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EXHIBIT 2.3
STOCK PURCHASE AGREEMENT
Between
InterMedia Capital Management V, L.P.,
and
InterMedia Partners IV, L.P.
Dated as of
July 26, 1996
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS......................................... 1
Section 1.1 Certain Defined Terms............................... 1
ARTICLE II PURCHASE AND SALE................................... 2
Section 2.1 Purchase and Sale of the Shares..................... 2
Section 2.2 Purchase Price...................................... 2
Section 2.3 Closing............................................. 2
ARTICLE III REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF
SELLER.............................................. 2
Section 3.1 Organization and Authority of Seller and RMHI....... 3
Section 3.2 Capital Structure................................... 3
Section 3.3 Equity Investments.................................. 4
Section 3.4 Ownership........................................... 4
Section 3.5 No Conflict......................................... 4
Section 3.6 Absence of Litigation............................... 4
Section 3.7 Brokers............................................. 5
Section 3.8 Debt................................................ 5
Section 3.9 Undisclosed Liabilities............................. 5
ARTICLE IV REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF
PURCHASER........................................... 5
Section 4.1 Organization and Authority of Purchaser............. 5
Section 4.2 No Conflict......................................... 5
Section 4.3 Absence of Litigation............................... 6
Section 4.4 Brokers............................................. 6
ARTICLE V ADDITIONAL AGREEMENTS............................... 6
Section 5.1 Further Action...................................... 6
Section 5.2 No Other Representations or Warranties.............. 6
ARTICLE VI CONDITIONS TO CLOSING............................... 7
Section 6.1 Conditions to Obligations of Seller................. 7
Section 6.2 Conditions to Obligations of Purchaser.............. 8
ARTICLE VII TERMINATION AND WAIVER.............................. 8
Section 7.1 Termination......................................... 8
Section 7.2 Effect of Termination............................... 9
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Section 7.3 Waiver.............................................. 9
ARTICLE VIII GENERAL PROVISIONS.................................. 9
Section 8.1 Survival............................................ 10
Section 8.2 Expenses............................................ 10
Section 8.3 Notices............................................. 10
Section 8.4 Public Announcements................................ 11
Section 8.5 Headings............................................ 11
Section 8.6 Severability........................................ 11
Section 8.7 Entire Agreement.................................... 11
Section 8.8 Assignment.......................................... 11
Section 8.9 No Third Party Beneficiaries........................ 11
Section 8.10 Amendment........................................... 12
Section 8.11 Governing Law....................................... 12
Section 8.12 Specific Performance................................ 12
Section 8.13 Counterparts........................................ 12
Section 8.14 Knowledge........................................... 12
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PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), is dated as of July
26, 1996 and is by and between INTERMEDIA PARTNERS IV, L.P., a California
limited partnership ("Purchaser") and INTERMEDIA CAPITAL MANAGEMENT V, L.P., a
California limited partnership ("Seller"),
W I T N E S S E T H:
WHEREAS, Seller owns all of the issued outstanding shares of Class A
Common Stock of Robin Media Holdings, Inc., a Nevada corporation ("RMHI"), which
is the owner of all of the outstanding stock of Robin Media Group, Inc. ("RMG")
(the "Shares"); and
WHEREAS, Seller wishes to sell and assign to Purchaser, and Purchaser
wishes to purchase and assume from Seller, the Shares;
NOW, THEREFORE, Purchaser and Seller hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
"Action" means any claim, action, suit, arbitration, inquiry,
proceeding or investigation by or before any Governmental Authority.
"Business Day" means any day which is not a Saturday or Sunday or which
in New York, New York and San Francisco, California is neither a legal holiday
nor a day on which banking institutions are authorized by law or regulation to
close.
"Closing" has the meaning specified in Section 2.3(a).
"Closing Date" has the meaning specified in Section 2.3(a).
"Governmental Authority" means any United States, federal, state or
local governmental, regulatory or administrative
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authority, agency or commission, or any court, tribunal, or judicial or arbitral
body.
"Governmental Order" means any order, writ, judgment, injunction,
decree, stipulation, determination or award entered by or with any Governmental
Authority.
