Exhibit (d)(3)
EXECUTION COPY
STOCK PURCHASE AGREEMENT
by and between
VULCAN VENTURES INCORPORATED
and
CHARTER COMMUNICATIONS HOLDING COMPANY, LLC
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Dated as of September 28, 2001
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EXECUTION COPY
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement") is made as of
September 28, 2001 by and between VULCAN VENTURES INCORPORATED, a corporation
organized under the laws of the State of Washington ("Seller") and CHARTER
COMMUNICATIONS HOLDING COMPANY, LLC, a limited liability company organized under
the laws of the State of Delaware ("Purchaser").
RECITALS:
WHEREAS, Seller is the beneficial and record holder of 38,000 shares
(the "HSA Shares") of Series D Senior Convertible Preferred Stock, $.01 par
value (the "Preferred Stock") of High Speed Access Corp., a Delaware corporation
("HSA"), which represents all of the Preferred Stock owned by Seller;
WHEREAS, Seller is a party to that certain Programming Content
Agreement (the "Programming Agreement") dated as of November 25, 1998 by and
between Seller and HSA;
WHEREAS, Seller is party to that certain Systems Access and Access
Agreement (the "Access Agreement") dated as of November 25, 1998 by and among
Seller, HSA, Purchaser and Marcus Cable, Inc.;
WHEREAS, Purchaser and HSA have entered into an Asset Purchase
Agreement dated as of September 28, 2001 (as the same may be amended from time
to time, the "Asset Purchase Agreement") that provides for the acquisition by
Purchaser of certain of the assets of HSA used to provide broadband Internet
access over cable and related services to residential and commercial customers
of Purchaser and its Affiliates;
WHEREAS, Seller agrees to waive certain rights under the Programming
Agreement and Access Agreement and to sell to Purchaser, and Purchaser agrees to
purchase from Seller, upon the closing of the transactions contemplated by the
Asset Purchase Agreement, the HSA Shares on the terms and conditions hereinafter
provided;
NOW, THEREFORE, in reliance upon the representations and warranties
made herein and in consideration of the mutual agreements herein contained, the
parties agree as follows:
Article I.
TRANSFER OF SHARES AND WAIVER OF RIGHTS
Section 1.01. Sale and Transfer of HSA Shares. At the Closing provided
for in Section 2.01, Seller shall sell the HSA Shares to Purchaser and Purchaser
shall purchase the HSA Shares from Seller.
Section 1.02. Waiver of Rights under the Programming Agreement and
Access Agreement. The parties acknowledge that the Full Turnkey Agreement and
the Second NSA Agreement (as such terms are defined in the Asset Purchase
Agreement) will terminate upon the closing of the transactions contemplated by
the Asset Purchase Agreement (the "Asset Purchase Closing"). The parties further
acknowledge and agree that the Programming Agreement and Access Agreement will
terminate concurrently with the termination of the Full Turnkey Agreement and
the Second NSA Agreement at the Asset Purchase Closing. Effective upon the
Closing (as such term is defined below), Seller irrevocably and unconditionally
waives any and all of its rights to delay, contest or set aside the termination
of either of the Programming Agreement or Access Agreement or seek damages from
Purchaser in connection with or as a result of the termination of either of such
agreements, whether arising under the terms of either such agreements, common
law, equitable principals or otherwise.
Section 1.03. Consideration; Payment. (a) Consideration. The
consideration for the purchase and sale of the HSA Shares described in Section
1.01 above and the waiver of rights described in Section 1.02 above is Eight
Million United States Dollars ($8,000,000).
(b) Payment of Consideration. At the Closing Purchaser shall
deliver to Seller the amount of Eight Million United States Dollars ($8,000,000)
in immediately available funds by wire transfer to Seller's bank account to be
identified in writing by Seller to Purchaser at least two business days prior to
the Closing.
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Article II.
