1
[CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL
PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED
AND HAVE BEEN SEPARATELY FILED WITH
THE COMMISSION.]
EXHIBIT 10.7
SYSTEMS ACCESS AND INVESTMENT AGREEMENT
This Systems Access and Investment Agreement (the "Agreement") is dated
and effective as of November 25, 1998 (the "Effective Date"), among:
HIGH SPEED ACCESS CORP.
0000 Xxxx Xxxxxx Xxx., Xxxxx 000
Xxxxxxxxxx, XX 00000 ("HSAC")
VULCAN VENTURES, INCORPORATED
000 000xx Xxxxxx XX
Xxxxxxxx, XX 00000 ("Vulcan")
CHARTER COMMUNICATIONS, INC.
00000 Xxxxxxxxxxx Xx., Xxxxx 000
Xx. Xxxxx, XX 00000 ("Charter")
and
MARCUS CABLE, INC.
0000 Xxxxxx Xxxxx Xxxx., Xxxxx 0000
Xxxxxx, XX 00000 ("Marcus")
Recitals
A. Vulcan and/or other entities owned or controlled by Xxxx X.
Xxxxx have agreed to purchase Charter and Marcus and may in
the future own or control other MSOs and Cable Systems. Both
Charter and Marcus, directly or through their respective
affiliates and subsidiaries, own and operate various Cable
Systems.
B. Charter and Marcus wish to offer their Cable Subscribers in
Committed Systems (listed on EXHIBIT A of the Network
Agreement) the opportunity to utilize the applicable Committed
Systems for Internet access and related services.
C. HSAC provides Internet access and related services through
various cable, telephone and wireless systems.
D. Charter and Marcus wish to retain HSAC to offer and provide
Internet access and related services to Cable Subscribers in
Committed Systems, and HSAC wishes to access the Cable
Subscribers in Committed Systems to provide Internet access
and related services to such Cable Subscribers.
E. Vulcan wishes (i) to have the right to retain HSAC to offer
and provide Internet access and related services to certain
Cable Subscribers of other MSOs and Cable Systems that Vulcan
may own or control in the future, and (ii) to purchase an
equity ownership interest in HSAC.
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NOW, THEREFORE, in consideration of the foregoing, and the exchange of
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, and intending to be legally bound hereby, the parties agree
as follows:
1. DEFINITIONS. Unless otherwise defined herein, where reference is
made thereto the following capitalized terms used in this Agreement shall have
the following meanings:
1.1 "Cable Subscriber" means a cable TV subscriber or potential
subscriber residing in a Home Passed in a Committed System regardless of whether
such cable TV subscriber or potential subscriber subscribes to the HSAC
Services.
1.2 "Cable System(s)" means any radio frequency ("RF") cable
television franchise or hybrid fiber-coaxial RF Plant distribution system ("RF
Plant") serving a geographically proximal group of residences, businesses, or
other locations. Cable Systems include both One-Way Systems and Two-Way Systems.
1.3 "Certificate of Incorporation" means the Certificate of
Amendment to Certificate of Incorporation of HSAC of even date herewith in the
form attached hereto as ANNEX G.
1.4 "Class A Warrants" means warrants in the form attached hereto as
ANNEX C granted to Vulcan under Section 5.1 hereof to purchase up to Two Million
Five Hundred Thousand (2,500,000) shares of HSAC's common stock (each a "Warrant
Share") at a per share exercise price of Five Dollars ($5.00) per share (for an
aggregate purchase price of up to Twelve Million Five Hundred Thousand Dollars
($12,500,000)), pursuant to the terms and conditions of the Class A Warrants.
1.5 "Class B Warrants" means warrants in the form attached hereto as
ANNEX D granted to Vulcan under Section 5.2 hereof to purchase up to an
additional Two Million Five Hundred Thousand (2,500,000) Warrant Shares at a per
share exercise price of Five Dollars ($5.00) per share (for an aggregate
additional purchase price of up to Twelve Million Five Hundred Thousand Dollars
($12,500,000)), pursuant to the terms and conditions of the Class B Warrants.
1.6 "Committed System(s)" means the Cable Systems that an Operator
has specifically designated in such Operator's sole and absolute discretion as
Committed Systems, that such Operator reasonably believes will conform to
Section 4 hereof and that are either listed in EXHIBIT A of the Network
Agreement as of the Effective Date or are designated as Committed Systems and
added to the Network Agreement pursuant to Section 2.2 below (and Section 2.2 of
the Network Agreement) during the Term. A Cable System shall be deemed to no
longer be a Committed System if (i) it has been withdrawn by an Operator
pursuant to Section 7 below and/or Section 18 of the Network Agreement, (ii) the
Network Agreement has expired or been terminated for any reason pursuant to
Section 18 of the Network Agreement with respect to such Committed System, or
(iii) such Committed System is no longer controlled by the Operator for any
reason.
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1.7 "Confidential Information" means any and all information related
to either HSAC's business or Operator's business in any form, including, without
limitation, (i) customer information, (ii) the terms and conditions of this
Agreement, (iii) all dates, summaries, reports or information of all kinds,
whether oral or written, acquired, devised or developed in any manner by or from
the disclosing party's files, and (iv) financial, statistical, personnel, or
technical information, software or documentation, which the disclosing party
deems proprietary or confidential.
1.8 "Content" means "Content" as defined in the Content Agreement.
1.9 "Content Agreement" means the Programming Content Agreement of
even date herewith between Vulcan and HSAC in the form attached hereto as ANNEX
E.
1.10 "Customer Lists" means the Operator's list of Cable Subscribers
in each Committed System and related subscriber information.
1.11 "Data Subscriber" means a Cable Subscriber residing in a Home
Passed in a Committed System who subscribes to the HSAC Services regardless of
whether such subscriber subscribes to Operator's cable TV service. Each Multiple
Dwelling Unit ("MDU") constitutes not more than a single Data Subscriber for
purpose of this Agreement.
1.12 "Full HSAC Services Roll-Out" means the creation, staffing and
operation of every business, technical and service aspect necessary to fully
implement the HSAC Services.