"Law" means any federal, state, local or foreign statute, law,
ordinance, regulation, rule, code, order, requirement or rule of common law.
"Person" means any individual, partnership, firm, corporation,
association, trust, unincorporated organization or other entity, as well as any
syndicate or group that would be deemed to be a person under section 13(d)(3) of
the Securities Exchange Act of 1934, as amended.
"Purchase Price" has the meaning specified in Section 2.2 of this
Agreement.
ARTICLE II
PURCHASE AND SALE
Section 2.1 Purchase and Sale of the Shares. Upon the terms and subject
to the conditions contained in this Agreement, at the Closing, Seller shall sell
and assign to Purchaser, and Purchaser shall purchase from Seller, the Shares.
Section 2.2 Purchase Price. Purchaser will pay to Seller for the Shares
the purchase price of three hundred twenty-eight thousand dollars ($328,000) in
cash (the "Purchase Price").
Section 2.3 Closing. (a) Subject to the terms and conditions of this
Agreement, the purchase and sale of the Shares contemplated by this Agreement
shall take place at a closing (the "Closing") to be held at the offices of
Pillsbury Madison & Sutro LLP, 235 Montgomery Street, San Francisco, California,
at 10:00 a.m. local time, on or before July __, 1996, following the satisfaction
of the conditions set forth in Article hereof, or at such other place and time
or on such other date as the parties may agree (such date to be referred to as
the "Closing Date").
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(b) At the Closing, Purchaser shall deliver to Seller (i) the Purchase
Price by wire transfer in immediately available federal funds to a bank account
to be designated by Seller and (ii) such instruments and documents of assumption
of the Shares and all obligations whatsoever relating thereto as Seller may
reasonably require to effectuate such assumption.
(c) At the Closing Seller shall deliver to Purchaser such instruments
and documents of assignment of the Shares as Purchaser may reasonably require to
effectuate such assignment.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND
AGREEMENTS OF SELLER
Seller hereby represents and warrants to and agrees with Purchaser as
follows:
Section 3.1 Organization and Authority of Seller and RMHI.
(a) Seller is a limited partnership, duly organized, validly existing
and in good standing under the laws of its state of formation and, has all
necessary power and authority to enter into this Agreement, to carry out its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by Seller, the performance by
Seller of its obligations hereunder and the consummation by Seller of the
transactions contemplated hereby have been duly authorized by all requisite
partnership action on the part of Seller. This Agreement has been duly executed
and delivered by Seller and (assuming due authorization, execution and delivery
by Purchaser) constitutes a valid and binding obligation of Seller enforceable
against Seller in accordance with its terms, subject to the effect of any
applicable bankruptcy, reorganization, insolvency, moratorium or other similar
laws affecting creditor's rights generally and subject as to enforceability to
the effect of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(b) RMHI is a corporation, duly organized, validly existing and in good
standing under the laws of Nevada, its state of formation.
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Section 3.2 Capital Structure.
(a) The authorized capital stock of RMHI consists of 3,650 shares of
Common Stock and 12,000 shares of Preferred Stock. As of the date hereof: (i)
12,000 shares of Preferred Stock are issued and outstanding; (ii) 3,285 shares
of Class A Common Stock are issued and outstanding; and (iii) 365 shares of
Class B Common Stock are issued and outstanding.
All of the outstanding Class A and Class B Common Stock and Preferred
Stock of RMHI were issued in compliance with applicable federal and state
securities laws, and no further registration, qualification or other compliance
under such securities laws is required in connection with the sale of the
Shares. All of the Shares are duly authorized, validly issued, fully paid and
nonassessable and not subject to preemptive rights created by statute, RMHI's
Certificate of Incorporation or Bylaws or any agreement to which Seller or RMHI
is a party or is bound.
(b) Except as set forth in Section , there are no equity securities of
any class of RMHI, or any security exchangeable into or exercisable for such
equity securities, issued, reserved for issuance or outstanding. There are no
options, warrants, calls, rights, commitments or agreements of any character to
which RMHI is a party or by which it is bound obligating RMHI to issue, deliver
or sell, or cause to be issued, delivered or sold, additional shares of capital
stock of RMHI or obligating RMHI to grant, extend or enter into any such option,
warrant, call, right, commitment or agreement. There are no voting trusts,
proxies or other agreements or understandings with respect to the shares of
capital stock of RMHI.
