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STOCK PURCHASE AGREEMENT

Stock Purchase Agreement

STOCK PURCHASE AGREEMENT | Document Parties: Ascent Entertainment Group, Inc | Liberty Media Corporation | Liberty Satellite  Technology, Inc | LODGENET ENTERTAINMENT CORPORATION | On Command Corporation You are currently viewing:
This Stock Purchase Agreement involves

Ascent Entertainment Group, Inc | Liberty Media Corporation | Liberty Satellite Technology, Inc | LODGENET ENTERTAINMENT CORPORATION | On Command Corporation

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Title: STOCK PURCHASE AGREEMENT
Governing Law: Delaware     Date: 3/14/2007
Industry: Broadcasting and Cable TV     Law Firm: Leonard Street;Sherman Howard     Sector: Services

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Exhibit 10.34

EXECUTION COPY

STOCK PURCHASE AGREEMENT

by and among

LODGENET ENTERTAINMENT CORPORATION

and

LIBERTY SATELLITE & TECHNOLOGY, INC.

and

LIBERTY MEDIA CORPORATION

December 13, 2006

 

 

 

TABLE OF CONTENTS

 

 

 

 

 

 

 

 

 

 

 

 

Page

ARTICLE I DEFINITIONS

 

 

1

 

Section 1.1.

 

Definitions.

 

 

1

 

Section 1.2.

 

Tax Terms.

 

 

8

 

Section 1.3.

 

Terms Generally.

 

 

8

 

ARTICLE II PURCHASE AND SALE OF SHARES; CLOSING

 

 

9

 

Section 2.1.

 

Purchase and Sale of Shares.

 

 

9

 

Section 2.2.

 

Purchase Price.

 

 

9

 

Section 2.3.

 

Adjustment.

 

 

9

 

Section 2.4.

 

Closing.

 

 

11

 

Section 2.5.

 

Closing Deliveries.

 

 

11

 

Section 2.6.

 

Stock Adjustment.

 

 

12

 

ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER AND LIBERTY REGARDING THE COMPANY AND ITS SUBSIDIARIES

 

 

12

 

Section 3.1.

 

Organization, Qualification and Corporate Power.

 

 

12

 

Section 3.2.

 

Capitalization.

 

 

12

 

Section 3.3.

 

Subsidiaries and Equity Affiliates.

 

 

13

 

Section 3.4.

 

Financial Statements.

 

 

13

 

Section 3.5.

 

Assets and Liabilities of the Company.

 

 

14

 

Section 3.6.

 

No Undisclosed Liabilities.

 

 

15

 

Section 3.7.

 

Noncontravention; Consents.

 

 

15

 

Section 3.8.

 

Compliance with Legal Requirements.

 

 

15

 

Section 3.9.

 

Title to Assets.

 

 

15

 

Section 3.10.

 

Intellectual Property.

 

 

16

 

Section 3.11.

 

Real Property; Real Property Leases.

 

 

16

 

Section 3.12.

 

Contracts.

 

 

17

 

Section 3.13.

 

Litigation.

 

 

19

 

Section 3.14.

 

Environmental, Health, and Safety Matters.

 

 

19

 

Section 3.15.

 

Employees.

 

 

20

 

Section 3.16.

 

Labor Relations.

 

 

20

 

Section 3.17.

 

Employee Benefits.

 

 

20

 

Section 3.18.

 

Insurance.

 

 

21

 

Section 3.19.

 

Related Party Transactions.

 

 

22

 

Section 3.20.

 

Brokers’ Fees.

 

 

22

 

Section 3.21.

 

Absence of Certain Changes or Events.

 

 

22

 

ARTICLE IV ADDITIONAL REPRESENTATIONS AND WARRANTIES

 

 

22

 

Section 4.1.

 

Organization of Seller.

 

 

22

 

Section 4.2.

 

Authorization; Binding Effect.

 

 

23

 

Section 4.3.

 

Noncontravention; Consents.

 

 

23

 

Section 4.4.

 

Shares.

 

 

23

 

Section 4.5.

 

Brokers’ Fees.

 

 

23

 



i

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Page

Section 4.6.

 

Investment Intent.

 

 

23

 

Section 4.7.

 

Disclosure of Information.

 

 

24

 

Section 4.8.

 

Accredited Investor.

 

 

24

 

Section 4.9.

 

Restricted Securities.

 

 

24

 

ARTICLE V REPRESENTATIONS AND WARRANTIES OF BUYER

 

 

24

 

Section 5.1.

 

Organization of Buyer.

 

 

24

 

Section 5.2.

 

Authorization; Binding Effect; Financial Capability.

 

 

24

 

Section 5.3.

 

Noncontravention; Consents.

 

 

24

 

Section 5.4.

 

Investment Intent.

 

 

25

 

Section 5.5.

 

Disclosure of Information.

 

 

25

 

Section 5.6.

 

Accredited Investor.

 

 

25

 

Section 5.7.

 

Restricted Securities.

 

 

25

 

Section 5.8.

 

Certain Proceedings.

 

 

25

 

Section 5.9.

 

Brokers’ Fees.

 

 

25

 

Section 5.10.

 

Delivery of Share Consideration.

 

 

25

 

Section 5.11.

 

SEC Filings; Financial Information.

 

 

26

 

ARTICLE VI PRE-CLOSING COVENANTS

 

 

26

 

Section 6.1.

 

Commercially Reasonable Efforts.

 

 

26

 

Section 6.2.

 

Notices and Consents.

 

 

27

 

Section 6.3.

 

Operation of Business.

 

 

27

 

Section 6.4.

 

Access and Investigation.

 

 

28

 

Section 6.5.

 

Notification.

 

 

29

 

Section 6.6.

 

Subsequent Financial Statements.

 

 

29

 

Section 6.7.

 

Subsequent Filings.

 

 

29

 

Section 6.8.

 

Non-Solicitation.

 

 

29

 

Section 6.9.

 

Assistance with Financing.

 

 

30

 

Section 6.10.

 

Assistance with Acquisition of Minority Ownership of THN.

 

 

30

 

ARTICLE VII OTHER MATTERS

 

 

31

 

Section 7.1.

 

Understanding Regarding Disclaimer of Warranties of Buyer.

 

 

31

 

Section 7.2.

 

Understanding Regarding Disclaimer of Warranties of Seller.

 

 

31

 

Section 7.3.

 

HSR Act Filings.

 

 

32

 

Section 7.4.

 

Special Actions.

 

 

32

 

Section 7.5.

 

Confidentiality.

 

 

32

 

Section 7.6.

 

Employee Matters.

 

 

33

 

Section 7.7.

 

Further Cooperation.

 

 

36

 

Section 7.8.

 

Non-Disparagement.

 

 

36

 

Section 7.9.

 

Company Audited Financial Statements.

 

 

37

 

ARTICLE VIII CONDITIONS TO CLOSING

 

 

37

 

Section 8.1.

 

Conditions to Obligation of Buyer.

 

 

37

 

Section 8.2.

 

Conditions to Obligation of Seller.

 

 

39

 

ARTICLE IX TAX MATTERS

 

 

40

 

Section 9.1.

 

Tax Definitions.

 

 

40

 

Section 9.2.

 

Tax Representations.

 

 

41

 

Section 9.3.

 

Tax Covenants.

 

 

43

 



ii

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Page

Section 9.4.

 

Tax Sharing Agreements.

 

 

43

 

Section 9.5.

 

Tax Refunds and Credits.

 

 

43

 

Section 9.6.

 

Cooperation on Tax Matters.

 

 

43

 

Section 9.7.

 

Certain Taxes and Fees.

 

 

44

 

ARTICLE X TERMINATION

 

 

44

 

Section 10.1.

 

Termination of Agreement.

 

 

44

 

Section 10.2.

 

Termination Date.

 

 

45

 

Section 10.3.

 

Effect of Termination.

 

 

45

 

ARTICLE XI INDEMNIFICATION

 

 

46

 

Section 11.1.

 

Survival.

 

 

46

 

Section 11.2.

 

General Indemnification.

 

 

47

 

ARTICLE XII MISCELLANEOUS

 

 

52

 

Section 12.1.

 

Public Announcements.

 

 

52

 

Section 12.2.

 

No Third-Party Beneficiaries.

 

 

52

 

Section 12.3.

 

Successors and Assigns.