1.13 "Gross Revenues" means all gross revenues collected from Data
Subscribers for the HSAC Services, including, without limitation, monthly
subscription fees regardless of which party handles the billing and collection,
and as used herein, does not include: (i) applicable sales or use taxes, (ii)
federal, state or local franchise fees, (iii) Installation Fees as defined in
the Network Agreement or any other set-up charges assessed by HSAC, Operators or
any authorized third-party reseller or installer (subject to the limitations set
forth in Section 6.2 of the Network Agreement), (iv) rentals paid by Data
Subscribers on Home Equipment Packages as defined in the Network Agreement
(subject to the limitations set forth in Section 6.2 of the Network Agreement),
CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
1.14 "Home(s) Passed" means residences that are connected (i.e., a
residence with an installed cable "drop" from an Operator's Cable System or
which is eligible for such cable "drop" by virtue of an Operator's Cable System
passing such residence) to Operators' cable RF Plant for such Cable System,
regardless of whether the persons residing in such residences subscribe to cable
TV services. Each MDU constitutes a single Home Passed for purposes of this
Agreement.
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1.15 "HSAC Network Equipment" means the equipment that HSAC employs
for operation of the HSAC Services by connecting such equipment to the head-end
of Operators' Cable Systems. HSAC Network Equipment includes, without
limitation, all monitoring devices, telecommunications equipment, storage
devices, computing and data processing equipment, and software.
1.16 "HSAC Services" means the design, engineering, construction
(excluding the RF Plant portion of the Cable System), installation, activation,
beta testing, ISP and data network operation and management, sales and
marketing, customer service and "call center" support, billing (as agreed to the
parties on a case-by-case basis), pre- and post-Launch Date deployment and
operation, and maintenance of Internet access and related services from the Data
Subscriber's computer and cable modem through any Committed System to HSAC's
Internet Portal including, without limitation, interfacing HSAC Network
Equipment with Committed Systems to allow Data Subscribers, for a monthly fee or
other charges, to browse the World Wide Web, read news groups, and receive and
send electronic mail ("E-mail") and perform related activities.
1.17 "Internet Portal" means a physical site sometimes referred to
as a "point of presence" where there is a collection of equipment including
routers, data storage devices, and modems that are used to connect to customers
and leased telecommunication lines that connect such site directly to a part of
the Internet backbone.
1.18 "Launch Date" means, with respect to a particular Committed
System, the date on which HSAC or Operator, as the case may be, is required to
commence revenue billing for Data Subscribers in such Committed System pursuant
to the Activation Schedule under the Network Agreement.
1.19 "MSO" means an entity that owns, controls, or operates multiple
Cable Systems that is generally referred to as a Multiple System Operator in the
cable television industry.
1.20 "Network Agreement" means the Network Services Agreement in the
form attached hereto as ANNEX F, as same may be amended from time to time to add
and/or delete Committed Systems and Potential Operators and as otherwise agreed
in writing by the parties thereto.
1.21 "One-Way" means a Cable System that can only deliver television
signals, data, or other digital or analog information downstream from the cable
head end to the Cable Subscriber, and must use another means, including without
limitation a telephone line and modem, to send any information from the Cable
Subscriber to an Internet Portal.
1.22 "Operators" means Charter, Marcus, Vulcan and any Potential
Operator.
1.23 "Optional Services" means the provisioning by HSAC of data
connection/transmission services that are not specifically included in the
definition of HSAC Services, including, but not limited to (i) telephony, video
on demand, and pay-per-view; and (ii) provisioning of consumer-oriented software
or data applications such as on-line banking and electronic utility meter
reading.
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1.24 "Other Agreements" means (i) the Content Agreement, (ii) the
Network Agreement, (iii) the Series B Convertible Stock Purchase Agreement, (iv)
the Series C Convertible Stock Purchase Agreement, (v) the Class A Warrants and
the Class B Warrants, (vi) the Voting Agreement, (vii) the Registration Rights
Agreement, (viii) the Shareholders Agreement, and (ix) the Certificate of
Incorporation.
1.25 "Potential Operators" means, as the case may be or the context
requires, any Cable Systems or packet-switched data systems now or hereafter
owned or controlled by, directly or indirectly, or affiliated with Xxxx Xxxxx,
any Operator, or any of their respective affiliates or subsidiaries.
1.26 "Registration Rights Agreement" means the Amended and Restated
Registration Rights Agreement of even day herewith among HSAC and the
"Investors" parties thereto in the form attached hereto as ANNEX H.
1.27 "Series B Convertible Stock Purchase Agreement" means the
Series B Convertible Preferred Stock Purchase Agreement of even day herewith
between HSAC and Vulcan in the form attached hereto as ANNEX A.
1.28 "Series C Convertible Stock Purchase Agreement" means the
Series C Convertible Preferred Stock Purchase Agreement of even day herewith
between HSAC and Vulcan in the form attached hereto as ANNEX B.
1.29 "Shareholders Agreement" means the Amended and Restated
Shareholders Agreement of even day herewith among HSAC and the "Common
Shareholders" and "Investors" parties thereto in the form attached hereto as
ANNEX I.
1.30 "Startup Page" means the first or default television or
computer screen displayed to Data Subscribers every time that they access the
HSAC Services as a means to obtain access to the Internet or any other
interactive material available via the HSAC Services. A Startup Page may or may
not be in the form of a Web Page, and may be different for different Cable
Systems.
1.31 "Termination Event" has the meaning set forth in Section 18.3
of the Network Agreement.
1.32 "Two-Way" means a Cable System that can both send and deliver
television signals, data, or other digital or analog information upstream and
downstream to and from the cable head-end to and from the Cable Subscriber,
without using another means to send or receive any information from the Cable
Subscriber to an Internet Portal. 1.33 "Voting Agreement" means the Voting
Agreement of even day herewith among HSAC, Broadband Solutions, LLC, Broadband
Solutions II, LLC, and Vulcan in the form attached hereto as ANNEX J.
1.34 "Web Page" means a document specially formatted in hypertext
markup language ("HTML") which supports links to other documents, as well as
graphics, audio, video files, and other Content. A group of Web Pages linked
together and share the same World Wide Web domain name constitutes a "Web Site."