Section 3.3 Equity Investments. RMHI owns directly all of the
outstanding capital stock of RMG. RMHI has pledged to certain banks all of the
Preferred Stock of RMG.
Section 3.4 Ownership. Seller has good title to the Shares and upon the
Closing, Purchaser will have good title to the Shares, free and clear of all
liens, claims and encumbrances and upon receipt by Seller of the Purchase Price
and delivery by Seller of the instruments and documents of assignment referred
to in Section , Purchaser will take all right, title and interest of Seller in
and to the Shares, free and clear of all
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liens, claims and encumbrances other than created by or through Purchaser or any
of its affiliates.
Section 3.5 No Conflict. Except as may result from any facts or
circumstances relating solely to Purchaser, the execution, delivery and
performance of this Agreement by Seller do not and will not (a) conflict with or
violate any Law or Governmental Order applicable to Seller or RMHI, (b) conflict
with or violate any provision of the charter documents of Seller or RMHI or (c)
conflict with or violate any agreement to which Seller or RMHI is a party which
conflict or violation would reasonably be expected to result in Seller or RMHI
being prevented or restrained from performing its obligations hereunder or
result in any lien, claim, or encumbrance on the Shares.
Section 3.6 Absence of Litigation. There are no Actions by or against
Seller, RMHI or RMG or, to the knowledge of Seller, any of their respective
affiliates, pending before any Governmental Authority which, if determined
adversely, would materially adversely affect the legality, validity or
enforceability of this Agreement or the consummation of the transactions
contemplated hereby. Except for filings pursuant to the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, no consent of any Government Authority is
necessary for the sale of the Shares. Neither Seller, RMHI nor RMG nor, to the
knowledge of Seller, any of their respective affiliates, is subject to any
Governmental Order (nor, to the knowledge of Seller, are there any such
Governmental Orders threatened to be imposed by any Governmental Authority)
relating to or affecting the Shares or which would materially adversely affect
the legality, validity or enforceability of this Agreement or the consummation
of the transactions contemplated hereby. To the knowledge of Seller, there are
no Actions by or against Seller, RMHI or RMG pending before any Governmental
Authority and RMHI and RMG are not subject to any Governmental Order and there
are no Governmental Orders threatened to be imposed by any Governmental
Authority against RMHI or RMG. During the period from the date hereof until the
Closing, Seller will apprise Purchaser of the institution or written threat of
any Actions referred to in this Section and known to Seller.
Section 3.7 Brokers. No broker, finder or investment banker is entitled
to any brokerage, finder's or other fee or
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commission in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of Seller.
Section 3.8 Debt. Seller has not, independent of RMHI or RMG corporate
action, incurred any indebtedness for borrowed money on behalf of RMHI or RMG or
created any obligation on behalf of RMHI or RMG and Seller agrees that, between
the date hereof and the Closing Date, Seller will not, independent of RMHI
action, incur any indebtedness for borrowed money on behalf of RMHI or RMG or
create any obligation for which RMHI or RMG may be liable.
Section 3.9 Undisclosed Liabilities. To the knowledge of Seller, RMHI
and RMG do not have any liabilities, contingent or otherwise, not reflected on
the most recent financial statements of RMHI and RMG.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF PURCHASER
Purchaser hereby represents and warrants to Seller as follows:
Section 4.1 Organization and Authority of Purchaser. Purchaser is a
limited partnership duly organized, validly existing and in good standing under
the laws of the State of California and has all necessary power and authority to
enter into this Agreement, to carry out its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Purchaser, the performance by Purchaser of its obligations
hereunder and the consummation by Purchaser of the transactions contemplated
hereby have been duly authorized by all requisite corporate action on the part
of Purchaser. This Agreement has been duly executed and delivered by Purchaser
and (assuming due authorization, execution and delivery by Seller) constitutes a
valid and binding obligation of Purchaser enforceable against Purchaser in
accordance with its terms, subject to the effect of any applicable bankruptcy
reorganization, insolvency, moratorium or other similar laws affecting
creditor's rights generally and subject as to enforceability to the effect of
general principles
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of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
Section 4.2 No Conflict. Except as may result from any facts or
circumstances relating solely to Seller, the execution, delivery and performance
of this Agreement by Purchaser does not and will not (a) conflict with or
violate any Law or Governmental Order applicable to Purchaser, (b) conflict with
or violate any provision of Purchaser's certificate of incorporation or bylaws
or (c) conflict with or violate any agreement to which Purchaser is a party
which conflict or violation would reasonably be expected to result in Purchaser
being prevented or restrained from performing its obligations hereunder.