 

 

52

 

Section 12.4.

 

Entire Agreement.

 

 

53

 

Section 12.5.

 

Notices.

 

 

53

 

Section 12.6.

 

Governing Law; Jurisdiction.

 

 

54

 

Section 12.7.

 

Amendments and Waivers.

 

 

54

 

Section 12.8.

 

Severability.

 

 

54

 

Section 12.9.

 

Expenses.

 

 

54

 

Section 12.10.

 

Construction.

 

 

54

 

Section 12.11.

 

Incorporation of Exhibits and Schedules.

 

 

55

 

Section 12.12.

 

Headings.

 

 

55

 

Section 12.13.

 

Facsimile; Counterparts Signatures.

 

 

55

 



iii

 

 

LIST OF SCHEDULES

 

 

Schedules

3.3 Subsidiaries and Equity Affiliates

3.7 Notices and Consents

3.9 Permitted Encumbrances

3.10 Intellectual Property

3.11 Real Property Leases

3.12 Contracts

3.17(a) Employee Benefit Plans

3.17(c) Multiemployer Plans

3.17(g) Non-US Plans

3.18 Insurance

3.19(a) Contracts and Arrangements Involving Related Parties

3.19(b) Master Purchasing Arrangements

5.11 Current Filings

6.3 Permitted Actions by Seller, the Company and its Subsidiaries

7.6 Employee Matters

8.1(j) Required Content Agreements

9.2(c) Tax Consolidated Groups

9.4 Tax Sharing Agreements

Disclosure Schedule



iv

 

 

STOCK PURCHASE AGREEMENT

     This STOCK PURCHASE AGREEMENT (the " Agreement ") is entered into as of December 13, 2006 (the " Agreement Date "), by and among LodgeNet Entertainment Corporation, a Delaware corporation (" Buyer "), Liberty Satellite & Technology, Inc., a Delaware corporation (" Seller "), and Liberty Media Corporation, a Delaware corporation (" Liberty "). Buyer, Liberty and Seller are referred to individually as a " Party " and collectively as the " Parties ."

RECITALS

     A. Liberty owns 100% of the issued and outstanding shares of capital stock of Seller. Seller owns 100% of the issued and outstanding shares of capital stock of Ascent Entertainment Group, Inc., a Delaware corporation (the " Company "). The Company owns 100% of the issued and outstanding shares of capital stock of On Command Corporation, a Delaware corporation (" ONCO ").

     B. Seller desires to sell, and Buyer desires to purchase, 100% of the issued and outstanding shares (the " Shares ") of capital stock of the Company, for the consideration and on the terms and conditions set forth in this Agreement.

     C. Seller, Buyer and Liberty are concurrently executing the Stockholders Agreement between Seller, Buyer and Liberty, dated as of the date hereof.

      NOW, THEREFORE, in consideration of the mutual promises and covenants contained in this Agreement, and intending to be legally bound, the parties agree as follows:

ARTICLE I
DEFINITIONS

     Section 1.1.       Definitions . The following terms have the following meanings for purposes of this Agreement:

     " Affiliate " means, with respect to any Person, any other Person that, directly or indirectly, Controls or is Controlled by or is under common Control with such Person.

     " Agreement " has the meaning set forth in the preamble.

     " Agreement Date " has the meaning set forth in the preamble.

     " Antitrust Division " has the meaning set forth in Section 7.3.

     " Antitrust Law " means the Sherman Act, the Clayton Act, the HSR Act, the Federal Trade Commission Act, and all other federal, state and foreign statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition.

1

 

 

     " Ascent Intercompany Indebtedness " means accounts or other Liabilities between the Company and any Subsidiary of the Company or between any Subsidiaries of the Company.

     " Authorized Representatives " has the meaning set forth in Section 7.5.

     " Balance Sheet " has the meaning set forth in Section 3.4.

     " Balance Sheet Date " has the meaning set forth in Section 2.3(d).

     " Bank Commitment Letter " means the amended and restated bank facilities commitment letter, dated as of December 6, 2006, among Bear Stearns, Credit Suisse and Credit Suisse Securities (USA) LLC and Buyer, pursuant to which Bear Stearns, Credit Suisse and Credit Suisse Securities (USA) LLC have agreed, subject to the terms and conditions set forth therein, to provide or cause to be provided an aggregate of up to $475 million in financing under senior secured credit facilities of Buyer comprised of a revolving credit facility in a maximum principal amount of $50 million and $425 million in term loans, as it may be amended from time to time.

     " Bank Financing " has the meaning set forth in Section 6.9.

     " Bear Stearns " means, collectively, Bear, Stearns & Co. Inc and Bear Stearns Corporate Lending Inc.

     " Benefit Plans " has the meaning set forth in Section 3.17(a).

     " Business Day" means any day other than Saturday, Sunday or a day on which banking institutions in Denver, Colorado or Sioux Falls, South Dakota are required or authorized to be closed.

     " Buyer " has the meaning set forth in the preamble.

     " Buyer 401(k) Plan " has the meaning set forth in Section 7.6(f).

     " Buyer’s Fundamental Representations " has the meaning set forth in Section 11.1(a).

     " Buyer Indemnified Parties " has the meaning set forth in Section 11.2(a).

     " Buyer Tax Loss " has the meaning set forth in Section 11.2(a).

     " Cafeteria Plan " has the meaning set forth in Section 7.6(d).

     " Cash Consideration " has the meaning set forth in Section 2.2.

     " Closing " has the meaning set forth in Section 2.4.

     " Closing Date " has the meaning set forth in Section 2.4.

     " Closing Date Calculations " has the meaning set forth in Section 2.3(e).

     " Closing Purchase Price Adjustment " has the meaning set forth in Section 2.3(a).

2

 

 

     " Closing Working Capital " means the consolidated current assets of the Company and its Subsidiaries on the Closing Date (including cash) minus consolidated current liabilities of the Company and its Subsidiaries on the Closing Date, determined as set forth on Exhibit A attached hereto and in accordance with GAAP and consistent with the Financial Statements (except as set forth on Exhibit A).

     " COBRA " has the meaning set forth in Section 7.6(b).

     " Code " means the Internal Revenue Code of 1986, as amended.

     " Company " has the meaning set forth in Recital A.

     " Company Group " has the meaning set forth in Section 3.19.

     " Company Audited Financial Statements " has the meaning set forth in Section 6.6(b).

     " Company Unaudited Financial Statements " has the meaning set forth in Section 3.4.

     " Contracts " has the meaning set forth in Section 3.12.

     " Control " means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or partnership, membership or other ownership interests, by contract or otherwise.

     " Current Filings " has the meaning set forth in Section 5.11(b).

     " Disclosing Party " has the meaning set forth in Section 7.5.

     " Disclosure Schedule " has the meaning set forth in the introductory paragraph of Article III.

     " Encumbrance " means any charge, claim, community property interest, condition, equitable interest, mortgage, lien, option, pledge, security interest, right of first refusal, or other charge or restriction of any kind, including any restriction on use, voting, transfer, receipt of income, or exercise of any other attribute of ownership.

     " Environmental, Health, and Safety Requirements " means all federal, state, local and foreign statutes, regulations, ordinances and other provisions having the force or effect of law, all judicial and administrative orders and determinations, all contractual obligations and all common law concerning public health and safety, worker health and safety, and pollution or protection of the environment, including all those relating to the presence, use, production, generation, handling, transportation, treatment, storage, disposal, distribution, labeling, testing, processing, discharge, release, threatened release, control, or cleanup of any hazardous materials, substances or wastes, chemical substances or mixtures, pesticides, pollutants, contaminants, toxic chemicals, petroleum products or byproducts, asbestos, polychlorinated biphenyls, noise or radiation.

3

 

 

     " Equity Affiliates " means all Persons in which the Company or any Subsidiaries of the Company hold an equity interest that are not Subsidiaries of the Company that are accounted for under the equity method of accounting in accordance with GAAP.

     " ERISA " has the meaning set forth in Section 3.17(a).

     " ERISA Affiliate " has the meaning set forth in Section 3.17(a).

     " ERISA Plans " has the meaning set forth in Section 3.17(a).

     " Estimated Closing Working Capital " has the meaning set forth in Section 2.3(a).

     " Existing NDA " has the meaning set forth in Section 6.4.