CLOSING AND TERMINATION
Section 2.01. Closing; Deliveries. The closing of the transactions
provided for herein (the "Closing") shall occur at the offices of Paul,
Hastings, Janofsky & Walker LLP, at 10:00 a.m. (New York City local time)
immediately prior to the Asset Purchase Closing (the "Closing Date") or at such
other place, time and date as may be agreed upon by Purchaser and Seller. At the
Closing, (i) Seller shall deliver to Purchaser the HSA Shares set forth in
Section 1.01 together with duly executed stock powers, and (ii) Purchaser shall
deliver the consideration set forth in Section 1.03.
Article III.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser that:
Section 3.01. Authority. Seller has full corporate power and authority
to enter into this Agreement and to consummate the transactions contemplated
hereby. The execution, delivery and performance by Seller of this Agreement has
been duly authorized by all requisite corporate action and is a valid and
binding obligation of Seller, enforceable in accordance with its terms, except
as such enforceability may be limited by bankruptcy, insolvency, reorganization
or similar laws or judicial principals affecting creditors' rights generally or
by general equitable principles.
Section 3.02. Organization. Seller is a corporation duly organized and
validly existing and in good standing under the laws of the State
of Washington.
Section 3.03. Ownership of HSA Shares. Seller is the lawful record and
beneficial owner of the HSA Shares. The Seller owns the HSA Shares free and
clear of all pledges, liens, charges, encumbrances, security interests and
options (collectively, the "Encumbrances"), except for restrictions on transfer
under Federal and state securities laws. Upon the delivery of the HSA Shares ,
together with duly executed stock powers, Purchaser will acquire all of Seller's
right, title and interest in and to such HSA Shares, free and clear of all
Encumbrances except for restrictions on transfer under federal and state
securities laws and any Encumbrances arising through Purchaser. The HSA Shares
represent, as of the date hereof, all of the Preferred Stock owned by the
Seller.
Section 3.04. No Violation. Seller is not subject to or bound by any
provision of any law, statute, rule, regulation, judgment, agreement, license or
other instrument which would prevent it from consummating the transactions
contemplated by this Agreement.
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Article IV.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller that:
Section 4.01. Authority. Purchaser has the full corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance by Purchaser of
this Agreement has been duly authorized by all requisite corporate action and is
a valid and binding obligation of Purchaser, enforceable in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws or judicial principals affecting creditors rights
generally or by general equitable principles.
Section 4.02. Organization. Purchaser is a limited liability company
duly organized and validly existing and in good standing under the
laws of the State of Delaware.
Section 4.03. No Violation. Purchaser is not subject to or bound by
any provision of any law, statute, rule, regulation, judgment, agreement,
license or other instrument which would prevent it from consummating the
transactions contemplated by this Agreement.
Section 4.04. Accredited Investor. Purchaser is an "accredited
investor" (as defined in Regulation D promulgated under the Securities Act of
1933, as amended), and is acquiring the HSA Shares for its own account and not
with a view to a distribution in violation of such Act.
Article V.
CLOSING CONDITIONS OF PURCHASER
Purchaser shall not be required to consummate the transactions
contemplated by this Agreement unless the following conditions shall be
fulfilled:
Section 5.01. Representations and Warranties. Except as otherwise
contemplated or permitted by this Agreement, (a) the representations and
warranties of Seller contained in this Agreement shall be true and correct in
all material respects on the date hereof and as of the Closing Date and (b)
Seller shall have performed and complied in all material respects with all
agreements and conditions required by this Agreement to be performed or complied
with by Seller prior to or on the Closing Date.
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Section 5.02. Asset Purchase Consummated. The transactions
contemplated by the Asset Purchase Agreement shall have been consummated.
Article VI.
CONDITIONS PRECEDENT OF SELLER
Seller shall not be required to consummate the transactions
contemplated hereby unless the following conditions shall be fulfilled:
Section 6.01. Representations and Warranties. Except as otherwise
contemplated or permitted by this Agreement, (a) the representations and
warranties of Purchaser contained in this Agreement shall be true and correct in
all material respects as of the date hereof and as of the Closing Date and shall
then be true in all respects, and (b) Purchaser shall have performed and
complied in all material respects with all agreements and conditions required by
this Agreement to be performed or complied either of them prior to or on the
Closing Date.
Section 6.02. Asset Purchase Consummated. The transactions
contemplated by the Asset Purchase Agreement shall have been consummated.