Section 4.3 Absence of Litigation. There are no Actions by or against
Purchaser or any of its affiliates pending before any Governmental Authority
which would, if adversely determined, materially adversely affect the legality,
validity or enforceability of this Agreement or the consummation of the
transactions contemplated hereby. Except for filings pursuant to the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, no consent of any
Government Authority is necessary for the sale of the Shares. Purchaser is not
subject to any Governmental Order (nor, to the knowledge of Purchaser, are there
any such Governmental Orders threatened to be imposed by any Governmental
Authority) which would materially adversely affect the legality, validity or
enforceability of this Agreement or the consummation of the transactions
contemplated hereby. During the period from the date hereof until the Closing,
Purchaser will apprise Seller and RMHI of the institution or written threat of
any Actions or Governmental Order referred to in this Section and known to
Purchaser.
Section 4.4 Brokers. No broker, finder or investment banker is entitled
to any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of Purchaser.
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ARTICLE V
ADDITIONAL AGREEMENTS
Section 5.1 Further Action. Each of the parties hereto shall use all
reasonable efforts to take or cause to be taken all appropriate action, do or
cause to be done all things necessary, proper or advisable, and execute and
deliver such documents and other papers, as may be required to carry out the
provisions of this Agreement and consummate and make effective the transactions
contemplated by this Agreement.
Section 5.2 No Other Representations or Warranties. Purchaser hereby
acknowledges and agrees with Seller and RMHI as follows:
THE SHARES ARE BEING SOLD ON AN "AS IS" "WITH ALL FAULTS" BASIS, AND
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE
HEREOF, SELLER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED,
WRITTEN OR ORAL, AND SELLER HEREBY DISCLAIMS ANY SUCH REPRESENTATION OR
WARRANTY (INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OR WARRANTY
OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE), WHETHER BY
SELLER, ITS AFFILIATES, OR ANY OF THEIR AGENTS OR REPRESENTATIVES OR
ANY OTHER PERSON, WITH RESPECT TO THE SHARES OR THE EXECUTION AND
DELIVERY OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY,
NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO PURCHASER, ANY AFFILIATE
OF PURCHASER OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR
REPRESENTATIVES OR ANY OTHER PERSON OF ANY DOCUMENT OR OTHER
INFORMATION BY SELLER, ANY OF ITS AFFILIATES, OR ANY OF THEIR OFFICERS,
PARTNERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES OR ANY OTHER
PERSON WITH RESPECT TO ANY ONE OR MORE OF THE FOREGOING.
ARTICLE VI
CONDITIONS TO CLOSING
Section 6.1 Conditions to Obligations of Seller. The obligations of
Seller to consummate the transactions contem-
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plated by this Agreement shall be subject to the fulfillment, at or prior to the
Closing, of the following conditions:
(a) Purchaser shall have delivered the Purchase Price and the
instruments and documents of assumption in accordance with Section 2.3(b)
hereof;
(b) the representations and warranties of Purchaser contained in this
Agreement shall have been true and correct in all material respects on the date
hereof and on the Closing Date, as if made on each such date;
(c) the covenants and agreements contained in this Agreement to be
complied with by Purchaser at or prior to the Closing shall have been complied
with in all material respects;
(d) as of the Closing Date, no Action shall have been completed,
pending or threatened against Seller or Purchaser that has or is likely to
result in a judgment, decree or order that would prevent or make unlawful the
consummation of the transactions under this Agreement and there shall be in
effect no Governmental Order restraining or prohibiting the consummation of the
transactions contemplated by this Agreement nor any proceedings pending with
respect thereto;
(e) Seller shall have received all necessary regulatory consents for
the sale of the Shares;
(f) Seller shall have received a certificate signed by a senior
executive officer or general partner of Purchaser to the effect that the
requirements of clauses (b), (c) and (d) above have been satisfied; and
(g) Seller shall have received such other documents and certificates as
it may reasonably request.