     " Final Purchase Price Adjustment " has the meaning set forth in Section 2.3(b).

     " Financial Information " has the meaning set forth in Section 6.9.

     " Financial Statements " has the meaning set forth in Section 3.4.

     " FTC " has the meaning set forth in Section 7.3.

     " GAAP " means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board (and its predecessors), the American Institute of Certified Public Accountants and the Financial Accounting Standards Board that are applicable to the circumstances as of the date of determination, consistently applied.

     " Governmental Authority " means any court, arbitrator, administrative or other governmental department, agency, political subdivision, commission, authority or instrumentality in the United States or elsewhere.

     " HSR Act " means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.

     " Income Tax " has the meaning set forth in Section 9.1.

     " Indebtedness " means, with respect to any Person, without duplication (a) every Liability of such Person (excluding any Ascent Intercompany Indebtedness) (i) for borrowed money, (ii) evidenced by notes, bonds, debentures or similar instruments (whether or not negotiable), (iii) any amounts owing as deferred purchase price for property acquired, other than accounts payable on commercial terms, or (iv) any reimbursement of amounts actually drawn under letters of credit or similar facilities issued for the account of such Person, and (b) every Liability of any other Person of the kind described in the preceding clause (a) that such Person has guaranteed (other than any guarantee by the Company of any Liability of any Subsidiary of the Company and any guarantee by any Subsidiary of the Company of any Liability of any other Subsidiary of the Company), in each case only to the extent required pursuant to GAAP to be set forth as a liability on a balance sheet of such Person.

4

 

 

     " Indemnified Party " has the meaning set forth in Section 11.2(g).

     " Independent Accounting Firm " has the meaning set forth in Section 2.3(g).

     " Information Memorandum " has the meaning set forth in Section 9.1.

     " Intellectual Property " means (a) all patents and patent applications (including all provisional, divisionals, continuations, continuations in part, and reissues), inventions (patentable or unpatentable and whether or not reduced to practice), and business methods; (b) all registered and unregistered fictional business names, trade names, trademarks, service marks, trade dress, brands, slogans, logos, and registered domain names and all applications with respect to any of the foregoing; (c) all registered and unregistered copyrights in both published works and unpublished works and copyrightable subject matter, including software; and (d) all know-how, trade secrets, customer and vendor lists, software, technical information, data, process technology, plans, drawings, blueprints, processes, methods and techniques, research and development information, industry analyses, drawings, algorithms, source code and object code, etherware, specifications, designs, proposals, models, financial and accounting data, business and marketing plans, and all other confidential or proprietary information.

     " Interim Financial Statements " has the meaning set forth in Section 3.4.

     " Legal Requirement " means any federal, state, provincial, local, international, or other administrative order, law, ordinance, principle of common law, rule, regulation, statute or code.

     " Liability " means any liability (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, and whether liquidated or unliquidated), including any liability for Taxes.

     " Liberty " has the meaning set forth in the preamble.

     " Liberty 401(k) Plan " has the meaning set forth in Section 7.6(f).

     " Liberty Benefit Plans " has the meaning set forth in Section 7.6(a).

     " Liberty Group " has the meaning set forth in Section 3.19.

     " Liberty Intercompany Debt " has the meaning set forth in Section 8.1(f).

     " Losses " means any loss, Liability, action, cause of action, cost, damage or expense, Tax, penalty, or fine, in each case whether or not arising out of third party claims and including any interest, penalties, attorneys’, consultants’ and experts’ fees and expenses (including such attorneys’, consultants’ and experts’ fees and expenses incurred in connection with the enforcement of a party’s rights under this Agreement) and all amounts paid in investigation, defense or settlement of any of the foregoing after taking into account any monies actually received in respect thereof under a policy of insurance, under a contractual right of set-off or indemnity or otherwise.

5

 

 

     " Material Adverse Effect " means a material adverse effect on the financial condition, assets, business or results of operations of the Company and its Subsidiaries, taken as a whole, other than any such effect attributable to or resulting from (a) any matter contemplated by or disclosed in this Agreement, (b) the public announcement or consummation of the transactions contemplated by this Agreement, including loss of vendors, customers or employees resulting therefrom, or the compliance by any Party with its obligations under this Agreement, (c) any change in general economic conditions, financial market conditions or in conditions affecting the on premises telecommunications industry or hotel industry generally, whether locally, regionally or nationally, or (d) any act or omission taken with the prior written consent or at the specific written request of Buyer.

     " MFN Clause " has the meaning set forth in Section 3.12(b).

     " Non-US Plans " has the meaning set forth in Section 3.17(g).

     " Notifying Party " has the meaning set forth in Section 6.5.

     " Objection Notice " has the meaning set forth in Section 2.3(f).

     " ONCO " has the meaning set forth in Recital A.

     " ONCO Stock Plan " has the meaning set forth in Section 7.6(i).

     " Ordinary Course of Business " means the ordinary course of business of the Company or any Subsidiary, as applicable, consistent with past custom and practice and assuming rational decision-making based on the continued operations and capital investment decisions of the Company and its Subsidiaries as if ownership of the Company and its Subsidiaries were not being sold.

     " Party " or " Parties " has the meaning set forth in the preamble.

     " Permits " means all permits, licenses, authorizations, registrations, franchises, approvals, consents, certificates, variance and similar rights obtained or required to be obtained from any Governmental Authority.

     " Permitted Encumbrances " means (a) any restrictions under the Securities Act or any applicable state or foreign securities laws; (b) any Encumbrance for Taxes, fees, assessments or other governmental charges or levies, either not delinquent or being contested in good faith and for which the Company or any Subsidiary maintains adequate reserves on its books and records; (c) licenses or sublicenses granted or entered into in the Ordinary Course of Business and any interest or title of a licensor or licensee under any such license or sublicense; (d) leases or subleases entered into in the Ordinary Course of Business, including in connection with the leased personal property of the Company or any Subsidiary or Real Property Leases; (e) Encumbrances of carriers, warehousemen, mechanics, materialmen and landlords incurred in the Ordinary Course of Business for sums not overdue or being contested in good faith and for which the Company or any applicable Subsidiary maintains adequate reserves on its books and records; (f) Encumbrances incurred in the Ordinary Course of Business in connection with worker’s compensation, unemployment insurance or other forms of governmental insurance or

6

 

 

benefits, or to secure performance of tenders, statutory obligations, leases and contracts (other than for borrowed money) entered into in the Ordinary Course of Business or to secure obligations on surety or appeal bonds; (g) to the extent described on Schedule 3.9 , purchase money security interests or Encumbrances on property acquired or held by the Company or any Subsidiary in the Ordinary Course of Business to secure the purchase price of such property or to secure indebtedness incurred solely for the purpose of financing the acquisition of such property; and (h) easements, restrictions and other exceptions to or defects of title that are not, in the aggregate, material and that do not, individually or in the aggregate, materially and adversely affect the use or occupancy of the property affected thereby.

     " Person " means an individual, a partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, any other entity, or a Governmental Authority.

     " Proceeding " means any action, arbitration, mediation, audit, charge, claim, complaint, demand, notice, hearing, investigation, litigation, or suit (whether civil, criminal, administrative, investigative, or informal) commenced, brought, conducted, or heard by or before, or otherwise involving, any Governmental Authority or any third-party arbitrator or mediator.

     " Purchase Price " has the meaning set forth in Section 2.2.

     " Real Property Leases " has the meaning set forth in Section 3.11.

     " Receiving Party " has the meaning set forth in Sections 6.5 and 7.5.

     " Representatives " has the meaning set forth in Section 11.1(c).

     " Responsible Party " has the meaning set forth in Section 11.2(g).

     " Retention Plan " has the meaning set forth in Section 7.6(h).

     " SEC " means the United States Securities and Exchange Commission.

     " Securities Act " means the Securities Act of 1933, as amended.

     " Seller " has the meaning set forth in the preamble.

     " Seller’s Financial Advisors " has the meaning set forth in Section 4.5.

     " Seller’s Fundamental Representations " has the meaning set forth in Section 11.1(a).

     " Seller Indemnified Parties " has the meaning set forth in Section 11.2(b).

     " Seller Tax Loss " has the meaning set forth in Section 11.2(b).

     " Share Consideration " means 2,050,000 shares of LodgeNet Entertainment Corporation common stock, $0.01 par value, as such number is adjusted pursuant to the provisions of Section 2.6.

