Preferred Stock Purchase Agreement - On Command Corp. and Ascent Entertainment Group Inc.
PREFERRED STOCK PURCHASE AGREEMENT
This Preferred Stock Purchase Agreement (this "Agreement") is made and
entered into on April 23, 2001 by and among On Command Corporation, a Delaware
corporation (the "Company"), and Ascent Entertainment Group, Inc., a Delaware
corporation ("Buyer").
WHEREAS, the Company desires to issue and sell, and Buyer desires to buy
shares of a newly designated series of the Company's Preferred Stock, par value
$0.01 per share, subject to the terms and conditions set forth herein; and
NOW, THEREFORE, for and in consideration of the mutual promises set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Purchase and Sale.
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1.1. Sale of Purchased Shares. At the Closing, upon the terms and
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conditions contained herein, the Company shall issue, sell and deliver to Buyer
10,000 shares (the "Purchased Shares") of the Company's Cumulative Redeemable
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Preferred Stock, Series C, par value $.01 per share (the "Series C Preferred
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Shares"). Such issuance, sale and delivery shall be effected by the delivery to
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Buyer at the Closing of (i) the certificate or certificates representing the
Purchased Shares, issued in the name of Buyer or its designee and (ii) such
other documents or instruments which may be necessary, or which Buyer may
reasonably request, in order to effectively vest in Buyer good and marketable
title to the Purchased Shares, free and clear of all Liens and Restrictions
other than Permitted Restrictions.
1.2. Purchase of Purchased Shares. At the Closing, upon the terms and
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conditions set forth in this Agreement, Buyer shall purchase all, but not less
than all, of the Purchased Shares for a total purchase price (the "Purchase
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Price") equal to Ten Million Dollars ($10,000,000). The Purchase Price shall be
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paid by wire transfer of immediately available funds to an account designated by
the Company in writing.
1.3. Closing. The closing of the purchase and sale of the Purchased Shares
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(the "Closing") shall be held at the offices of Buyer, 9197 South Peoria Street,
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Englewood, Colorado 80112, or at such other place as the parties may agree, at
1:00 p.m., local time, on April 23, 2001, or at such other date and time as the
parties may agree. (The date on which the Closing occurs is referred to as the
"Closing Date").
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2. Representations and Warranties of the Company. The Company represents
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and warrants to Buyer as follows:
2.1 Authority. (a) The Company is a corporation duly organized, validly
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existing and in good standing under the laws of the State of Delaware, and has
all requisite power and authority to conduct its business as now being conducted
and to enter into this Agreement and to
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perform its obligations hereunder. The execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of the
Company.
(b) The Certificate of Designations establishing the rights and
preferences of the Series C Preferred Shares (the "Certificate of Designations")
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has been approved by the Company's Board of Directors in accordance with the
Company's Amended and Restated Certificate of Incorporation and Delaware law
and, prior to the Closing will have been duly filed and become effective under
Delaware law.
2.2. Issuance of Shares. The Purchased Shares, upon issuance and delivery
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against payment therefor in accordance with the terms and conditions of this
Agreement will be duly authorized, validly issued, fully paid and
non-assessable, will possess all of the rights, privileges and preferences
provided therefor in the Certificate of Designations, will be free of all Liens
and Restrictions other than Permitted Restrictions, and will not be issued in
violation of any preemptive rights.
2.3. Binding Agreement. This Agreement has been duly executed and delivered
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by the Company and is a legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, except insofar as enforceability may
be limited by principles governing the availability of equitable remedies.