Section 6.2 Conditions to Obligations of Purchaser. The obligations of
Purchaser to consummate the transactions contemplated by this Agreement shall be
subject to the fulfillment, at or prior to the Closing, of the following
conditions:
(a) Seller shall have delivered the instruments and docu-
ments of assignment in accordance with Section 2.3(c) hereof;
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(b) the representations and warranties of Seller contained in this
Agreement shall have been true and correct in all material respects on the date
hereof and on the Closing Date, as if made on each such date;
(c) the covenants and agreements contained in this Agreement to be
complied with by Seller at or prior to the Closing shall have been complied with
in all material respects;
(d) as of the Closing Date, no Action shall have been completed,
pending or threatened against Seller or Purchaser that has or is likely to
result in a judgment, decree or order that would prevent or make unlawful the
consummation of the transactions under this Agreement and there shall be in
effect no Governmental Order restraining or prohibiting the consummation of the
transactions contemplated by this Agreement nor any proceedings pending with
respect thereto;
(e) Seller shall have received all necessary regulatory consents for
the sale of the Shares;
(f) Purchaser shall have received certificates signed by a senior
executive officer or the general partner of Seller to the effect that the
requirements of clauses (b), (d) and (e) above have been satisfied; and
(g) Purchaser shall have received such other documents and certificates
as it may reasonably request.
ARTICLE VII
TERMINATION AND WAIVER
Section 7.1 Termination. This Agreement may be terminated at any time
prior to the Closing:
(a) by the mutual written consent of Purchaser and Seller;
(b) by Purchaser or Seller in the event that the Closing has not
occurred by August 31, 1996;
(c) by Purchaser or Seller in the event that any Governmental Authority
shall have issued an order, decree or ruling or taken any other action
restraining, enjoining or
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otherwise prohibiting the transactions contemplated by this Agreement and such
order decree, ruling or other action shall have become final and nonappealable;
(d) by Purchaser if between the date hereof and the time scheduled for
the Closing, Seller makes a general assignment for the benefit of creditors, or
any proceeding shall be instituted by or against Seller seeking to adjudicate
them bankrupt or insolvent, or seeking arrangement, adjustment, protection,
relief or composition of its debts under any Law relating to bankruptcy,
insolvency or reorganization; or
(e) by Seller if, between the date hereof and the time scheduled for
the Closing, Purchaser makes a general assignment for the benefit of creditors,
or any proceeding shall be instituted by or against Purchaser seeking to
adjudicate it bankrupt or insolvent, or seeking arrangement, adjustment,
protection, relief or composition of its debts under any Law relating to
bankruptcy, insolvency or reorganization.
Section 7.2 Effect of Termination. In the event of termination of this
Agreement as provided in Section 7.1, this Agreement shall forthwith become void
and there shall be no liability on the part of any party hereto except that
nothing herein shall relieve any party from liability for any breach of this
Agreement.
Section 7.3 Waiver. Any party to this Agreement may (a) extend the time
for the performance of any of the obligations or other acts of any other party,
(b) waive any inaccuracies in the representations and warranties of any other
party contained herein or in any document delivered by such other party pursuant
hereto or (c) waive compliance with any of the agreements or conditions of any
other party contained herein. Any such extension or waiver shall be valid only
if set forth in an instrument in writing signed by the party to be bound
thereby. Any waiver of any term or condition shall not be construed as a waiver
of any subsequent breach or a subsequent waiver of the same term or condition or
a waiver of any other term or condition of this Agreement. The failure of any
party to assert any of its rights hereunder shall not constitute a waiver of any
of such rights.
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ARTICLE VIII
GENERAL PROVISIONS
Section 8.1 Survival. The representations and warranties of the parties
hereto contained in this Agreement shall terminate immediately following
completion of the Closing.