7

 

 

      "Share Consideration Value" means $47,867,500.

     " Shares " has the meaning set forth in Recital B.

     " Stockholders Agreement " means the Stockholders Agreement between Seller, Buyer and Liberty, dated as of the date hereof.

     " Subsidiaries " means all Persons that the Company directly or indirectly Controls.

     " Survival Period " has the meaning set forth in Section 11.1(a).

     " Target Working Capital " means an anticipated working capital amount set forth on Exhibit B.

     " Terminated ONCO 401(k) Plans " has the meaning set forth in Section 7.6(g).

     " Termination Date " has the meaning set forth in Section 10.2.

     " THN " means The Hotel Networks, Inc. f/k/a Hotelevision, Inc.

     " THN Balance Sheet " has the meaning set forth in Section 3.4.

     " THN Contracts " has the meaning set forth in Section 3.12(m).

     " THN Financial Statements " has the meaning set forth in Section 3.4.

     " THN Interim Financial Statements " has the meaning set forth in Section 3.4.

     " Threshold " has the meaning set forth in Section 11.2(c).

     " WARN Act " has the meaning set forth in Section 7.6(j).

     Section 1.2.      Tax Terms . Certain terms related to tax matters used in Article IX are defined in Section 9.1.

     Section 1.3.      Terms Generally . The definitions set forth or referenced in Section 1.1 apply equally to both the singular and plural forms of the terms defined. Any pronoun includes the corresponding masculine, feminine and neuter forms, as the context requires. The words "include," "includes" and "including" will be deemed to be followed by the phrase "without limitation." The word "or" is not exclusive. The words "shall" and "will" are used interchangeably and are intended to have, and will be deemed to have, the same meaning. The "knowledge" of a Party will mean the actual knowledge of any senior officer of such Party after due investigation and inquiry; provided, however, that the "knowledge" of Seller or Liberty also will be deemed to include the actual knowledge of any of the following officers of ONCO: The President and Chief Executive Officer; the Senior Vice President and Chief Financial Officer; the Senior Vice President, General Counsel and Secretary; the Senior Vice President, Operations; the Senior Vice President, Marketing and Programming; and Group Vice President of Sales, and (b) the President and Chief Executive Officer and Chief Financial Officer (or persons holding equivalent positions) of THN. The words "herein," "hereof" and "hereunder" and words of

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similar import refer to this Agreement (including the Exhibits and Schedules) in its entirety and not to any part of this Agreement unless the context otherwise requires. All references to Articles, Sections, Exhibits and Schedules will be deemed references to Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context otherwise requires. Any references to any agreement or other document or instrument or to any statute or regulation are to it as amended and supplemented from time to time (and, in the case of a statute or regulation, to any successor provisions, and to any rules and regulations promulgated thereunder), unless the context otherwise requires. Any reference to a "day" or number of "days" (without the explicit qualifications of "business") will be interpreted as a reference to a calendar day or number of calendar days. If any action or notice is to be taken or given on or by a particular calendar day, and such calendar day is not a Business Day, then such action or notice will be deferred until, or may be taken or given on, the next Business Day. All references to dollar amounts will be references to United States Dollars.

ARTICLE II

PURCHASE AND SALE OF SHARES; CLOSING

     Section 2.1.      Purchase and Sale of Shares . Subject to the terms and conditions set forth in this Agreement, at the Closing, Seller will sell and transfer the Shares to Buyer, and Buyer will purchase the Shares from Seller, free and clear of any Encumbrances, as set forth in this Article II.

     Section 2.2.      Purchase Price . The purchase price for the Shares will be $380,000,000.00, subject to adjustment as set forth in Section 2.3 (the " Purchase Price "), consisting of:

     Section      

     (a) cash in the amount of the difference between the Purchase Price and the Share Consideration Value (the " Cash Consideration "); and

     (b) the Share Consideration.

     Collectively the sum of the Cash Consideration (as such amount may be adjusted pursuant to Section 2.3) plus the Share Consideration are referred to as the Purchase Price. The Cash Consideration will be paid at the Closing by wire transfer of immediately available funds pursuant to wire instructions delivered by Seller to Buyer no later than two Business Days prior to the Closing Date. The Share Consideration will be paid at the Closing by delivery of a stock certificate or certificates registered in Seller’s name, the denominations of which Seller will request at least three (3) Business Days prior to Closing and which will evidence an aggregate number of shares of common stock of Buyer equal to the full Share Consideration.

     Section 2.3.      Adjustment . The Cash Consideration portion of the Purchase Price shall be subject to adjustment as follows:

     (a) If, as of the Closing Date, the Estimated Closing Working Capital is (i) less than the Target Working Capital, the Cash Consideration payable at the Closing will be reduced by the difference between the Estimated Closing Working Capital and the Target Working Capital or (ii) more than the Target Working Capital, the Cash Consideration payable at the Closing will be increased by the difference between the Estimated Closing Working Capital

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and the Target Working Capital such increase or decrease, (the " Closing Purchase Price Adjustment "). The Seller shall not less than three (3) Business Days prior to the Closing estimate the Closing Working Capital, based on the balance sheet of the Company and its Subsidiaries as of the prior month-end, but brought forward to include any known changes in the components of Closing Working Capital since such prior month-end, supporting documentation for all of which shall be provided to Buyer for its review concurrently with or prior to the delivery of the estimated Closing Working Capital calculation (the " Estimated Closing Working Capital ").

     (b) If the Closing Working Capital is (i) less than the Estimated Closing Working Capital, the Cash Consideration will be reduced by the difference between the Estimated Closing Working Capital and the Closing Working Capital or (ii) more than the Estimated Closing Working Capital, the Cash Consideration will be increased by the difference between the Estimated Closing Working Capital and the Closing Working Capital, provided that if no Closing Purchase Price Adjustment was made at Closing as a result of clause (c) below, then the foregoing calculation shall be made by comparing the Closing Working Capital to the Target Working Capital rather than the Estimated Closing Working Capital (the " Final Purchase Price Adjustment "). Any Final Purchase Price Adjustment shall be paid in accordance with Section 2.3(d) below.

     (c) Notwithstanding clauses (a) and (b) above, no adjustment to the Purchase Price shall be made if the aggregate adjustment would be in an amount less than $1,000,000.

     (d) In the event of a reduction to the Purchase Price pursuant to Section 2.3(b)(i), Seller and Liberty will be jointly and severally liable for the amount of the reduction and will pay to Buyer, within five (5) Business Days of the Closing Date Calculations being declared final pursuant to Section 2.3(f) and (g) (the " Balance Sheet Date "), the amount of such reduction plus interest accruing on such amount at a rate of six percent (6)% per annum from the Closing Date until such amount is paid, in immediately available funds. In the event of an increase to the Purchase Price pursuant to Section 2.3(b)(ii), the Buyer will pay to Seller, within five (5) Business Days of the Balance Sheet Date, the amount of such increase plus interest accruing on such amount at a rate of six (6)% per annum from the Closing Date until such amount is paid, in immediately available funds. Any amount paid pursuant to this Section 2.3 will be treated as an adjustment to the Purchase Price for all purposes.

     (e) The Buyer shall prepare and distribute to Seller, within sixty (60) days after the Closing Date, a written calculation of the proposed Final Purchase Price Adjustment and the Closing Working Capital (the " Closing Date Calculations "), as determined by reference to the relevant provisions of this Agreement.

     (f) On or prior to the thirtieth (30 th ) day after Buyer gives Seller notice of the Closing Date Calculations, Seller may give Buyer a written notice that it objects (an " Objection Notice ") to the Closing Date Calculations. Any Objection Notice shall specify the dollar amount of any objection and a reasonably detailed summary of the basis for objection. Except to the extent Seller timely objects to a specific determination set forth in the Closing Date Calculations pursuant to an Objection Notice delivered to Buyer within such thirty (30) day period, the Closing Date Calculations will be conclusive and binding upon the Parties.