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1.35 "World Wide Web" means the system of Internet servers that
supports HTML-formatted documents. Not all Internet servers are part of the
World Wide Web.
1.36 Other Definitions. The following additional defined terms shall
have the meanings ascribed to them in the Sections indicated below:
"Class A Warrant Date" 6.1.1
"Class B Warrant Date" 6.1.2
"Intellectual Property Laws" 12.1.5
"MDU" 1.11
"Notices" 15.3
"RF" 1.2
"RF Plant 1.2
"Series B Convertible Preferred Stock" 5.1
"Series C Convertible Preferred Stock" 5.2
"Temporary Startup Page" 8.2
"Temporary Web Site" 8.2
"Term" 11
"Warrant Shares" 1.5
2. EXCLUSIVE RIGHT TO PROVIDE HSAC SERVICES. Operators and HSAC agree
that:
2.1 During the Term, HSAC shall have the sole and exclusive right to
access the Committed Systems for purposes of performing the HSAC Services,
subject to and in accordance with the terms and conditions of this Agreement and
the Network Agreement.
2.2 During the Term, Operators shall have the right, but not the
obligation, to designate additional Cable Systems as Committed Systems under
Section 2.2 of the Network Agreement, and such right shall extend to any and all
Cable Systems now owned or hereafter acquired by an Operator. An Operator shall
exercise its right to designate additional Cable Systems as Committed Systems
hereunder by delivering written notice of such designation to HSAC in accordance
with the procedures set forth in the Network Agreement. Upon HSAC's receipt of
such notice, the additional Cable Systems designated in such notice shall
automatically become Committed Systems hereunder, and HSAC and the applicable
Operator shall execute an addendum to the Network Agreement reflecting the
addition of such additional Cable Systems and/or the inclusion of additional
Operators to the Network Agreement, subject to the inspection and commissioning
procedures and agreements set forth in Section 2.3 and 2.4 of the Network
Agreement.
3. NETWORK AGREEMENT. Concurrently with the execution and delivery
of this Agreement, Charter and Marcus shall enter into the Network Agreement,
and HSAC shall thereafter perform a Full HSAC Services Roll-Out for any and all
Committed Systems in accordance with such Network Agreement, as amended from
time to time.
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4. HOMES PASSED. The Committed Systems shall (i) include (or "pass") in
the aggregate not less than 750,000 Homes Passed, (ii) include (or "pass") at
least 4,000 Homes Passed per head-end, and (iii) conform to the System Data
Requirements set forth (and as defined) in the Network Agreement. Such System
Data Requirements shall include, but are not limited to, the requirement that
each Committed System (A) possess at least 400 MHz of bandwidth, (B) reserve at
least one (1) 6 MHz channel for the HSAC Services in One-Way Cable Systems and
at least two (2) 6 MHz channels for the HSAC Services in Two-Way Cable Systems,
and (C) shall be owned, controlled, or operated by an Operator. Operators
obligation to replace Committed Systems and Homes Passed upon the withdrawal of
Committed Systems from this Agreement and the Network Agreement shall be
governed by Section 18.5 of the Network Agreement.
5. HSAC CONVERTIBLE PREFERRED STOCK. Concurrently with the execution
and delivery of this Agreement:
5.1 Vulcan shall purchase Eight Million (8,000,000) shares of HSAC's
Series B Convertible Preferred Stock, $.01 par value (the "Series B Convertible
Preferred Stock"), at a purchase price of Two Dollars and Fifty Cents ($2.50)
per share (for an aggregate investment of $20,000,000), subject to the terms and
conditions set forth in the Series B Convertible Stock Purchase Agreement, and
certain other investors shall have purchased Two Million (2,000,000) shares of
Series B Convertible Preferred Stock by separate agreement at a purchase price
of Two Dollars and Fifty Cents ($2.50) per share (for an aggregate investment of
$5,000,000). The purchase of such other shares of Series B Convertible Preferred
Stock by such other investors shall be a condition precedent to Vulcan's
obligation to purchase shares of Series B Convertible Preferred Stock under this
Section 5.1.
5.2 HSAC shall authorize the issuance of Five Million (5,000,000)
shares of HSAC's Series C Convertible Preferred Stock, $.01 par value (the
"Series C Convertible Preferred Stock"), and HSAC and Vulcan shall enter into
the Series C Convertible Stock Purchase Agreement pursuant to which Vulcan shall
commit to purchase Two Million Five Hundred Thousand (2,500,000) shares of the
Series C Convertible Preferred Stock at a purchase price of Five Dollars ($5.00)
per share (for an aggregate investment of Twelve Million Five Hundred Thousand
Dollars ($12,500,000)), subject to the satisfaction of certain conditions set
forth in the Series C Convertible Stock Purchase Agreement, and shall have the
right to purchase an additional Two Million Five Hundred Thousand (2,500,000)
shares of the Series C Convertible Preferred Stock at the purchase price set
forth in the Series C Convertible Stock Purchase Agreement, subject to the
satisfaction of certain conditions set forth in the Series C Convertible
Preferred Stock Purchase Agreement.
6. WARRANTS FOR HSAC COMMON SHARES.
6.1 Concurrently with the execution and delivery of this Agreement,
HSAC and Vulcan will enter into:
6.1.1 The Class A Warrant pursuant to which HSAC will issue to
Vulcan one Class A Warrant (up to a maximum of 2,500,000 Class A Warrants in the
aggregate) for up to 2,500,000 Homes Passed in excess of 750,000 in Cable
Systems that are
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Committed Systems as of the Effective Date or are designated as additional
Committed Systems pursuant to Section 2.2 of the Network Agreement at any time
after the Effective Date, exercisable one (1) Warrant Share per each Home Passed
that is in any such Committed System or additional Committed Systems on or
before July 31, 2001 ("Class A Warrant Date"), which Class A Warrant Date will
be subject to adjustment as set forth in Section 6.4 below.