Section 8.2 Expenses. Except as otherwise specified in this Agreement,
all costs and expenses, including, without limitation, fees and disbursements of
counsel, financial advisors and accountants, incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such costs and expenses.
Section 8.3 Notices. All notices, requests, claims, demands,
applications, services of process and other communications which are required to
be or may be given under this Agreement will be in writing and will be deemed to
have been duly given if sent by telecopy or facsimile transmission, answer back
requested, or delivered by courier or mailed, certified first class mail,
postage prepaid, return receipt requested, to the parties hereto at the
following addresses:
(a) if to Seller:
InterMedia Capital Management V, L.P.
235 Montgomery Street Suite 420
San Francisco, CA 94104
Attn: Mr. Rodney M. Royse
With a copy to:
Pillsbury Madison & Sutro LLP
235 Montgomery Street
San Francisco, CA 94104
Attn: Gregg Vignos, Esq.
Facsimile: (415) 983-1200
Telephone: (415) 983-1649
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(b) if to Purchaser:
InterMedia Partners IV, L.P.
235 Montgomery Street Suite 420
San Francisco, CA 94104
Attn: Mr. Rodney M. Royse
Facsimile: (415) 397-3978
Telephone: (415) 616-4600
or to such other address as any party will have furnished to the others by
notice given in accordance with this Section . Such notice will be effective,
(i) if delivered in person or by courier, upon actual receipt by the intended
recipient, or (ii) if sent by telecopy or facsimile transmission, when
confirmation is received, or (iii) if mailed, upon the date of delivery as shown
by the return receipt therefor (rejection or other refusal to accept or
inability to deliver because of a change of address of which no notice was given
shall be deemed to be receipt of notice).
Section 8.4 Public Announcements. Except as required by Law, no party
to this Agreement shall make, or cause to be made, any press release or public
announcement or otherwise communicate with any news media in respect of this
Agreement or the transactions contemplated hereby without the prior written
consent of the other parties which consent shall not be unreasonably withheld or
delayed; provided, however, that any party may at any time make announcements
which are required by applicable law so long as the party so required to make an
announcement promptly upon learning of such requirement notifies the other party
of such requirement and discusses with the other party in good faith the exact
wording of any such announcement.
Section 8.5 Headings. The descriptive headings contained in this
Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
Section 8.6 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any Law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any
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manner materially adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner in order that the transactions contemplated hereby are consummated as
originally contemplated to the greatest extent possible.
Section 8.7 Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written and oral, between
Seller and Purchaser with respect to the subject matter hereof.
Section 8.8 Assignment. This Agreement may not be assigned by any party
without the express written consent of the other parties (which consent may be
granted or withheld in the sole discretion of such party).
Section 8.9 No Third Party Beneficiaries. This Agreement shall be
binding upon and inure solely to the benefit of the parties hereto and their
permitted assigns and, except as otherwise expressly provided herein, nothing
herein is intended to or shall confer upon any other Person any legal or
equitable right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
Section 8.10 Amendment. This Agreement may not be amended or modified
except by an instrument in writing signed by, or on behalf of, Seller and
Purchaser.
Section 8.11 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of California, applicable to
contracts executed in and to be performed entirely within that state.
Section 8.12 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at Law or equity.
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Section 8.13 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original and all of which when
taken together shall constitute an actual instrument.
Section 8.14 Knowledge. For the purposes of this Agreement, "knowledge"
of a party means the actual knowledge of key management personnel of such party.
The parties have executed this Agreement as of the day and year first
above written.
INTERMEDIA CAPITAL MANAGEMENT V,
L.P., a California limited
partnership
By INTERMEDIA MANAGEMENT, INC., a
California corporation, as
General Partner
By /s/ Leo J. Hindery, Jr.
----------------------------------
Leo J. Hindery, Jr.
President
INTERMEDIA PARTNERS IV, L.P., a
California limited partnership
By INTERMEDIA CAPITAL MANAGEMENT
IV, L.P., a California limited
partnership, as General Partner
By INTERMEDIA MANAGEMENT, INC., a
California corporation, as
General Partner
By /s/ Leo J. Hindery, Jr.
----------------------------------
Leo J. Hindery, Jr.
President
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