EXHIBIT 10.5
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement") is made effective as
of November 1, 2001 by and between VULCAN VENTURES INCORPORATED, a corporation
organized under the laws of the State of Washington ("Seller") and HIGH SPEED
ACCESS CORP., a corporation organized under the laws of the State of Delaware
("Purchaser" or "HSA").
RECITALS:
WHEREAS, Seller is the beneficial and record holder of 20,222,139
shares (the "HSA Shares") of common stock, $.01 par value (the "Common Stock")
of HSA, which represents all of the Common Stock owned by Seller;
WHEREAS, Charter Communications Holding Company, LLC ("Charter") 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 Charter of certain of the assets of HSA
used to provide broadband Internet access over cable and related services to
residential and commercial customers of Charter and its affiliates; and
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, upon the closing of the transactions contemplated by the
Asset Purchase Agreement, the HSA Shares on the terms and conditions contained
herein; and
WHEREAS, HSA and Seller wish to confirm and acknowledge that all
discussions relating to HSA purchasing an equity interest in Digeo Broadband,
Inc. ("Digeo") or performing services on behalf of Digeo have terminated without
agreement and that HSA shall have no rights or obligations with respect thereto;
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
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 Consideration. The consideration for the purchase and sale
of the HSA Shares described in Section 1.01 above is Four Million Four Hundred
Forty Eight Thousand Eight Hundred Seventy United States Dollars
($4,448,870.00).
1
ARTICLE II
CLOSING
Section 2.01 Closing. The closing of the purchase of the HSA Shares
(the "Closing") shall occur at the offices of Paul, Hastings, Janofsky & Walker
LLP, at 10:00 a.m. (New York City local time) concurrently with the closing
under the Asset Purchase Agreement (the "Closing Date") or at such other place,
time and date as may be agreed upon by Purchaser and Seller.
Section 2.02 Deliveries. At the Closing, (a) Seller shall deliver to
Purchaser certificates representing the HSA Shares together with duly executed
stock powers, or shall otherwise arrange for a DTC transfer of the HSA shares to
Purchaser, and (b) Purchaser shall deliver to Seller the amount of Four Million
Four Hundred Forty Eight Thousand Eight Hundred Seventy United States Dollars
($4,448,870.00) 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.
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 incorporated,
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 Common Stock owned by the Seller.
2
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 that would prevent it from consummating the transactions
contemplated by this Agreement.
Section 3.05. Access to Information. Seller has been provided with all
of the information it deems relevant in evaluating the merits and risks of the
transactions contemplated hereby and does not require any additional information
regarding Purchaser in connection with the transactions provided for herein and
Seller has been granted the opportunity to ask all questions of, and received
satisfactory answers from, management of Purchaser.
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 corporation duly
incorporated, 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.
ARTICLE V
MUTUAL RELEASE AND WAIVER
In consideration of the agreements contained herein : (a) Purchaser and
Seller agree that the discussions between them respecting the possible
investment by Purcahser in Digeo and its possible performance of services on
behalf of Digeo have terminated without agreement and that, assuming
consummation of the Asset Purchase Agreement, Purchaser will lack the resources
to perform such services; (b) effective concurrently with the execution of this
Agreement each of Seller and Purchaser hereby waives any and all claims and
releases the other and their respective officers, directors, employees,
attorneys, agents, affiliates (including without limitation as to Seller,
Charter and Digeo and their respective officers, directors, employees,
attorneys, agents, affiliates, successors, assigns, heirs and representatives)
successors, assigns, heirs and representatives from any and all demands, debts,
issues, causes of action and liabilities,
3
whether liquidated or unliquidated, fixed or contingent, matured or unmatured,
known or unknown, then existing or thereafter arising, that are based in whole
or part on any act, omission or other fact or circumstances relating to
Purchaser's right (if any) to acquire an equity interest in Digeo and its
obligation to pay approximately Two Million Five Hundred Thousand Dollars
($2,500,000), or Purchaser's right or obligation to perform services on behalf
of Digeo, including, without limiting the generality of the foregoing, those
arising in connection with any written or oral communications between Seller and
Purchaser, or between any of Seller or Purchaser and any other person or entity,
or the actions of Seller, or Purchaser, as the case may be, or their officers,
directors, shareholders, employees, attorneys, agents, affiliates (including
without limitation as to Seller, Charter and Digeo and their respective
officers, directors, employees, attorneys, agents, affiliates, successors,
assigns, heirs and representatives) successors, assigns, heirs and
representatives in connection with any of the foregoing (collectively, the
"Released Matters"); provided, however, that nothing contained in the foregoing
release and waiver shall be applicable to the parties' respective rights and
obligations with respect to any act, omission or other occurrence not relating
to the Released Matters and (c) Seller and Purchaser acknowledge and agree that,
effective concurrently with the execution of this Agreement, Purchaser shall
have no right or obligation to acquire any equity interest in Digeo or to
perform any services on behalf of Digeo (the "Waived Matters") and none of
Seller, Digeo or Charter or their respective officers, directors, shareholders,
employees, attorneys, agents, affiliates, successors, assigns, heirs, or
representatives shall have any obligation to HSA as a result of such Waived
Matters; in each case without further action on the part of Seller and/or
Purchaser.