Article VII.
SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 7.01. Representations, Warranties and Covenants. The
representations, warranties and covenants contained in this Agreement shall
survive the Closing Date without limitation.
Article VIII.
MISCELLANEOUS
Section 8.01. Notices. All notices, requests, consents and other
communications hereunder shall be in writing, shall be mailed by first-class
registered or certified airmail, return receipt requested, or nationally
recognized overnight express courier postage prepaid, or by facsimile
transmission and shall be deemed given when received (or upon facsimile
confirmation) and shall be delivered as follows:
if to Seller, to:
Vulcan Ventures Incorporated
505 Fifth Avenue South, Suite 900
Seattle, WA 98104
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Attention: William D. Savoy
Facsimile: (425) 453-1985
with a copy so mailed to:
Irell & Manella LLP
1800 Avenue of the Stars, Suite 900
Los Angeles, CA 90067
Attention: Alvin G. Segel, Esq.
Facsimile: (310) 203-7199
if to Purchaser, to:
Charter Communications Holding Company, LLC
12405 Powerscourt Drive
St. Louis, MO 63131
Attention: Curtis S. Shaw, Esq.
Facsimile: (314) 965-8793
with a copy so mailed to:
Paul, Hastings, Janofsky & Walker, LLP
399 Park Avenue
New York, NY 100222
Attention: John N. Turitzin, Esq.
Facsimile: (212) 319-4090
Section 8.02. Assignability and Enforceability. This Agreement shall
be binding on and enforceable by the parties and their respective successors and
permitted assigns. No party may assign any of its rights, benefits or
obligations under this Agreement to any person or entity without the prior
written consent of the other party.
Section 8.03. Amendments and Waivers. No amendment or waiver of any
provision of this Agreement shall be binding on any party unless consented to in
writing by such party. No waiver of any provision of this Agreement shall be
construed as a waiver of any other provision nor shall any waiver constitute a
continuing waiver unless otherwise expressly provided. No provision of this
Agreement shall be deemed waived by a course of conduct including the act of
Closing unless such waiver is in writing signed by all parties and stating
specifically that it was intended to modify this Agreement.
Section 8.04. Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all
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prior agreements, understandings, negotiations and discussions, whether written
or oral. There are no conditions, covenants, agreements, representations,
warranties or other provisions, express or implied, collateral, statutory or
otherwise, relating to the subject matter hereof except as herein provided.
Section 8.05. Headings. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and
shall not be deemed to be part of this Agreement.
Section 8.06. Severability. If any provision of this Agreement is held
to be illegal, invalid or unenforceable, such provision shall be fully
severable, this Agreement shall be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part of this Agreement,
the remaining provisions of this Agreement shall remain in full force and
effect, and, in place of such illegal, invalid or unenforceable provision, there
shall be automatically added as a part of this Agreement a provision as similar
to such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
Section 8.07. Further Assurances. Seller agrees to execute an
instrument in writing acknowledging the cancellation of any rights to dividends
with respect to the HSA Shares, whether such dividends are payable before, on or
after the Closing Date in form and substance reasonably satisfactory to HSA, to
be delivered upon the closing of the transactions contemplated by the Asset
Purchase Agreement.
Section 8.08. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, except as to
matters which are subject to the Delaware General Corporation Law, which shall
be governed by such law, in each case without regard to the choice of law
provisions thereof.
Section 8.09. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original, but all of which,
when taken together, shall constitute but one instrument, and shall become
effective when one or more counterparts have been signed by each party hereto
and delivered to the other parties.
Section 8.10. Termination. This Agreement shall automatically
terminate if the Asset Purchase Agreement is terminated.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Stock Purchase
Agreement to be executed by their duly authorized representatives as of the day
and year first above written.
VULCAN VENTURES INCORPORATED
By: /s/WILLIAM D. SAVOY
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Name: William D. Savoy
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Title: Vice President
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CHARTER COMMUNICATIONS
HOLDING COMPANY, LLC
By: /s/CURTIS S. SHAW
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Name: Curtis S. Shaw
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Title: Senior Vice President, General
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Counsel & Secretary
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