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     (g) If Seller delivers a timely Objection Notice as described in Section 2.3(f), then Buyer and Seller shall negotiate in good faith to resolve their disputes raised pursuant to a timely Objection Notice. If Buyer and Seller are unable to resolve all disputes regarding the Closing Date Calculations on or prior to the thirtieth (30 th ) day after the date the Objection Notice was delivered, then Buyer shall retain a "big four" accounting firm (after eliminating any such firm which is conflicted or otherwise unable to participate) (the " Independent Accounting Firm ") to resolve the dispute as soon as practicable, and in any event within thirty (30) days after Buyer retains such firm. The Independent Accounting Firm shall only decide the specific items under dispute by the parties, and shall make its determinations solely in accordance with this Section 2.3. The Independent Accounting Firm’s determination regarding the matters in dispute will be conclusive and binding upon the Parties hereto and will constitute (or, if applicable, will be used in the calculation of) the Final Purchase Price Adjustment and the Closing Working Capital for all purposes of this Section 2.3. The fees and expenses of the Independent Accounting Firm in connection with its review of the Closing Date Calculations shall be paid one-half (1/2) by the Company and one-half (1/2) by Seller.

     Section 2.4.      Closing . The closing of the transactions contemplated by this Agreement (the " Closing ") will take place at the offices of Sherman & Howard L.L.C. in Denver, Colorado at 10:00 a.m. Mountain Time on the date that is five Business Days after the satisfaction or waiver of the closing conditions contained in Article VIII, or at such other time and place as the Parties may agree in writing (the " Closing Date "), provided that if the conditions to Closing set forth in Article 8 are satisfied prior to January 1, 2007, then Buyer shall have the option to extend the Closing Date for up to sixty (60) days assuming that Buyer is diligently proceeding to obtain its financing for the transactions contemplated by this Agreement.

     Section 2.5.      Closing Deliveries . At the Closing:

     (a) Seller and Liberty will deliver to Buyer:

     (i) one or more stock certificates representing the Shares, duly endorsed (or accompanied by duly executed stock powers) for transfer to Buyer, which Shares shall be free and clear of any Encumbrances except Encumbrances arising out of any action taken by Buyer or any of its Affiliates or under the Securities Act; and

     (ii) one or more officer’s certificates, dated the Closing Date, executed by duly authorized executive officers of Seller and Liberty, attesting to matters in Sections 8.1(a) and (b); and

     (iii) possession of all documents, books, records agreements and financial data relating to the Company and its Subsidiaries held by Liberty, the Company and its Subsidiaries.

     (b) Buyer will deliver to Seller:

     (i) the Cash Consideration (as adjusted pursuant to Section 2.3(a), if applicable) by wire transfer of immediately available funds to an account designated by Seller; and

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     (ii) a stock certificate or certificates representing the Share Consideration; and

     (iii) a certificate, dated the Closing Date, executed by a duly authorized executive officer of Buyer, attesting to matters in Sections 8.2(a) and 8.2(b).

     Section 2.6.      Stock Adjustment. If, after the Agreement Date and prior to the Closing Date, the Buyer is recapitalized or reclassified or Buyer effects any stock dividend, stock split, or reverse stock split or otherwise effects any transaction that changes its common stock into any other securities (including securities of another corporation), then the Share Consideration to be delivered to Seller under this Agreement will be appropriately and equitably adjusted to the kind and amount of shares of stock and other securities and property which the Seller would have been entitled to receive had the shares comprising the Share Consideration been issued and outstanding as of the record date for determining stockholders entitled to participate in such corporate event.

ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER AND LIBERTY
REGARDING THE COMPANY AND ITS SUBSIDIARIES

     The disclosures in any section or paragraph of the disclosure schedule accompanying this Agreement (the " Disclosure Schedule ") shall qualify as disclosures by the Seller and Liberty with respect to any other portion of the numbered and lettered paragraphs of such Disclosure Schedule and the related representations and warranties to the extent that the relevance of such disclosure is readily apparent to the disclosure called for in such other section or paragraph of the Disclosure Schedule or the related representations and warranties. Notwithstanding the foregoing or anything to the contrary in this Agreement, the information contained in any specific document referenced in the Disclosure Schedule shall qualify the representations and warranties only to the extent the reason such document is relevant to the applicable section or paragraph of the Disclosure Schedule or the related representations and warranties is specifically described in the Disclosure Schedule. Except as set forth in the Disclosure Schedule, Seller and Liberty hereby jointly and severally represent and warrant to Buyer as follows:

     Section 3.1.      Organization, Qualification and Corporate Power . The Company is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware. The Company has all requisite corporate power and authority to own its assets and to conduct its business as it is currently being conducted. The Company is duly qualified and authorized to transact business and is in good standing in each jurisdiction where such qualification is required, except where the failure to be so qualified would not have, individually or in the aggregate, a Material Adverse Effect.

     Section 3.2.      Capitalization. The authorized capital stock of the Company consists of 50,000 shares of common stock, par value $0.01 per share, of which 1,000 shares are issued and outstanding and constitute the "Shares." The Shares are the only shares of capital stock or other ownership interests in the Company outstanding. All of the Shares have been duly and validly authorized and issued, are fully paid and non-assessable, are free and clear of all Encumbrances and are held beneficially and of record by Seller. The transfer and delivery of the Shares by

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Seller to Buyer as contemplated by this Agreement will transfer good and valid title to the Shares to Buyer free and clear of all Encumbrances, except Encumbrances arising as a result of any action taken by the Buyer or any of its subsidiaries. There are no outstanding or authorized options, warrants, purchase rights, subscription rights, conversion rights, exchange rights, pre-emptive rights or other rights, contracts or commitments that could require the Company to issue, sell or otherwise cause to become outstanding any of its capital stock or any other securities exercisable or exchangeable for or convertible into such capital stock. There are no outstanding or authorized stock appreciation, phantom stock, profit participation, or similar rights with respect to the Company. There are no voting trusts, proxies, or other agreements or understandings with respect to the voting of the capital stock or Control of the Company.

     Section 3.3.      Subsidiaries and Equity Affiliates . The Company directly owns all of the issued and outstanding shares of capital stock of ONCO, and the Company does not have any assets or Liabilities other than those related to its ownership of ONCO and other than Liberty Intercompany Debt of the Company and its Subsidiaries that will be eliminated prior to the Closing in accordance with Section 8.1(f) or Ascent Intercompany Indebtedness. Schedule 3.3 sets forth a complete list of all Subsidiaries and Equity Affiliates of ONCO and the direct or indirect ownership interest of ONCO in each such Subsidiary and Equity Affiliate. Except as set forth on Schedule 3.3 , ONCO does not own, directly or indirectly, any equity interest in any other Person including any general or limited partnership interest, limited liability company interest or other form of joint venture. All issued and outstanding shares of capital stock of each Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable, and, at Closing, will be free and clear of all Encumbrances other than Permitted Encumbrances. There are no outstanding or authorized options, warrants, purchase rights, subscription rights, conversion rights, exchange rights, pre-emptive rights, or other rights, contracts or commitments that could require any Subsidiary to issue, sell or otherwise cause to become outstanding any of its capital stock or any other securities exercisable or exchangeable for or convertible into such capital stock. There are no outstanding or authorized stock appreciation, phantom stock, profit participation, or similar rights with respect to any Subsidiary. There are no voting trusts, proxies, or other agreements or understandings with respect to the voting of the capital stock or Control of any Subsidiary. Each Subsidiary is a Person duly organized, validly existing and in good standing under the laws of its place of formation. Each Subsidiary has all requisite power and authority to own its assets and to conduct its business as it is currently being conducted. Each Subsidiary is duly qualified and authorized to transact business and is in good standing in each jurisdiction where such qualification is required, except where the failure to be so qualified would not have, individually or in the aggregate, a Material Adverse Effect.

