed and provided in accordance
with all applicable laws. HSA shall fully comply with the marking provisions of
the intellectual property laws of each applicable jurisdiction in the applicable
territory and such additional marking requirements as Holdco shall from time to
time specify in writing.
6.3 Proprietary Rights. HSA acknowledges and agrees that, subject to
the express Licensed Rights granted herein, Holdco is the sole and exclusive
owner of all right, title and interest in, to or in connection with the Software
Tools and International Intellectual Property Rights and all portions and copies
thereof. HSA agrees that it will not assert any claim of ownership or
entitlement to (i) any rights licensed as Software Tools or International
Intellectual Property Rights or (ii) any claim of ownership to any other
Intellectual Property or rights related thereto. In addition, Holdco shall have
sole and exclusive ownership of any corrections, enhancements and updates
provided to, or created by, HSA for the Software Tools and International
Intellectual Property Rights. If title to any work derived from or in any way
related to the Software Tools or International Intellectual Property Rights does
not, by operation of law, vest in Holdco, HSA hereby assigns to Holdco, or its
designee, all right, title and interest in and to such works.
6.4 Non-Disturbance. HSA acknowledges and agrees that it shall not do
anything to impair Holdco's ability to fully utilize and operate the Cable Modem
Business without restriction.
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ARTICLE VII
TERM AND TERMINATION
7.1 Term. This Agreement shall be of no force or effect until the
Closing under the Purchase Agreement and shall (i) with respect to the Domestic
Software Tools License, continue until such date as HSA has ceased its Domestic
ISP and web-hosting business activities, but in no event longer than June 30,
2002, and (ii) with respect to the International Software Tools License,
continue for 3 years from the Closing Date.
7.2 Termination. Holdco may terminate this Agreement immediately upon
written notice to HSA in the event that:
(a) HSA attempts to use, sublicense, subcontract, assign or
convey any rights granted herein in any manner contrary to the terms of this
Agreement, or take any other action inconsistent with or in derogation of
Holdco's exclusive and proprietary rights in any of the intellectual property
subject to this Agreement;
(b) HSA engages in any activity which infringes on or dilutes
any of the CMB Intellectual Property rights; or
(c) HSA commits a material breach of any term, covenant or
condition of this Agreement, unless said breach is cured to the reasonable
satisfaction of Holdco within ten (10) days after receipt by HSA of notice and a
description of the breach.
In addition, the Agreement shall immediately terminate if HSA
files a voluntary petition under the United States Bankruptcy Code or the
insolvency laws or any similar statute, law, rule or regulation of any country,
territory, province or state; or has an involuntary petition filed against it
under any such law, or a receiver appointed for its business, unless such
petition or appointment of a receiver is dismissed within thirty (30) days.
7.3 Consequences of Expiration or Termination. Upon expiration
or termination of this Agreement for any reason, (a) HSA shall immediately cease
its use of the Domestic Software Tools License, the International Software Tools
License and all Intellectual Property rights related thereto and (b) HSA shall
promptly return to Holdco all tangible and electronic manifestations of the
Licensed Rights.
7.4 Remedies. In the event of any breach of this Agreement,
the non-breaching party may bring any action against the breaching party and may
seek any and all relief and remedies, including damages, injunctive relief and
other equitable relief.
ARTICLE VIII
CONFIDENTIALITY
8.1 Confidential Information. Each party shall maintain in confidence
all Confidential Information disclosed to it by the other party in connection
with performing its obligations hereunder. The receiving party shall not
disclose or make available to any third party or use such Confidential
Information except for disclosure to such party's employees, vendors,
contractors, subsidiaries and representatives and use only to the extent
necessary to enable such party to exercise its rights hereunder or as otherwise
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expressly authorized by this Agreement. The receiving party will use at least
the same standard of care as it uses to protect its own most confidential
information, which in no event shall be less than reasonable care, and will take
reasonable steps to ensure that its employees, agents or consultants do not
disclose or make any unauthorized use of such Confidential Information. The
receiving party will promptly notify the disclosing party upon discovery of any
unauthorized use or disclosure of the Confidential Information of the disclosing
party. With respect to all information exchanged after the Closing and within a
reasonable time after disclosure, such information must be marked with an
appropriate proprietary legend or identified as proprietary in order to be
protected as Confidential Information hereunder unless the confidential nature
of the Confidential Information is otherwise readily apparent.