6.1.2 The Class B Warrant pursuant to which HSAC will issue to
Vulcan one Class B Warrant (up to a maximum of 2,500,000 Class B Warrants in the
aggregate) for up to 2,500,000 Homes Passed (beyond the Homes Passed counted for
purposes of earning Class A Warrants pursuant to Section 6.1.1 above) in Cable
Systems that are Committed Systems as of the Effective Date or are designated as
additional Committed Systems pursuant to Section 2.2 of the Network Agreement at
any time after the Effective Date, exercisable one (1) Warrant Share per each
such Home Passed that is in any such Committed System by July 31, 2003 ("Class B
Warrant Date"), which Class B Warrant Date will be subject to adjustment as set
forth in Section 6.4 below.
6.1.3 All Class A Warrants and Class B Warrants shall be deemed
vested (i.e., eligible for exercise) immediately when the applicable Home Passed
is or becomes part of a Committed System or additional Committed System under
the Network Agreement, subject to (i) the provisions of Section 6.3 below, and
(ii) the inspection and commissioning procedures set forth in Section 2.3 of the
Network Agreement.
6.2 Class A Warrants shall expire if unexercised on or before
December 31, 2011, and Class B Warrants shall expire if unexercised on or before
December 31, 2013, in each case subject to acceleration in accordance with the
terms of the Class A Warrant and Class B Warrant, as applicable.
6.3 Class A Warrants and Class B Warrants, to the extent of the
number of Homes Passed in additional Committed System designated under Section
2.2 of this Agreement and Section 2.2 of the Network Agreement (on a one (1)
Warrant Share per Home Passed basis), will be cancelled and deemed forfeited by
Vulcan (or its permitted transferee) in the event Operators withdraw Committed
Systems under the Network Agreement for any reason other than pursuant to
Sections 18.1, 18.2, 18.3, and/or 18.6 of the Network Agreement, except to the
extent Vulcan or Operators replace the Homes Passed in such withdrawn Committed
System with Homes Passed in another Committed System(s) or additional Committed
Systems. Class A Warrants and Class B Warrants will not be cancelled or deemed
forfeited if Operator terminates any of HSAC's exclusive rights as provided for
or permitted under this Agreement or the Network Agreement. Effective as of the
Class B Warrant Date, the parties shall effect a reconciliation of the total
number of Homes Passed in all Committed Systems (in excess of 750,000) under the
Network Agreement, the number of outstanding Class A Warrants and Class B
Warrants, and the number of Warrant Shares theretofore issued upon exercise of
the Class A Warrants and Class B Warrants. If such reconciliation reveals that
the total number of Homes Passed in all Committed Systems (in excess of 750,000)
under the Network Agreement (after adding back Homes Passed in Committed Systems
and additional Committed Systems withdrawn from the Network Agreement pursuant
to Sections 18.1, 18.2, 18.3, and 18.6 of the Network Services Agreement) is
different than the total number of all outstanding Class A Warrants
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and Class B Warrants and Warrant Shares, then the total number of Class A
Warrants and/or Class B Warrants will be adjusted upward or downward, as the
case may be. If the number of unexercised Class A Warrants and/or Class B
Warrants then held by Vulcan is insufficient to cover any shortfall, then Vulcan
(or its permitted transferee) shall return to HSAC the number of Warrant Shares
necessary to meet such shortfall, and HSAC shall refund to Vulcan the exercise
price paid by Vulcan for such returned Warrant Shares.
6.4 In the event that the parties cannot agree on the Launch Date
for a Committed System for which Class A Warrants or Class B Warrants are
exercisable under Section 6.1.1 or 6.1.2 within the period specified in Section
2.4 of the Network Agreement, then the Class A Warrant Date and or Class B
Warrant Date (as applicable) for the Homes Passed in such Committed System shall
be extended by the time period beginning on the date on which the Launch Date
for such Committed System should have been designated pursuant to Section 2.2 of
the Network Agreement and the date on which HSAC actually commences revenue
billing for Data Subscribers in such Committed System.
6.5 HSAC shall have the right to review and audit Operators' books
and records relating to the Committed Systems and Homes Passed as of July 31,
2001 and July 31, 2003 for purposes of confirming the number of Homes Passed for
which Class A Warrants and Class B Warrants are exercisable (and Warrant Shares
that have been issued upon exercise thereof) hereunder.
7. OPTION TO WITHDRAW CABLE SYSTEMS. Operators shall have the right to
terminate the Network Agreement and/or withdraw Committed Systems from this
Agreement and the Network Agreement in accordance with the provisions of
Sections 18 and 19 of the Network Agreement.
8. CONTENT PROVISIONING.
8.1 All of the rights, terms and conditions of this Agreement are
expressly conditioned upon the parties entering into the Content Agreement. The
obligations of the parties with respect to the Vulcan Content (as defined in the
Content Agreement) shall apply to all Data Subscribers in the Committed Systems
and to every other HSAC data and/or Internet customer located in any geographic
region or market, regardless of whether such customer is a customer of an
Operator or of an MSO or Cable System operated by an unrelated party, subject to
and in accordance with the terms of the Content Agreement.
8.2 Until such time as Operators develop Content for a Startup Page
and a Web Site, HSAC shall create a temporary Operator-branded Startup Page
("Temporary Startup Page") and Web Site ("Temporary Web Site") for each
Committed System and orchestrate local community Content. Such Temporary Startup
Page and Temporary Web Site shall comply with the branding and all other
requirements set forth in Section 7.6.5 in the Network Agreement). All "net"
revenues (i.e., gross advertising and other sales revenues less any ad agency
charges, or commissions) resulting from advertising revenues, E-commerce and any
other revenues generated by or from such Temporary Startup Page and Temporary
Web Site (including any fees for links) shall be divided evenly between HSAC and
the applicable Committed System's Operator.