     Section 3.4.      Financial Statements . Seller has delivered to Buyer the following financial statements of the Company and ONCO and its subsidiaries on a consolidated basis (collectively, the " Financial Statements "): (a) audited financial statements of ONCO, including the balance sheets as at December 31, 2005, 2004 and 2003 and the statement of operations, changes in stockholders’ equity, and cash flows for the fiscal years ended December 31, 2005, 2004 and 2003; (b) unaudited financial statements of the Company, including the balance sheets as at December 31, 2005 and 2004 and the statement of operations, changes in stockholders’ equity, and cash flows for the fiscal years ended December 31, 2005 and 2004 (the " Company Unaudited Financial Statements "); and (c) unaudited financial statements of ONCO and the Company, including the balance sheet as at September 30, 2006 (the " Balance Sheet ") and the

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statement of operations, changes in stockholders’ equity, and cash flows for the nine months ended September 30, 2006 (collectively including the Balance Sheet, the " Interim Financial Statements "). The Financial Statements and the Company Unaudited Financial Statements (including any notes thereto) (i) have been prepared in accordance with GAAP applied on a consistent basis throughout the periods covered thereby, (ii) present fairly in all material respects the financial position of the Company and its Subsidiaries and ONCO and its Subsidiaries, as applicable, on a consolidated basis as of such dates and the results of operations and cash flows of the Company and its Subsidiaries and ONCO and its Subsidiaries, as applicable, on a consolidated basis for such periods, and (iii) are consistent with the books and records of the Company and its Subsidiaries and ONCO and its Subsidiaries, as applicable; provided, however, that the Interim Financial Statements are subject to normal year-end adjustments (that are not material, either individually or in the aggregate) and that the Interim Financial Statements and the Company Unaudited Financial Statements do not contain footnotes required by GAAP. Seller has delivered to Buyer the following financial statements of THN (collectively, the " THN Financial Statements "); (a) unaudited financial statements, including the balance sheet as at December 31, 2005 and the statement of operations, changes in stockholders’ equity, and cash flows for the fiscal year ended December 31, 2005; and (b) unaudited financial statements, including the balance sheet as at September 30, 2006 (the " THN Balance Sheet ") and the statement of operations, changes in stockholders’ equity, and cash flows for the nine months ended September 30, 2006 (collectively including the THN Balance Sheet, the " THN Interim Financial Statements "). The THN Financial Statements (i) have been prepared in accordance with GAAP applied on a consistent basis throughout the periods covered thereby, (ii) present fairly in all material respects the financial position of THN as of such dates and the results of operations and cash flows of THN for such periods and (iii) are consistent with the books and records of THN; provided, however, that the THN Interim Financial Statements are subject to normal year-end adjustments (that are not material, either individually or in the aggregate (except as set forth in the Disclosure Schedule)) and the THN Financial Statements do not contain footnotes required by GAAP. Except as described on the Disclosure Schedule, neither ONCO’s nor the Company’s independent auditors have identified (i) since the adoption of rules promulgated by the SEC pursuant to the Section 404 of the Sarbanes-Oxley Act of 2002, any control deficiency, significant deficiency or material weakness in the system of internal control over financial reporting (each term as defined in Auditing Standard No. 2 of the Public Company Accounting Oversight Board) utilized by the Company and its Subsidiaries or (ii) any fraud, whether or not material, that involves the Company’s management or other employees who have a role in the preparation of financial statements or the internal control over financial reporting utilized by the Company and its Subsidiaries. To the knowledge of Seller or Liberty, (i) none of the principal executive officer or principal financial officer of Seller, Liberty, ONCO or the Company has concluded that a material weakness currently exists, other than what is described on the Disclosure Schedule and (ii) no claim or allegation has been made that a material weakness exists or that there has been any fraud with respect to the preparation of ONCO’s or the Company’s financial statements or the internal control over financial reporting utilized by the Company and its Subsidiaries.

     Section 3.5.      Assets and Liabilities of the Company . Except for its interest in ONCO and its liability for income taxes, the Company has no assets and no Liabilities of a nature required to be disclosed on an unconsolidated balance sheet of the Company or in the footnotes to the Financial Statements or any liabilities that would be required to be disclosed by SEC rules

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and regulations if the Company were an unconsolidated public company registered with the SEC. Except as set forth on the Disclosure Schedule, the Company and its Subsidiaries do not have any contingent reimbursement obligations or amounts outstanding pursuant to any letters of credit or similar facilities issued for the account of the Company and its Subsidiaries.

     Section 3.6.      No Undisclosed Liabilities . Neither the Company nor any Subsidiary has any Liability of a type that would be required to be disclosed in the financial statements, including the footnotes, under generally accepted accounting principles or liabilities described in Items 103, 303(a)(4), or 305 of Regulation S-K, except for (a) Liabilities set forth on the Balance Sheet or disclosed in the Notes to the 2005 Financial Statements referred to in Section 3.4(a), (b) Liabilities that have arisen after the date of the Balance Sheet in the Ordinary Course of Business, or (c) Liabilities that would not be material to the Company and its Subsidiaries taken as a whole.

     Section 3.7.      Noncontravention; Consents . Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated by this Agreement, will (a) violate any Legal Requirement to which the Company or any Subsidiary is subject or any provision of the certificate of incorporation or bylaws (or comparable constituent documents) of the Company or any Subsidiary or (b) result in a breach of, constitute a default under, result in the acceleration of, create in any Person the right to accelerate, terminate, modify, or cancel, any contract or obligation with respect to Indebtedness to which the Company or any Subsidiary is a party or by which it is bound or to which its assets are subject, except where any such violation, breach, default or other matter would not have, individually or in the aggregate, a Material Adverse Effect. Schedule 3.7 sets forth all notices and filings required to be made and all authorizations, consents, or approvals of any Governmental Authority or other Person required to be obtained by Seller in order for Buyer and Seller to consummate the transactions contemplated by this Agreement.

     Section 3.8.      Compliance with Legal Requirements . To Seller’s knowledge, the Company and its Subsidiaries are in compliance with all applicable Legal Requirements, except where the failure to be in compliance would not have individually or in the aggregate, a Material Adverse Effect. No Proceeding has been filed or commenced against the Company or any Subsidiary alleging any failure to so comply with applicable Legal Requirements, and to Seller’s knowledge no such Proceeding has been threatened. Each of the Company and its Subsidiaries holds all Permits used or necessary in the conduct of its business or the ownership of its property and assets. Such Permits are valid and in full force and effect, and no written notice has been received by the Company or its Subsidiaries alleging the failure to hold any such Permit. The Company and its Subsidiaries are in material compliance with the terms and conditions of such Permits, and all of such Permits will be available for use on the same terms by the Company and its Subsidiaries immediately after the Closing, except where the failure to be in compliance or the unavailability for use would not have, individually or in the aggregate, a Material Adverse Effect.

     Section 3.9.      Title to Assets . Except as set forth on Schedule 3.9 , each of the Company and each Subsidiary has good title to, or a valid leasehold interest in, the properties and assets used by the Company or such Subsidiary in its business as it is presently being conducted as set forth on the Balance Sheet or acquired after the date of the Balance Sheet, free and clear of all

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Encumbrances (other than Permitted Encumbrances), except for properties and assets disposed of in the Ordinary Course of Business since the date of the Balance Sheet. Neither the Company nor any Subsidiary has received any notice of violation or default under any Legal Requirement or Contract relating to its owned or leased properties and assets that remains uncured or has not been dismissed, except where any such violation or default would not have, individually or in the aggregate, a Material Adverse Effect. All leases and licenses pursuant to which the Company or any Subsidiary leases or licenses tangible or intangible property from others, including without limitation licenses for rights to music from music licensing associations, are valid and effective in accordance with their respective terms, and there is not, with respect to the Company or any Subsidiary under any of such leases or licenses, any existing default (or event that with notice or lapse of time, or both, would constitute a default), except where any such default would not have, individually or in the aggregate, a Material Adverse Effect.

     Section 3.10.      Intellectual Property . The Company and its Subsidiaries own or have the right to use, pursuant to a valid and enforceable license, the Intellectual Property currently used in and necessary for the operation of their respective businesses and shall continue to have the right to use such Intellectual Property immediately following the Closing. Schedule 3.10 sets forth a list of (i) all the Company’s and each Subsidiary’s registered Intellectual Property and all material unregistered Intellectual Property (other than those items listed in subsection (d) of the definition of Intellectual Property and other than "inventions" and "business methods" listed in subsection (a) of said definition, "trade dress," "brands," "slogans," and "logos" listed in subsection (b) of such definition and "copyrightable subject matter" listed in subsection (c) of said definition) owned by or used by the Company or its Subsidiaries in their respective businesses, and (ii) all written licenses (other than off-the-shelf commercial computer software) with an anticipated annual license fee of greater than $50,000 pursuant to which the Company or its Subsidiaries have the right to use Intellectual Property. To the knowledge of Seller, the Company’s and its Subsidiaries’ use of all such Intellectual Property as currently used in the operation of their respective businesses does not violate or infringe upon any Intellectual Property or other rights of any other Person and to the knowledge of Seller, no allegation of such violations or infringement of any such Intellectual Property rights has been asserted or threatened, except as listed on Schedule 3.10 .