8.2 Exceptions. The obligations of confidentiality contained in Section
8.1 will not apply to the extent that it can be established by the receiving
party that such Confidential Information:
(a) was already known to the receiving party, other than under
an obligation of confidentiality, at the time of disclosure by the disclosing
party; provided that this subparagraph (a) shall not apply to excuse HSA from
its obligation of confidentiality with respect to otherwise Confidential
Information included in the Licensed Rights;
(b) was generally available to the public or otherwise part of
the public domain at the time of its disclosure to the receiving party;
(c) became generally available to the public or otherwise part
of the public domain after its disclosure and other than through any act or
omission of the receiving party in breach of this Agreement;
(d) was disclosed to the receiving party, other than under an
obligation of confidentiality, by a third party who had no obligation to the
disclosing party not to disclose such information to others.
8.3 No Derogation of Licensed Rights. Nothing herein or in any other
agreement between the parties shall prohibit HSA from using Confidential
Information of Holdco to the extent permitted by this Agreement or from
disclosing Confidential Information of Holdco to the extent reasonably necessary
in connection with the exercise of any of the Licensed Rights; provided that any
recipient of Confidential Information in such manner is bound by an obligation
of confidentiality with respect to such Confidential Information.
ARTICLE IX
ASSIGNMENT AND TRANSFER
9.1 Subject to the provisions of this Article IX, neither this
Agreement nor any of the rights, interests, obligations or privileges hereunder
(including, without limitation, the licenses granted by Holdco hereunder) may be
assigned, sold, transferred, shared or encumbered, by operation of law or
otherwise, by HSA without the prior written consent of Holdco (it being further
understood that, unless otherwise agreed in writing, no such assignment shall
release HSA from any of its obligations or liabilities hereunder). An assignment
or transfer requiring the prior written consent of Holdco shall be deemed to
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occur upon any merger of HSA with or into any third party, any sale or transfer
of twenty-five percent (25%) or more of any one class of stock, or any series of
mergers, sales or transfers totaling in the aggregate twenty-five percent (25%)
or more of any one class of stock, in HSA, except in the case of stock sales
among existing shareholders in connection with any of the foregoing. If Holdco
consents to any such assignment or transfer, Holdco agrees to engage in good
faith negotiations with respect to a reasonable transfer or license fee for its
requested consent to such assignment and/or renewal of the International
Software Tools License. Subject to the foregoing, this Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns.
9.2 Upon expiration of the International Software Tools License or a
merger, acquisition or divestiture with or to a purchaser of substantially all
of the assets of the Retained International Business that is not a competitor of
Holdco or its Affiliates and if Holdco consents to a renewal of the license or
to the transaction, Holdco agrees to engage in good faith negotiations with
respect to a commercially reasonable license renewal or transfer fee for such
consent to renewal or transfer of the International Software Tools License,
provided that HSA shall not be required to pay license fees on enhancements it
may have created or derived from the International Intellectual Property Rights.
9.3 Holdco shall not, directly or indirectly, sell, transfer, assign,
pledge, encumber, give, place in trust, or otherwise voluntarily or
involuntarily dispose of any or all of the Software Tools, other than to a
Person who agrees to be bound in writing by the terms of this Agreement (it
being understood that, unless otherwise agreed in writing, no such assignment
shall release Holdco from any of its obligations or liabilities hereunder).
9.4 Any attempted assignment in violation of the provisions hereof
shall be void ab initio and the assignee shall obtain no rights by reason
thereof.
9.5 Subject to the provisions of this Article X, this Agreement shall
be binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors and permitted assigns.