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8.3 The Content on such Temporary Startup Page and Web Site shall
be replaced upon reasonable notice to HSAC from that Committed System's Operator
with Content designated by Vulcan and/or the applicable Committed System's
Operator for a Startup Page and Web Site. HSAC shall provide every Committed
System's Operator with an easy and inexpensive means to constantly update and
modify the Content for such Operator's Startup Page and Web Site. All revenues
resulting from advertising revenues, E-commerce and any other ancillary revenues
generated by or from any Vulcan- or Operator-controlled or designated Content,
Startup Page, or Web Site (including any fees for links) shall be paid to or
retained by Vulcan or the applicable Committed System's Operator, and no portion
of such revenues shall be paid to, retained by or shared with HSAC. Conversely,
all revenues generated from HSAC's Web Site (as defined in the Content
Agreement) resulting from advertising revenues, E-commerce, other HSAC Content
(as defined in the Content Agreement), and any other revenues (including any
fees for links) generated from such HSAC's Web Site, shall be paid to or
retained by HSAC and no portion of such revenues shall be paid to, retained by
or shared with any Vulcan or any Operator.
9. [Intentionally Omitted]
10. COMPETITIVE SERVICES.
10.1 HSAC shall have the right to market and deploy data
connectivity services using analog modems that are commercially available as of
the Effective Date and do not operate at speeds greater than 128 KBPS to
"dial-up" residential and commercial customers in Committed System market areas
that do not qualify as Homes Passed and do not utilize the Operator's RF
Plant/head-end equipment and/or the HSAC Network Equipment. CONFIDENTIAL
MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION. HSAC shall retain
such "dial up" customers in the event of any withdrawal of Committed Systems
from the Network Agreement or the termination of the Network Agreement by
Operator; provided, that if any Operator expands/upgrades its system such that
HSAC's "dial-up" customers eventually qualify as Homes Passed or Cable
Subscribers, HSAC shall make commercially reasonable efforts to enroll such
Cable Subscribers as Data Subscribers.
10.2 Unless an Operator gives its prior written approval, HSAC
agrees that it shall not compete with Operators, deploy new dial-tone or xDSL
services, perform HSAC Services, or perform any Optional Services in any market
in which any of Operators or any affiliate owns, controls or operates a Cable
System (regardless of whether such Cable System is a Committed System) or
competes as CLEC. However, HSAC shall have the right without Operator's prior
written approval to develop and offer Internet Access and related services for
MSO's not affiliated with any of Operators in those market areas where no
Operator or any affiliate owns, controls and/or operates a Cable System or
competes as a CLEC. If such area eventually falls within or overlaps a market in
which an Operator or any affiliate owns, controls and/or operates a Cable
System, HSAC shall not be required to abandon or curtail its efforts with
respect to any its then existing deployments of connectivity services.
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10.3 Unless an Operator gives its prior written approval in regard
to a particular Committed System, HSAC shall not deploy new dial-tone or xDSL
services in the market areas of such Committed System; provided, that HSAC shall
not be required to abandon or curtail its efforts with respect to any existing
deployments of competing connectivity services which pre-date the Effective
Date, so long as HSAC has provided Operators with a detailed list of such
dial-tone or xDSL services before the Effective Date.
10.4 HSAC shall not deploy Worldgate(R), WebTV(R), Optional
Services, or VBI (video blanking interval), digital TV products in the market
areas of any Committed Systems or other areas in which any Operator operates a
Cable System.
10.5 HSAC's deployment of any Optional Service in the Committed
Systems or any products or services not specifically contemplated in this
Agreement in the Committed Systems is subject to agreement among or between the
parties on a case-by-case, system-by-system basis. The parties shall separately
negotiate the terms and conditions applicable to any such Optional Services on a
case-by-case basis.
10.6 HSAC acknowledges and agrees that, with respect to any Cable
Systems that are not Committed Systems hereunder, there are and shall be no
restrictions or limitations on the ability of any Operator to compete with HSAC,
to engage any competitor(s) of HSAC to provide the HSAC Services (regardless of
the Method of Access) or to enter into any other business arrangements with
competitor(s) of HSAC.
11. TERM. The term ("Term") of this Agreement shall commence effective
as of the Effective Date and shall continue until midnight of the day HSAC
ceases to provide HSAC Services to Data Subscribers in any geographic area or
region.
12. REPRESENTATIONS AND WARRANTIES.
12.1 HSAC hereby represents and warrants to Operators as follows:
12.1.1 HSAC is a corporation duly organized, validly existing
and in good standing under the laws the State of Delaware and is duly qualified
to do business as a foreign corporation in all jurisdictions in which it
conducts its business.
12.1.2 HSAC's execution, delivery and performance of this
Agreement and each of the Other Agreements have been duly authorized by all
requisite corporate action, and this Agreement and each of the Other Agreements
constitutes a legally valid and binding obligation of HSAC enforceable in
accordance with its respective terms, except as may be affected by laws relating
to bankruptcy or insolvency or the application by a court of equitable
principles.
12.1.3 HSAC's execution, delivery and performance of this
Agreement and each of the Other Agreements shall not violate, conflict with
and/or result in a breach or default under HSAC's Certificate of Incorporation,
bylaws or other charter documents, or any judgment, award, decree, agreement or
other instrument to which HSAC is a party.
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12
12.1.4 No approval, authorization, consent, or order or filing
with any court, or governmental or administrative agency or any third party is
required in order for HSAC to enter into, deliver and perform this Agreement,
each of the Other Agreements and the transactions contemplated herein and
therein.
12.1.5 HSAC either owns or has properly licensed all rights
under patent, copyright, trademark, trade secret and other domestic and foreign
intellectual property laws (collectively, "Intellectual Property Laws") that are
necessary or required to perform the Full HSAC Services Roll-Out, the HSAC
Services and the other services to be performed by HSAC hereunder and under the
Network Agreements, including, without limitation, all rights under Intellectual
Property Laws relating to any equipment (including, without limitation, the HSAC
Network Equipment), software or Content that HSAC shall use or shall provide in
connection with the Full HSAC Services Roll-Out, the HSAC Services and the other
services to be performed by HSAC hereunder and under the Network Agreements.
HSAC's provision and/or operation of the Full HSAC Services Roll-Out, the HSAC
Services and the other services to be performed by HSAC hereunder and under the
Network Agreements shall not violate or infringe any Intellectual Property Laws
or violate or infringe any rights of third parties.