ARTICLE VI
CLOSING CONDITIONS OF PURCHASER
Purchaser shall not be required to consummate the purchase of the HSA
Shares contemplated by this Agreement unless the following conditions shall be
fulfilled:
Section 6.01. Representations and Warranties. Except as otherwise
contemplated or permitted by this Agreement, 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.
Section 6.02. Asset Purchase Consummated. The transactions contemplated
by the Asset Purchase Agreement shall have been consummated.
ARTICLE VII
CLOSING CONDITIONS OF SELLER
Seller shall not be required to consummate the sale of the HSA Shares
contemplated by this Agreement unless the following conditions shall be
fulfilled:
4
Section 7.01. 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.
Section 7.02. Asset Purchase Consummated. The transactions contemplated
by the Asset Purchase Agreement shall have been consummated.
Section 7.03. Closing. The Closing of the transactions contemplated
hereby shall have been completed on or before March 31, 2002.
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 8.01 Representations, Warranties and Covenants. The
representations, warranties, covenants, indemnities and releases contained in
this Agreement shall survive the Closing Date without limitation.
ARTICLE IX .
MISCELLANEOUS
Section 9.01. 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
Attention: William D. Savoy
Facsimile: (206) 342-3000
with copies to: Irell & Manella LLP
1800 Avenue of the Stars, Suite 900
Los Angeles, CA 90067
Attention: Alvin G. Segel, Esq.
Facsimile: (310) 203-7199
Vulcan Ventures Incorporated
505 Fifth Avenue South, Suite 900
Seattle, WA 98104
Attention: Michael Rodden
Facsimile: (206) 342-3000
5
if to Purchaser, to: High Speed Access Corp.
10901 West Toller Drive
Littleton, CO 80127
Attention: Daniel J. O'Brien
Facsimile: (720) 922-2805
with a copy to: Weil Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153
Attention: Howard Chatzinoff, Esq.
Facsimile: (212) 310-8007
6
Section 9.02. 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 9.03. 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 9.04. Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all 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 9.05. 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 9.06. 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 9.07. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
the choice of law provisions thereof.
Section 9.08. 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 9.09. Effect of Release and Waiver. Purchaser's failure to
purchase the HSA Shares for any reason whatsoever (including termination of this
Agreement) shall not affect the Mutual Release and Waiver contained in Article V
hereof which is effective concurrently with the execution of this Agreement and
independent of whether the purchase of the HSA Shares is consummated.
7
Section 9.10. Termination. The right and obligation of the parties
hereto to purchase and sell the HSA Shares, respectively, shall automatically
terminate if the Asset Purchase Agreement is terminated. Any such termination
shall not affect the Mutual Release and Waiver contained in Article V hereof
which is effective concurrently with the execution of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this 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
----------------------------
Name: William D. Savoy
Title: Vice President
HIGH SPEED ACCESS CORP.
By: /s/ Daniel J. O'Brien
----------------------------
Name: Daniel J. O'Brien
Title: President and CEO
8