ARTICLE X
MISCELLANEOUS
10.1 Notices. All notices or other communications hereunder shall be in
writing, signed by the party providing such notice, and shall be considered
properly given or made and shall be deemed to have been duly given on the date
of delivery, when delivered personally or transmitted and received by
telecopier/facsimile transmitter, receipt acknowledged or confirmed during
normal business hours, or in the case of registered or certified mail, return
receipt requested, postage prepaid, on the date shown on such return receipt.
Any notices to HSA shall be sent as follows (or to such other address
as HSA may specify in writing to Holdco):
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High Speed Access Corp.
10901 West Toller Drive
Littleton, CO 80127
Attention: Daniel J. O'Brien
Telecopy No.: (720) 922-2805
with a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153
Attention: Howard Chatzinoff, Esq.
Telecopy No.: (212) 310-8007
Any notices to Holdco shall be sent as follows (or to such other
address as Holdco may specify in writing to HSA):
Charter Communications Holding Company, LLC
12405 Powerscourt Drive
St. Louis, MO 63131
Attention: Curtis S. Shaw
Senior Vice President, General Counsel
and Secretary
Telecopy No.: (314) 965-8793
with a copy to:
Paul, Hastings, Janofsky & Walker LLP
399 Park Avenue
New York, NY 10022
Attention: John Turitzin, Esq.
Telecopy No.: (212) 319-4090
10.2 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York regardless of the laws that
might otherwise govern under principles of conflicts of laws applicable thereto.
10.3 Relationship of the Parties. Neither party shall have any power or
express or implied right or authority to assume or create any obligations on
behalf of or in the name of the other party or to bind the other party in any
manner whatsoever, including to any other contract, agreement or undertaking
with any third party.
10.4 Severability. The parties agree that each of the provisions
included in this Agreement is separate, distinct, and severable from the other
and remaining provisions of this Agreement, and that the invalidity or
unenforceability of any Agreement provision shall not affect the validity or
enforceability of any other provision or provisions of this Agreement. Further,
if any provision of this Agreement is ruled invalid or unenforceable by a court
of competent jurisdiction because of a conflict between such provision any
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applicable law or public policy, such provision shall be valid and enforceable
to the extent such provision is consistent with such law or public policy.
10.5 Consent. When in this Agreement the consent or approval of any
party is required with respect to any action of any other party, such consent
may be withheld in the sole and absolute discretion of the party whose consent
is so required unless otherwise expressly provided herein.
10.6 Entire Agreement; Amendments. This Agreement constitutes the
entire agreement of the parties and supersedes all other pre-existing
agreements, with respect to the matters expressly provided for in this
Agreement. This Agreement may be amended or modified only by mutual agreement in
writing signed by authorized representatives of both parties.
10.7 Remedies Cumulative. The rights and remedies of the parties hereto
set forth in this Agreement shall, subject to the provisions hereof, be
cumulative and nonexclusive of any other rights and remedies which either party
may have pursuant to any other agreement, by operation of law, or otherwise.
10.8 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original.
10.9 Descriptive Headings. The section and clause headings in this
Agreement are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
10.10 License Agreement Controls. If any terms of this Agreement
conflict with terms in the Purchase Agreement, the terms of this Agreement shall
govern with respect to the resolution of such conflict.
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IN WITNESS WHEREOF, HSA and Holdco have each caused this Agreement to
be duly signed and delivered to the other party as of the date first written
above.
HIGH SPEED ACCESS CORP.
By: /s/ Daniel J. O'Brien
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Name: Daniel J. O'Brien
Title: President & CEO
HSA INTERNATIONAL, INC.
By: /s/ John G. Hundley
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Name: John G. Hundley
Title: Director, Secretary
CHARTER COMMUNICATIONS HOLDING COMPANY, LLC
By: /s/ Curtis S. Shaw
----------------------------------------
Name: Curtis S. Shaw
Title: Senior Vice President, General Counsel and
Secretary
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