12.1.6 To the best of its knowledge, HSAC has taken all
actions necessary and appropriate to assure that there shall be no material
adverse change to its business or electronic systems or material interruptions
in the operation and delivery of HSAC Service as provided in this Agreement
(aside from normal data packet delays, distortions, and losses (i) on the
Internet backbone, (ii) during transport to the Internet Backbone on
telecommunication lines leased from a third party, (iii) or during transport
from the customer to HSAC over a coaxial cable or fiber optic line) by reason of
the advent of the year 2000, including, without limitation, that all its
computer-based systems, embedded microchips and other data processing
capabilities have been designed or modified and fully tested in such a manner
that such computer-based systems, embedded microchips and other data processing
capabilities will not generate any invalid and/or incorrect date-related results
or cause any of the problems commonly referred to as "Year 2000 problems" and
will, without interruption or manual intervention, continue to operate
consistently, predictably and accurately and in accordance with all of the
requirements of this Agreement, including without limitation, meeting all
specifications and/or functionality and performance requirements, when used
during any year prior to, during or after the calendar year 2000. HSAC does not
warrant that interruptions in HSAC Service will not occur due to the network or
systems failures of other parties, including utilities and phone services,
caused by "Year 2000 problems."
12.2 Each of Vulcan, Charter, and Marcus hereby represents and
warrants, severally, but not jointly, and only as to itself, to HSAC as follows:
12.2.1 Each of them is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation and is duly qualified to do business as a foreign corporation in
all jurisdictions in which it conducts its business.
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13
12.2.2 Each of their execution, delivery and performance of
this Agreement and each of the Other Agreements have been duly authorized by all
requisite corporate action, and this Agreement and each of the Other Agreements
constitutes a legally valid and binding obligation of each of them enforceable
in accordance with its respective terms, except as may be affected by laws
relating to bankruptcy or insolvency or the application by a court of equitable
principles.
12.2.3 Each of their execution, delivery and performance of
this Agreement and each of the Other Agreements shall not violate, conflict with
and/or result in a breach or default under their respective certificates of
incorporation, bylaws or other charter documents, or any judgment, award,
decree, agreement or other instrument to which any of them is a party.
12.2.4 No approval, authorization, consent, or order or filing
with any court, or governmental or administrative agency or any third party is
required in order for any of them to enter into, deliver and perform this
Agreement, each of the Other Agreements and the transactions contemplated herein
and therein.
12.2.5 The franchise agreements with the various franchising
authorities with jurisdiction over the Committed Systems do not prohibit any of
them from offering the HSAC Services directly or through HSAC under this
Agreement. Each of them shall bear all costs associated with obtaining any such
"data over cable" franchise rights and authorizations (if so needed), pay any
franchise taxes related or applicable thereto, and indemnify HSAC with respect
to any such costs or taxes, whether or not retroactively assessed.
12.2.6 Each of them either owns or has properly licensed all
rights under Intellectual Property Laws that are necessary or required for HSAC
to utilize such party's trademarks, service marks, or brands and the marketing
and promotional materials as permitted hereunder, and HSAC's use of the
foregoing shall not violate or infringe any Intellectual Property Laws or
intellectual property rights of third parties.
12.2.7 To the best of their respective knowledge, they have
taken all actions necessary and appropriate to assure that there shall be no
material adverse change to their respective business or electronic systems or
material interruptions in the operation and delivery of HSAC Services as
provided in this Agreement (aside from normal data packet delays, distortions,
and losses (i) on the Internet backbone, (ii) during transport to the Internet
Backbone on telecommunication lines leased from a third party, (iii) or during
transport from the customer to HSAC over a coaxial cable or fiber optic line) by
reason of the advent of the year 2000, including, without limitation, that all
their respective computer-based systems, embedded microchips and other data
processing capabilities have been designed or modified and fully tested in such
a manner that such computer-based systems, embedded microchips and other data
processing capabilities will not generate any invalid and/or incorrect
date-related results or cause any of the problems commonly referred to as "Year
2000 problems" and will, without interruption or manual intervention, continue
to operate consistently, predictably and accurately and in accordance with all
of the requirements of this Agreement, including without limitation, meeting all
specifications and/or functionality and performance requirements, when used
during any year prior to,
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14
during or after the calendar year 2000. Operator does not warrant that
interruptions in HSAC Services will not occur due to the network or systems
failures of other parties, including utilities and phone services, caused by
"Year 2000 problems.".
13. INDEMNITY.
13.1 HSAC will indemnify, defend, and hold harmless Operators and
their respective affiliates, agents, successors, assigns, representatives,
officers, and directors from and against any liabilities, lawsuits, penalties,
claims, demands, awards, judgments, settlements, costs, and expenses (including,
without limitation, actual reasonable attorneys' fees and expenses on account
thereof) that arise or result from: (i) the breach by HSAC of any of its
representations, warranties, or covenants hereunder or under any of the Other
Agreements, or (ii) HSAC's operation, management and provision of the HSAC
Services, or failure of same, including, without limitation, in any such case
any liabilities, lawsuits, penalties, or claims related to defamation,
infringement, criminal activities, and fraud, except to the extent that any such
liabilities, lawsuits, penalties, claims, demands, awards, judgments,
settlements, costs or expenses arise from Operators' operation, management, and
maintenance of any Operator's RF Plant.
13.2 Each of Charter and Marcus (severally and not jointly, and
only as to itself) will indemnify, defend, and hold harmless HSAC and its
affiliates, agents, successors, assigns, representatives, officers, and
directors from and against any liabilities, lawsuits, penalties, claims,
demands, awards, judgments, settlements, costs, and expenses (including, without
limitation, reasonable attorneys' fees and expenses on account thereof) that
arise or result from: (i) the breach by the indemnifying party of any of its
representations, warranties or covenants hereunder, or (ii) the indemnifying
party's operation, management, and maintenance of the indemnifying party's RF
Plant, including, without limitation, in any such case, any liabilities,
lawsuits, penalties, or claims related to defamation, infringement, criminal
activities, and fraud, except to the extent that any such liabilities, lawsuits,
penalties, claims, demands, awards, judgments, settlements, costs or expenses
arise from HSAC's operation, management and provision of the HSAC Services.