2.4. Capitalization. At the date hereof, the authorized capital stock of
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Company consists of (a) 50,000,000 shares of common stock, par value $.01 per
share ("Common Stock"), and (b) 10,000,000 shares of preferred stock, par value
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$.01 per share ("Preferred Stock"). As of the close of business on March 28,
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2001, (i) 30,565,362 shares of Common Stock were issued and outstanding, (ii)
28,500 shares of Preferred Stock were issued and outstanding, 13,500 of which
had been designated as "Convertible Participating Preferred Stock, Series A, par
value $.01 per share" ("Series A Preferred Stock") and 15,000 of which had been
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designated as "Cumulative Redeemable Preferred Stock, Series B, par value $.01
per share" ("Series B Preferred Stock"), and (iii) an aggregate of 12,843,429
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shares of Common Stock were reserved for issuance upon the exercise, exchange or
conversion of securities which are convertible into (including the Series A
Preferred Stock) or exercisable or exchangeable for Common Stock, and no shares
of Common Stock were held (x) by the Company in its treasury or (y) by any
Subsidiary of Company. Except as specified in this Section 2.4, there are no
subscriptions, options, warrants, calls, rights, commitments or any other
agreements of any character to or by which the Company is a party or is bound
which, directly or indirectly, obligate Company to issue, sell or deliver or
cause to be issued, sold or delivered any shares of Common Stock or Preferred
Stock or any other capital stock or equity interest of Company or any securities
convertible into, or exercisable or exchangeable for, or evidencing the right to
subscribe for, any such shares or interests, or obligating Company to grant,
extend or enter into any such subscription, option, warrant, call or right. All
issued and outstanding shares of Common Stock, Series A Preferred Stock and
Series B Preferred Stock have been validly issued and are fully paid and
nonassessable, are not subject to and have not been issued in violation of any
preemptive rights and have not been issued in violation of any Federal or state
securities laws.
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2.5. No Violation. None of the execution or delivery by the Company of this
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Agreement, the performance by the Company of its obligations hereunder, nor the
consummation of the transactions contemplated hereby (i) has resulted or will
result (with or without notice, lapse of time or otherwise) in a breach of the
terms or conditions of, a default under, a conflict with, or the acceleration of
(or the creation in any person of any right to cause the acceleration of) any
performance or any increase in any payment required by, or the termination,
suspension, modification, impairment or forfeiture (or the creation in any
person of any right to cause the termination, suspension, modification,
impairment or forfeiture) of any material rights or privileges of the Company
under (A) the certificate of incorporation, bylaws or other constituent
documents of the Company, (B) any agreement, contract, arrangement or
understanding, written or oral (collectively, "Contract"), or any judgment,
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writ, order or decree (collectively, "Judgment") to which the Company is a party
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or by or to which the Company, its properties, assets or business or any of the
Purchased Shares being sold by the Company are or may be subject, bound or
affected or (C) any applicable law, rule or regulation (collectively, "Law");
(ii) has resulted or will result (with or without notice, lapse of time or
otherwise) in the creation, imposition, or foreclosure of or right to exercise
or foreclose any Lien or Restriction of any nature whatsoever upon or in any of
(A) the assets of the Company (other than the Purchased Shares being sold by the
Company) or (B) the Purchased Shares; or (iii) assuming that the issuance, sale
and delivery to Buyer of the Purchased Shares is a transaction exempt from
registration under the Securities Act of 1933, as amended (the "Securities
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Act"), and from qualification or registration under applicable state securities
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laws, requires or will require the Company to make any filing with, to give any
notice to or to obtain any permit, authorization, consent or approval of any
person.
2.6. Proceedings. Except as set forth in the Company SEC Reports, there is
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no action, suit, investigation or proceeding, governmental or otherwise
("Proceeding"), pending or, to the Company's knowledge, threatened against the
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Company or its affiliates, directors, officers, employees or agents, nor is
there any basis for such Proceeding known to the Company.
2.7. No Brokers. None of the Company, its affiliates or any of their
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respective directors, officers, employees or agents, as such have entered into
any Contract with any person which will result in the obligation of Buyer to pay
any finder's fees, brokerage or agent's commissions or other like payments in
connection with the negotiations leading to this Agreement or the consummation
of the transactions contemplated hereby.
2.8. SEC Filings; Financial Statements.
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(a) The Company has filed all forms, reports and documents required to
be filed by it with the Securities and Exchange Commission (the "SEC") since ---
December 31, 1999, and has heretofore made available to Buyer, in the form filed
with the SEC (excluding any exhibits thereto), (i) its Annual Reports on Form
10-K for the fiscal years ended December 31, 1999 and 2000, (ii) its Quarterly
Reports on Form 10-Q for the quarters ended March 31, 2000, June 30, 2000 and
September 30, 2000, (iii) all proxy statements relating to the Company's
meetings of stockholders (whether annual or special) held on or after
December 31, 1999, and (iv) all other forms, reports and other registration
statements, including any and all amendments
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or supplements to any of the items referred to herein, filed by the Company with
the SEC since December 31, 1999 (the forms, reports and other documents referred
to in clauses (i), (ii), (iii) and (iv) above being referred to herein,
collectively, as the "Company SEC Reports"). The Company SEC Reports (x) were
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prepared in accordance with the requirements of the Securities Act and the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as the case
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may be, and the rules and regulations thereunder, and (y) did not at the time
they were filed contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary in order to make the
statements made therein, in the light of the circumstances under which they were
made, not misleading.