     Section 3.11.      Real Property; Real Property Leases . Neither the Company nor any Subsidiary owns any real property. Schedule 3.11 sets forth all leases and subleases under which either the Company or any Subsidiary is lessor or lessee or sublessor or sublessee of any real property (the " Real Property Leases "). The Company has provided true, correct and complete copies of all such Real Property Leases, including any amendments to such Real Property Leases, to the Buyer. The Real Property Leases are in full force and effect and constitute binding and enforceable agreements of the Company or the Subsidiary and, to Seller’s knowledge, the landlords or lessors party thereto. The Company or the Subsidiary that is a party to any Real Property Lease is not in breach or default thereunder and, to the knowledge of Seller no landlord is in breach or violation of any such Real Property Lease and no event has occurred that with notice or lapse of time, or both, would constitute a breach or default thereunder by the Company or the Subsidiary that is a party thereto, except where any such Company or Subsidiary breach or default would not have, individually or in the aggregate, a Material Adverse Effect.

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     Section 3.12.      Contracts . Schedule 3.12 sets forth the following contracts and other agreements to which the Company or any Subsidiary is a party and under which the Company or any Subsidiary has ongoing rights or obligations as of the Agreement Date (the " Contracts "):

     (a) any agreement for the lease of personal property to or from any Person (not including any Real Property Leases) providing for calendar year lease payments in excess of $100,000;

     (b) any agreement with a customer, including any master agreement pursuant to which the Company or any Subsidiary has entered into multiple service agreements covering individual hotels, pursuant to which the Company or any such Subsidiary either received revenue in excess of $500,000 during 2005 or reasonably expects to receive revenue in excess of such amount during 2006 or pursuant to which the Company or any Subsidiary (i) either paid fees in excess of $500,000 during 2005 or reasonably expects to pay fees in excess of such amount during 2006 (provided, however, 2006 revenue amounts and fees are forecasts only subject to uncertainties, and neither Seller, the Company nor any Subsidiary guarantees such results) or (ii) has agreed to provide such customer more favorable terms with respect to the price charged or any other financial matter, or with respect to the technological capabilities of equipment utilized by the Company and its Subsidiaries in providing services to such customer, in each case, to the extent such terms have been provided by the Company or its Subsidiaries to other customers of the Company or its Subsidiaries (any such clause being hereinafter referred to as an " MFN Clause ");

     (c) any agreement with a content provider pursuant to which the Company or any Subsidiary either made payments (including variable royalty payments) in excess of $250,000 during 2005 or has a firm commitment to make minimum payments in excess of such amount during 2006 or has a firm commitment to make minimum payments in excess of such amount in any single year after 2006;

     (d) any agreement with any third party (other than those described elsewhere in this Article III), including any affiliates of Seller or Liberty, pursuant to which the Company or any Subsidiary either made payments in excess of $500,000 during 2005 or has a firm commitment to make payments in excess of such amount during 2006, excluding purchase orders;

     (e) any purchase order or group of purchase orders or binding commitments payable to the same payee outstanding as of September 30, 2006 pursuant to which the amount payable by the Company or any Subsidiary exceeds $500,000;

     (f) any agreement governing a general or limited partnership, limited liability company or other form of joint venture;

     (g) any agreement under which the Company or any Subsidiary has created, incurred, assumed, or guaranteed any, Indebtedness or any capitalized lease obligation, in an amount in excess of $100,000 or under which the Company or any Subsidiary has imposed an Encumbrance (other than a Permitted Encumbrance) on any of the Company’s or any

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Subsidiary’s assets, tangible or intangible, other than any such agreement described in Section 3.19;

     (h) any agreement, arrangement or commitment governing Ascent Intercompany Indebtedness;

     (i) any agreement, arrangement or commitment under which the Company or any Subsidiary has agreed or committed to advance or loan or has advanced or loaned any amount to any of its directors, officers, or employees, other than advances with respect to expenses incurred in the Ordinary Course of Business;

     (j) any agreement, arrangement or commitment entered into outside the Ordinary Course of Business and pursuant to which any material obligations or liabilities (whether absolute, contingent or otherwise) remain outstanding;

     (k) any employment, bonus, consulting or independent contractor agreement pursuant to which the Company or any Subsidiary reasonably expects to make future payments in excess of $100,000 in any calendar year;

     (l) any agreements that provide that the Company or any of its Subsidiaries are required to pay for goods or services to a Person whether or not such Person provides such goods or services under such Contract;

     (m) any of the following agreements of THN (collectively, the " THN Contracts "):

     (i) agreements for advertising revenue pursuant to which THN reasonably expects to receive revenue in excess of $25,000 in any calendar year;

     (ii) agreements pursuant to which THN made payments in excess of $50,000 during 2005 or has a firm commitment to make payments in excess of such amount during 2006, excluding purchase orders;

     (iii) programming agreements or any agreement with a content provider;

     (iv) any agreement with a hotel customer, including any master agreement pursuant to which THN has entered into multiple service agreements covering individual hotels covering more than 5,000 rooms;

     (v) any agreement under which THN has created, incurred, assumed, or guaranteed any, Indebtedness or any capitalized lease obligation, or under which THN has imposed an Encumbrance (other than a Permitted Encumbrance) on any of THN’s assets, tangible or intangible;

     (vi) any agreements for the issuance of any securities by THN; or

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     (vii) agreements between or among the stockholders of THN, including any agreement whereby the Company or any of its Subsidiaries is obligated to provide funds to THN.

None of THN, the Company or the other stockholders of THN have any verbal or oral agreements or understanding that would be required to be disclosed in (m)(i) through (vii) above, other than as set forth in the THN Contracts.

     (n) any agreement that restricts the right or ability of the Company or any Subsidiary or, to Seller’s and Liberty’s knowledge, any Equity Affiliate, to conduct their respective businesses subsequent to the Closing in a manner that is substantially the same as such businesses are conducted prior to Closing whether as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement, and

     (o) any agreements or licenses with music licensing associations.

With respect to each such Contract: (i) the Contract is in full force and effect and constitutes a binding obligation of the Company or the Subsidiary (other than any such Contract whose term has terminated or expired in accordance with its stated term), and (ii) the Company or the Subsidiary that is a party to the Contract is not in breach or default thereunder and, (iii) to the knowledge of Seller, the Contract constitutes a binding obligation on the other parties to the Contract, and (iv) to the knowledge of Seller, no event has occurred that with notice or lapse of time, or both, would constitute a breach or default thereunder by the Company or the Subsidiary that is a party thereto or, to the knowledge of Seller, any other party to each such Contract, except where any such breach or default would not have, individually or in the aggregate, a Material Adverse Effect. The Company has provided true, correct and complete copies of all Contracts, including any amendments to such Contracts, to the Buyer, except for those Contracts as to which the parties have agreed to an alternative review process. As of the date hereof, the aggregate amount owed by the Company and its Subsidiaries pursuant to any leases that are required to be capitalized under GAAP does not exceed $2,000,000 and all such leases will remain in full force and effect immediately following the Closing without any modification of their terms.

     Section 3.13.      Litigation . Neither the Company nor any Subsidiary is (a) subject to any outstanding injunction, judgment, order, decree, ruling, conciliation agreement or settlement agreement, or charge requiring the future payment of money by it or requiring it to take or preventing it from taking any future action the effect of which would have a Material Adverse Effect on the Company or (b) a party, or to the knowledge of Seller and Liberty, threatened in writing to be made a party, to any Proceeding.

     Section 3.14.      Environmental, Health, and Safety Matters .

     (a) To the knowledge of Seller, the Company and its Subsidiaries have complied in all material respects and are in compliance in all material respects with all Environmental, Health, and Safety Requirements.

     (b) Without limiting the generality of the foregoing, the Company and its Subsidiaries have obtained, and have complied in all material respects and are in compliance in

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all material respects with, all Permits that are required pursuant to Environmental, Health, and Safety Requirements for the occupation of their respective facilities and the operation of their respective businesses.

     (c) Neither the Company nor any Subsidiary has received any written notice, report or other information regarding any actual or alleged material violation of Environmental, Health, and Safety Requirements or any outstanding material Liabilities arising therefrom or, to its knowledge, any threat of material Liabilities under any Environmental, Health and Safety Requirements.