13.3 HSAC agrees to indemnify, defend, and hold harmless Operators
and their respective affiliates, agents, successors, assigns, representatives,
officers, and directors, and each of Charter and Marcus (severally and not
jointly, and only as to itself) agrees to indemnify, defend, and hold harmless
HSAC and its affiliates, agents, successors, assigns, representatives, officers,
and directors, from and against any liabilities, lawsuits, penalties, claims,
demands, awards, judgments, settlements, costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses on account thereof) that may
be made by any third party for injuries, including death to persons, resulting
from the indemnifying party's negligent or willful acts or omissions or those of
persons employed by the indemnifying party, its agents, or subcontractors. Each
party respectively agrees to notify the other parties promptly of any written
claims or demands against the indemnified party for which the indemnifying party
is deemed responsible hereunder.
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15
14. LIMITATION OF LIABILITY; INSURANCE.
14.1 EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS DETAILED IN SECTION
13 ABOVE, IN NO EVENT WILL EITHER PARTY HERETO BE LIABLE TO THE OTHER PARTY FOR
ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (EVEN IF THAT PARTY HAD BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATED TO A BREACH
OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION LOSS OF REVENUE OR ANTICIPATED
PROFITS OR LOST BUSINESS.
14.2 At all times during the Term, HSAC shall maintain (i)
appropriate policies of general liability, casualty, and business interruption
insurance, each with aggregate coverage of at least two million dollars
($2,000,000); (ii) appropriate workers compensation insurance to cover HSAC's
employees against injury to themselves or others and casualty accidents while
working on Operators' premises; and (iii) appropriate insurance policies with at
least two million dollars ($2,000,000) of coverage per incident covering against
claims for intellectual property infringement. All such HSAC insurance policies
shall name Operators as additional insured parties.
14.3 Each of HSAC and Operators acknowledges that the rights
granted, and services to be provided to each other hereunder are of a special,
unique, unusual, extraordinary, and intellectual character, giving them peculiar
value, the loss of which cannot be reasonably or adequately compensated in
damages, and that an actual or threatened material breach by either party
hereunder would cause the other party irreparable injury and damage. Subject to
Section 9.2.2 off the Content Agreement, each party agrees that, if it commits
or is about to commit a material breach of this Agreement, the other party will
be entitled to injunctive or other equitable relief as a remedy for any such
actual or threatened material breach, without the requirement to post any bond
or other security therefor.
15. MISCELLANEOUS PROVISIONS.
15.1 OBLIGATIONS TO SURVIVE TERMINATION. The parties recognize and
agree that the obligations of the parties hereto under Sections 1, 5, 6, 12, 13,
14, and this Section 15 of this Agreement shall survive the cancellation,
termination, or expiration of this Agreement.
15.2 CLOSING. The closing of this Agreement and the transactions
contemplated herein shall take place at such time and place as the parties may
agree.
15.3 NOTICES. All notices, requests, demands, and other
communications ("Notices") required or permitted hereunder will be in writing,
in English, will refer to this Agreement, and may be delivered personally or by
overnight air courier guaranteeing next-day delivery, or sent by certified or
registered mail, return receipt requested, or by facsimile to such party at its
address set forth below (or such other address as may be designated by notice
given in accordance with this Section). The date of personal delivery or
facsimile, the next day if by express delivery, or the date five (5) days after
certified or registered mailing
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16
will be deemed the date on which such Notice is effective. Notices will be sent
to each party at the following addresses:
If to HSAC: High Speed Access Corp.
0000 Xxxx Xxxxxx Xxx., Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx, Esq.
General Counsel (fax: 000-000-0000)
With a copy to: Xxxxxxx Xxxxxxxxx, Esq.
Xxxxx Xxxxxxx & Xxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000 (fax: 000-000-0000)
If to Vulcan: Vulcan Ventures, Incorporated
000 000xx Xxxxxx XX
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx (fax: 000-000-0000)
With a copy to: Irell & Xxxxxxx, LLP
1800 Avenue of the Stars
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxx, Esq. (fax: 000-000-0000)
If to Charter: Charter Communications, Inc.
00000 Xxxxxxxxxxx Xxx., Xxxxx 000
Xx. Xxxxx, XX 00000
Attn: Xxxxxx Xxxxx (fax: 000-000-0000)
With a copy to: Xxxxxx X. Xxxx, Esq. (fax: 000-000-0000)
00000 Xxxxxxxxxxx Xxx., Xxxxx 000
Xx. Xxxxx, XX 00000
If to Marcus: Marcus Cable, Inc.
0000 Xxxxxx Xxxxx Xxxx., Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxxx Xxxxx (314-965-8793)
With a copy to: Xxxxxx X. Xxxx, Esq. (fax: 000-000-0000)
00000 Xxxxxxxxxxx Xxx., Xxxxx 000
Xx. Xxxxx, XX 00000
15.4 ASSIGNMENT. Except as set forth below, HSAC shall not have the
right to assign this Agreement to any person or entity without the prior written
consent of Operators, except it may without Operator's consent assign its
rights, but not its obligations, to a subsidiary of HSAC, provided that no such
assignment will relieve HSAC of liability for its obligations hereunder. Any
Operator may assign this Agreement to any person or entity, and this Agreement
shall be binding and inure to the benefit of such Operator's successors and
assigns. Vulcan may assign its rights in the Class A Warrants and Class B
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17
Warrants only to the extent permitted in the Class A Warrant or Class B Warrant
(as applicable). Each party shall be permitted to assign this Agreement and
grant a security interest in its contract rights and tangible/intangible
property interests (including the HSAC Network Equipment and Home Equipment
Packages owned by such party) arising under this Agreement, the Network
Agreements and Other Agreements for purposes of securing financing from its
commercial lender(s). However, as a condition to doing so, HSAC shall be
obligated to obtain non-disturbance agreements in form and substance
satisfactory to Operators from each such lender under which such lender agrees
that, notwithstanding such lender's exercise of its rights as a secured
creditor, such lender and its assigns shall not disturb, affect, or interfere
with HSAC's provision of the HSAC Services hereunder. All assignments in
contravention of this Section 15.4 shall be null and void and of no force or
effect. Either party shall provide the other party with thirty (30) days prior
written notice of any permitted assignment hereunder.