(b) Each of the consolidated financial statements (including, in each
case, any notes thereto) contained in the Company SEC Reports was prepared in
accordance with United States generally accepted accounting principles applied
on a consistent basis throughout the periods indicated (except as may be
indicated in the notes thereto), and each fairly presented the consolidated
financial position, results of operations and cash flows of the Company and its
consolidated Subsidiaries as at the respective dates thereof and for the
respective periods indicated therein (subject, in the case of unaudited
statements, to normal and recurring year-end adjustments which were not and are
not expected, individually or in the aggregate, to be material in amount). Since
December 31, 2000, there has been no change in any of the significant accounting
(including tax accounting) policies, practices or procedures of the Company or
any of its Subsidiaries.
(c) Except as and to the extent set forth in the Company SEC Reports
filed with the SEC prior to the date of this Agreement, the Company and its
Subsidiaries have not incurred any liabilities or obligations of any nature
(whether accrued, absolute, contingent or otherwise), other than liabilities and
obligations which have been incurred in the ordinary course of business.
2.9. Absence of Certain Changes and Events. Except as disclosed in the
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Company SEC Reports, since December 31, 2000, (a) the Company and the its
Subsidiaries have conducted their respective businesses only in the ordinary
course and (b) there has not been any material adverse change in the business,
financial condition or results of operations of the Company and its
Subsidiaries, taken as a whole.
3. Representations, Warranties and Covenants of Buyer. Buyer represents and
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warrants to the Company as follows:
3.1. Authority. Buyer is a corporation duly organized, validly existing and
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in good standing under the laws of the State of Delaware and has all requisite
power and authority to conduct its business and operations as now being
conducted and to enter into this Agreement and to perform its obligations
hereunder. The execution, delivery and performance by Buyer of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Buyer.
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3.2. Binding Agreement. This Agreement has been duly executed and delivered
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by Buyer and is a legal, valid and binding obligation of Buyer, enforceable in
accordance with its terms, except insofar as enforceability may be limited by
principles governing the availability of equitable remedies.
3.3. No Violations. Except, as to clauses (ii), (iii), and (iv) below, as
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would not have, individually or in the aggregate, a material adverse effect on
the transactions contemplated hereby (including, without limitation, on Buyer's
ability to perform its obligations hereunder), none of the execution or delivery
by Buyer of this Agreement, the performance by Buyer of its obligations
hereunder or the consummation of the transactions contemplated hereby will (i)
violate or conflict with any term or provision of the certificate of
incorporation or bylaws (or other constituent documents) of Buyer, (ii) violate
any provision of any Law or Judgment applicable to Buyer or by which any of its
properties or assets are bound or affected, (iii) require any consent, approval,
filing or notice under any provision of any Law or Judgment applicable to Buyer,
or (iv) require any consent, approval or notice under, or violate, or be in
conflict with, or constitute a breach of or default under (with or without the
giving of notice or the lapse of time or both), or permit the termination of any
provision of, or result in the acceleration of (or give anyone the right to
accelerate) the maturity or performance of any obligation of Buyer under, any
note, bond, indenture, mortgage, deed of trust, lease, franchise, permit,
authorization, license, contract, instrument or other agreement or commitment to
which Buyer is a party or by which Buyer, or any of its assets or properties are
bound or encumbered.
3.4. No Brokers. None of Buyer, its affiliates or any of their respective
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directors, officers, employees or agents, as such have entered into any Contract
with any person which will result in the obligation of the Company to pay any
finder's fees, brokerage or agent's commissions or other like payments in
connection with the negotiations leading to this Agreement or the consummation
of the transactions contemplated hereby.
3.5. Investment Representations and Covenants.
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(a) Buyer acknowledges that it is acquiring the Purchased Shares
solely for Buyer's own account, for investment purposes, and not with a view to,
or for resale in connection with, any distribution of the Purchased Shares.
Buyer understands that the Purchased Shares have not been registered under the
Securities Act or registered or qualified under any state securities laws by
reason of specific exemptions under the provisions thereof which depend in part
upon Buyer's investment intent and on the other representations made by Buyer in
this Purchase Agreement. Buyer understands that the Company is relying upon
Buyer's representations and agreements contained in this Purchase Agreement for
the purpose of determining whether this transaction meets the requirements for
such exemptions.