     (d) Neither the Company nor any Subsidiary has treated, stored, disposed of, arranged for or permitted the disposal of, transported, handled, or released any substance, including any hazardous substance, or owned or operated any property or facility in a manner, that has given, or to the knowledge of Seller would give, rise to any material Liabilities pursuant to any Environmental, Health, and Safety Requirements.

     (e) The Company has provided to the Buyer true and complete copies of all environmental audits, reports, permits and other material environmental documents relating to the past or current properties, facilities or operations of the Company or its Subsidiaries or their respective predecessors or Affiliates which are in its possession or under its reasonable control and dated within the past seven (7) years.

     Section 3.15.      Employees . The Company has provided to the Buyer a true and complete list, setting forth each employee of the Company or any Subsidiary, together with such employee’s job title; location in which employed; current compensation rate; and service credited for purposes of vesting and eligibility to participate under any pension, retirement, profit-sharing, thrift-savings, deferred compensation, stock bonus, stock option, restricted stock, stock appreciation right, cash bonus, employee stock ownership (including investment credit or payroll stock ownership), retention, severance pay, insurance, medical, welfare, or other Benefit Plan. The Company and each Subsidiary has complied with all provisions of applicable law pertaining to the employment of employees, including, without limitation, all such laws relating to labor relations, equal employment, fair employment practices, entitlements, prohibited discrimination or other similar employment practices or acts, except where any failure so to comply would not have, individually or in the aggregate, a Material Adverse Effect.

     Section 3.16.      Labor Relations . Neither the Company nor any Subsidiary is a party to any collective bargaining or other labor contract. There is not presently pending or existing and, to the knowledge of Seller, there is not threatened (a) any strike, slowdown, picketing, work stoppage, or employee grievance process, or (b) any effort to organize any employees into a collective bargaining unit.

     Section 3.17.      Employee Benefits .

     (a) Schedule 3.17(a) sets forth each bonus, deferred compensation, incentive compensation, stock purchase, stock option, retention, severance or termination pay, hospitalization or other medical, life, or other insurance, supplemental unemployment benefits, profit-sharing, 401(k), pension or retirement plan, program, agreement, or arrangement, and each

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other employee benefit plan, program, agreement, or arrangement, written or verbal, that currently is sponsored, maintained, or contributed to or required to be contributed to by the Company or any Subsidiary or by any trade or business, whether or not incorporated (an " ERISA Affiliate "), that together with the Company or any Subsidiary would be deemed a "single employer" within the meaning of Section 4001(b) (l) of the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder (" ERISA "), for the benefit of any U.S.-based employee or former employee of the Company or any Subsidiary (the " Benefit Plans "). Schedule 3.17(a) identifies each of the Benefit Plans that is an "employee welfare benefit plan" or "employee pension benefit plan" as such terms are defined in Sections 3(1) and 3(2) of ERISA (such plans being referred to collectively as the " ERISA Plans ").

     (b) Each of the Benefit Plans has been and is operated and administered in accordance with its terms in all material respects and in material compliance with applicable requirements of the Code, ERISA, and other applicable Legal Requirements and may in accordance with its terms be amended or terminated at any time.

     (c) Except as set forth on Schedule 3.17(c) , none of the Company, any Subsidiary or any ERISA Affiliate contributes, is obligated to contribute, or has been obligated to contribute to a "multiemployer plan" within the meaning of Section 3(37) of ERISA during the five years preceding the Closing Date.

     (d) Neither the Company nor any Subsidiary maintains, contributes to, or has any liability or obligation with respect to an employee welfare benefit plan that provides health or life insurance or other benefits for current or future retired or terminated employees or directors (or any spouse or dependents thereof) of the Company or any ERISA Affiliate, except as may be required under Section 4980 of the Code.

     (e) No Benefit Plan is (i) a "defined benefit plan" (within the meaning of Section 3(35) of ERISA), (ii) subject to the minimum funding requirements of Section 412 of the Code or Part 3 of Title I of ERISA, or (iii) subject to Title IV of ERISA.

     (f) Other than claims in the ordinary course for benefits with respect to the Benefit Plans, there are no Proceedings pending or, to the knowledge of Seller, threatened in writing with respect to any Benefit Plan.

     (g) Schedule 3.17(g) sets forth each employee benefit plan, program or arrangement for retirement or welfare benefits currently covering employees or former employees of the Company or any Subsidiary who are not employed in the United States (the " Non-US Plans "). Each Non-US Plan has been operated and administered in material compliance with all applicable Legal Requirements.

     Section 3.18.      Insurance . Schedule 3.18 sets forth all policies of insurance to which the Company or any Subsidiary is a party or under which the Company or any Subsidiary is covered as of the Agreement Date. With respect to each such insurance policy: (i) the policy is valid, binding, and in full force and effect; and (ii) neither the Company nor any Subsidiary is in breach or default, and to the knowledge of Seller, no event has occurred that with notice or the lapse of

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time, or both, would constitute a breach or default under the policy, except where any such breach or default would not have, individually or in the aggregate, a Material Adverse Effect.

     Section 3.19.      Related Party Transactions. Schedule 3.19(a) sets forth all contracts or arrangements involving the Company or any of its Subsidiaries and Equity Affiliates, on the one hand (the " Company Group "), and Seller, Liberty or any Affiliate of Liberty, including Ascent Media Group, LLC (other than members of the Company Group), on the other hand (the " Liberty Group "), including a description of all goods and services provided by the Liberty Group to the Company Group (all of which will be terminated as of the Closing Date unless otherwise noted on Schedule 3.19(a) ). Schedule 3.19(b) sets forth all contracts or arrangements for obtaining products or services by the Company Group that have been entered into by the Company Group, based in whole or in part on the relationship of the Company Group with the Liberty Group, indicating in each case whether such contract or arrangement will be terminated or modified as a result of the transactions contemplated by this Agreement. There is no contract or arrangement in effect entered into by the Company or any Subsidiary with any officer or director of the Company or any Subsidiary, other than compensation, benefits and expense reimbursements paid or made in the Ordinary Course of Business.

     Section 3.20.      Customers. The MFN Clauses in the Company’s and its Subsidiaries’ hotel customer contracts were granted based on total packages, and Seller has reasonable grounds to believe no such MFN Clauses have been triggered. No hotel customer of the Company and its Subsidiaries has given any notice to the Company and its Subsidiaries that it believes the MFN Clauses in its agreement has been triggered.

     Section 3.21.      Brokers’ Fees. Except as provided in Section 4.5, neither the Company nor any Subsidiary has any Liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement.

     Section 3.22.      Absence of Certain Changes or Events . Since December 31, 2005, (a) there has occurred no fact, event or circumstance which has had or could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (b) none of Seller or its Subsidiaries has taken, and have not caused or permitted the Company or any Subsidiary to take, any action that would have been prohibited without the consent or approval of Buyer if Section 6.3 of this Agreement had been in effect since December 31, 2005 and (c) none of Seller, Liberty, the Company nor any Subsidiary has entered into any contract or agreement to take any action that would have been prohibited without the consent or approval of Buyer if Section 6.3 of this Agreement had then been in effect since such date.

ARTICLE IV
ADDITIONAL REPRESENTATIONS AND WARRANTIES

     Except as set forth in the Disclosure Schedule or in any of the documents referred to in the Disclosure Schedule, Seller and Liberty hereby jointly and severally represent and warrant to Buyer as follows:

     Section 4.1.      Organization of Seller . Each of Seller and Liberty is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware.

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     Section 4.2.      Authorization; Binding Effect . Each of Seller and Liberty has all requisite corporate power and authority to execute and deliver this Agreement and the Stockholders Agreement and to perform its obligations under this Agreement and the Stockholders Agreement, and this Agreement and the Stockholders Agreement has been duly executed and delivered by Seller and Liberty. All consents or approvals of any stockholder of Seller or Liberty required for Seller’s or Liberty’s execution, delivery and performance of this Agreement have been obtained and are in full force and effect, without any conditions or qualifications thereto. No further or other corporate or stockholder consents or approvals are or will be required to be obtained by Seller or Liberty in order for Seller to consummate the transactions contemplated in accordance with the terms hereof. This Agreement and the Stockholders Agreement constitute the legal, valid, and binding obligation of each of Seller and Liberty, enforceable again


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