15.5 AMENDMENT AND WAIVER. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of all of the parties unless
otherwise expressly permitted in this Agreement, and any written waiver by any
party of any breach of any term or condition shall not be deemed to be a waiver
of any subsequent or other breach, term or condition of this Agreement.
15.6 CONFIDENTIAL INFORMATION.
15.6.1 Each party agrees that it shall not, during or for a
period of five (5) years after the Term of this Agreement, permit the
duplication, use, or disclosure of any Confidential Information to any person
(other than an employee, agent, or representative of the other party who must
have such information for the performance of its obligation hereunder), unless
such duplication, use or disclosure is specifically authorized by the other
party in writing. Each party shall (i) not disclose any Confidential Information
to any third person without the express written consent of the other party; (ii)
not use, directly, indirectly, or in concert with any other person, any
Confidential Information for any purpose other than the performance of their
obligations under this Agreement; (iii) use reasonable diligence, and in no
event less than that degree of care which such party uses in respect to its own
Confidential Information of like nature, to prevent the unauthorized disclosure
or reproduction of such information. Without limiting the generality of the
foregoing, to the extent that this Agreement permits the copying of Confidential
Information, all such copies shall bear the same confidentiality notices,
legends, and intellectual property rights designations that appear in the
original versions.
15.6.2 The confidentiality obligations set forth in Section
15.6.1 shall not be applicable to Confidential Information which is in the
public domain; information known to the recipient party as of the date of this
Agreement as indicated by the recipient's written records, unless the recipient
party agreed to keep such information in confidence at the time of its receipt;
information properly obtained hereafter from a source who is not under an
obligation of confidentiality with respect to such information; information that
is independently developed by the receiving party through persons who have not
had, either directly or indirectly, access or knowledge of such Confidential
Information which can be verified by independent evidence; or information that
that the
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18
receiving party is obligated to be produced by law, provided that any party that
is so ordered to produce Confidential Information shall give notice thereof to
the other party and cooperate reasonably with any attempt by the notified party
to enjoin its disclosure.
15.6.3 Apart from HSAC's obligations to Operators under this
Section 15 concerning confidentiality, HSAC shall have no obligation to delete
or destroy Operator's information, including Operator's Customer Lists or other
Data Subscriber listings, from its computer systems or backup and archival
libraries until such time as HSAC's regular procedures for elimination of such
data would normally delete or destroy such information. Following a Data
Subscriber disconnect, an Operator may require the elimination of its data
maintained within HSAC's backup and archival libraries prior to the time the
data would normally be deleted or destroyed by HSAC, and such Operator shall pay
for reasonable expenses associated with the early deletion or destruction of all
such data.
15.7 NO JOINT VENTURE OR PARTNERSHIP. Nothing contained herein
shall be deemed to create a relationship of joint venture, associates, principal
and agent or partnership between or among the parties hereto and no party shall
hold itself out to the contrary. Each party is acting as principal hereunder and
is responsible for their own income tax consequences.
15.8 SECTION HEADINGS. The section headings contained in this
Agreement are inserted as a matter of convenience and shall not affect in any
way the construction of the terms of this Agreement.
15.9 GOVERNING LAW. This Agreement and the rights and obligation
of the parties hereunder shall be governed by and interpreted in accordance with
the laws of the State of Delaware (without reference to any conflicts of law
rules) applicable to contracts entered into and fully performed therein.
15.10 EQUAL CONSTRUCTION. This Agreement is negotiated and drafted
by parties equally represented by counsel and no clause or provision herein
should be construed as having been drafted other than equally by both parties.
15.11 [Intentionally Omitted]
15.12 ATTORNEY'S FEES. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement or any other
agreements contemplated herein, each party shall pay its own fees, costs, and
disbursements in connection therewith.
15.13 SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
the remaining provisions.
15.14 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, any of which shall be deemed an original, but all of which taken
together shall constitute one and the same Agreement. This Agreement may be
executed and delivered by facsimile.
15.15 RIGHTS AND REMEDIES CUMULATIVE. The rights and remedies
provided by this Agreement and Annexes hereto are cumulative and the use of any
one right
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19
or remedy by any party shall not preclude or waive the right to use any or all
other remedies. Such rights and remedies are given in addition to any other
rights the parties may have by law, statute, ordinance, or otherwise.
15.16 FURTHER ASSURANCES. Each party hereto agrees to execute such
additional documents and schedules and take such other actions as the other
party or parties may reasonable request to consummate the transactions
contemplated by this Agreement and otherwise as may be necessary to effectively
carry out the terms and provisions of this Agreement.
15.17 PRESS RELEASES. Except as required by law, none of the
parties shall issue any public statements or press releases pertaining to the
transactions contemplated hereby without the consent of the other parties
hereto.
15.18 INCORPORATION BY REFERENCE OF ANNEXES; ENTIRE AGREEMENT. This
Agreement and the Annexes hereto set forth the entire agreement between the
parties hereto and any parties who have in the past or who are now representing
either of the parties hereto. This Agreement supersedes all prior oral or
written understandings and communications between the parties and no other oral
or written representations shall apply.
[The rest of this page is left intentionally blank.]
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20
IN WITNESS WHEREOF, Vulcan, Marcus, Charter, and HSAC have each caused
this Agreement to be executed by a duly authorized officer effective as of the
day and year set forth in the preamble hereto.
VULCAN VENTURES, INCORPORATED
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
------------------------------
Title: Vice President
------------------------------
Date:
------------------------------
CHARTER COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxx
------------------------------
Name: Xxxxxx X. Xxxx
------------------------------
Title: Senior Vice President
------------------------------
Date:
------------------------------
MARCUS CABLE, INC.
By: /s/ Xxxxxx X. Xxxx
------------------------------
Name: Xxxxxx X. Xxxx
------------------------------
Title: Senior Vice President
------------------------------
Date:
------------------------------
HIGH SPEED ACCESS CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
------------------------------
Title: Vice Chairman
------------------------------
Date:
------------------------------
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