(b) Buyer agrees that (i) Buyer will not sell, assign, pledge, give,
transfer or otherwise dispose of the Purchased Shares or any interest therein,
or make any offer or attempt to do any of the foregoing, unless such transaction
is pursuant to a registration of the Purchased Shares under the Securities Act
and all applicable state securities laws or a transaction that is exempt from
the registration provisions of the Securities Act and all applicable state
securities
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laws, (ii) the certificate(s) representing the Purchased Shares bear a legend
making reference to the foregoing restrictions, and (iii) the Company and any
transfer agent for the Purchased Shares shall not be required to register or
give effect to any purported transfer of the Purchased Shares except upon
evidence of compliance with the foregoing restrictions.
4. Indemnification.
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4.1. Mutual Indemnification.
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(a) Subject to written notice of such claim for indemnification being
given to such party within the appropriate survival period referred to in
Section 4.2 and further subject to the proviso set forth in clause (ii) below,
the Company covenants and agrees to indemnify, defend and hold harmless Buyer
and its affiliates and their respective stockholders, directors, officers,
employees, agents, successors and assigns, and Buyer covenants and agrees to
indemnify, defend and hold harmless the Company and its affiliates and their
respective stockholders, directors, officers, employees, agents, successors and
assigns from and against:
(i) all losses, damages, liabilities, deficiencies, obligations,
costs and expenses resulting from or arising out of any
misrepresentation or breach of warranty or any nonperformance or
breach of any covenant or agreement of such indemnifying party
contained in this Agreement; and
(ii) all claims, actions, suits, proceedings, demands, Judgments,
assessments, fines, interest, penalties, costs and expenses
(including, without limitation, settlement costs and reasonable
legal, accounting, experts and other fees, costs and expenses)
incident or relating to or resulting from any of the foregoing.
(b) Any party entitled to indemnification under Section 4.1(a) (an
"indemnified party") seeking indemnification from a party obligated to indemnify
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such party under Section 4.1(a) (an "indemnifying party") shall give prompt
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notice to the indemnifying party of any claim as to which indemnification is
sought and will give the indemnifying party the right to participate in and, if
it so desires, to control, at its own expense, the conduct of the defense of any
such claim and any litigation arising out of such claim, with counsel reasonably
satisfactory to the indemnified party. Notwithstanding an indemnifying party's
election to assume control of the defense of such claim, the indemnified party
shall have the right to employ separate counsel and to participate in the
defense of such claim, and the indemnifying party shall bear the reasonable fees
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such claim include both the indemnifying party and the
indemnified party, and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it which are different from or
additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such claim
on behalf of the indemnified party) or (iii) the indemnifying party has failed
to retain counsel reasonably satisfactory to the indemnified party within a
reasonable time of the notice of the claim. An indemnifying party
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shall not be liable for any settlement of any action or claim effected without
its consent, which consent shall not be unreasonably withheld. If an
indemnifying party assumes the defense of a claim, no settlement thereof may be
effected without the indemnified party's consent unless the sole relief is
monetary damages that are to be paid in full by the indemnifying party and there
is no finding or admission of any violation of law.
4.2. Survival of Representations and Warranties. The representations and
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warranties contained in this Agreement shall survive the Closing and remain in
full force and effect for a period of twelve (12) months after the Closing Date;
provided that the Company's representations and warranties set forth in Sections
2.1, 2.2 and 2.3 shall survive indefinitely.
5. Miscellaneous.
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5.1. Governing Law. This Agreement shall be construed in accordance with
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and governed by the laws of the State of Delaware, without regard to principles
of conflicts of laws. 5.2. Definitions. As used in this Agreement, the following
terms have the following meanings:
(a) "person" shall mean and include any individual, partnership, joint
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venture, corporation, trust, unincorporated organization or association or any
other entity or association of any kind and any governmental or regulatory
authority, federal, state, local or foreign government, any political
subdivision of any thereof and any court, panel, judge, board, bureau,
commission, agency or other entity or body exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
(b) "Lien" shall mean any security interest, lien, claim, charge,
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restrictive agreement, pledge, adverse interest or other encumbrance of any
kind.
(c) "Permitted Restriction", with respect to the Purchased Shares, as
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THE case may be, shall mean Restrictions (i) on the transfer of such shares
under applicable federal and state securities laws or (ii) applicable to such
shares created by Purchaser.
(d) "Restriction", with respect to any capital stock or other
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security, shall mean any voting or other trust or agreement, option, warrant,
escrow arrangement, proxy, buy-sell agreement, power of attorney, stockholders'
agreement or other Contract, any Judgment or any Law which, conditionally or
unconditionally, (i) grants to any person the right to purchase or otherwise
acquire, or obligates any person to sell or otherwise dispose of or issue, or
otherwise results or, whether upon the occurrence of any event or with notice or
lapse of time or both or otherwise, may result in any person acquiring (A) any
of such capital stock or other security, (B) any of the proceeds of, or any
distributions paid or which are or may become payable with respect to, any of
such capital stock or other security, or (C) any interest in such capital stock
or other security or any such proceeds or distributions; (ii) restricts or,
whether upon the occurrence of any event or with notice or lapse of time or both
or otherwise, may restrict the transfer or voting of, or the exercise of any
rights or the enjoyment of any benefits arising by reason of ownership of, any
of such capital stock or other security or any such proceeds or distributions;
or
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(iii) creates or, whether upon the occurrence of any event or with notice or
lapse of time or both or otherwise, may create a Lien or purported Lien
affecting such capital stock or other security, proceeds or distributions.
(e) "Subsidiary" means, with respect to any person, (i) a corporation
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A majority of the voting power of whose capital stock with voting power, under
ordinary circumstances, to elect directors is at the time, directly or
indirectly, owned by such person, by a subsidiary of such person, or by such
person and one or more subsidiaries of such person, (ii) a partnership in which
such person or a subsidiary of such person is, at the date of determination, a
general partner of such partnership and has the power to direct the policies and
management of such partnership or (iii) any other person in which such person, a
subsidiary of such person or such person and one or more subsidiaries of such
person, directly or indirectly, at the date of determination thereof, has (A) at
least a majority ownership interest or (B) the power to elect or direct the
election of a majority of the members of the board of directors or other
governing body of such person.
5.3. Expenses. The Company agrees to pay all expenses incurred by Buyer in
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connection with the negotiation and execution of this Agreement and the
consummation of the transactions contemplated hereby, including all fees and
disbursements of its legal counsel and the payment of any stock transfer or
stamp taxes.
5.4. Counterparts. This Agreement may be executed in several counterparts
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and as so executed shall constitute one agreement binding on the parties hereto.
5.5. Further Actions After the Closing. If, subsequent to the Closing Date,
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further documents are reasonably requested in order to carry out the provisions
and purposes of this Agreement, the parties hereto shall execute and deliver
such further documents.
5.6. Severability. In the event that any part or parts of this Agreement
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shall be held to be unenforceable to its or their full extent, then it is the
intention of the parties hereto that such part or parts shall be enforced to the
full extent permitted under the laws, and, in any event, that all other parts of
this Agreement shall remain valid and fully enforceable as if the unenforceable
part or parts had never been a part hereof.
5.7. Amendments. This Agreement may be amended only by written instrument
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signed by all parties.
5.8. Notices. Any notice or other communication required or contemplated by
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the terms of this Agreement shall be delivered in person or sent by telecopy,
overnight courier, or registered or certified mail, postage prepaid, return
receipt requested. Any such notice or other communication shall be addressed to
the intended recipient at the address set forth below such party's signature on
the signature page hereof, or at such other address of which such party shall
have given notice as herein provided. Notice shall be deemed given on the date
of delivery, in the case of personal delivery or telecopy, or on the delivery or
refusal date, as specified on the return receipt, in the case of overnight
courier or registered or certified mail.
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5.9. Entire Agreement. The provisions of this Agreement set forth the
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complete understanding and intention of the parties with respect to the subject
matter hereof and supersede all prior agreements or understandings, whether
written or oral, relating to the subject matter hereof.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
as of the date first written above.
ON COMMAND CORPORATION
By: /s/ Jerome H. Kern
______________________________
Name: Jerome H. Kern
Title: Chief Executive Officer
Address for Notices:
7900 East Union Avenue
Tower III
Denver, CO 80237
Attention: Bertram Perkel
ASCENT ENTERTAINMENT GROUP, INC.
By: /s/ Elizabeth M. Markowski
______________________________
Name: Elizabeth M. Markowski
Title: Senior Vice President
Address for Notices:
c/o Liberty Media Corporation
9197 South Peoria Street
Englewood, Colorado 80112
Attention: Elizabeth M. Markowski
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