UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM 8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d)
of the Securities
Exchange Act of 1934
Date of Report
(date of earliest event reported): November 11, 2024
LIBERTY
BROADBAND CORPORATION
(Exact name
of registrant as specified in its charter)
| Delaware | |
001-36713 | |
47-1211994 |
(State or other jurisdiction of
incorporation or organization) | |
(Commission
File Number) | |
(I.R.S. Employer
Identification No.) |
12300 Liberty Blvd.
Englewood, Colorado 80112
(Address of principal executive offices
and zip code)
Registrant's telephone number, including
area code: (720) 875-5700
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction
A.2. below):
x Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
| Title
of each class |
Trading
Symbol(s) |
Name
of each exchange on which registered |
| Series A common stock |
LBRDA |
The Nasdaq Stock Market LLC |
| Series C common stock |
LBRDK |
The Nasdaq Stock Market LLC |
| Series A Cumulative Redeemable preferred stock |
LBRDP |
The Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant is an emerging
growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ¨
If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards
provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01. Entry into a Material Definitive Agreement.
On November 12, 2024, Liberty
Broadband Corporation, a Delaware corporation (“Liberty Broadband”), entered into an Agreement and Plan of Merger (the
“Merger Agreement”) with Charter Communications, Inc., a Delaware corporation (“Charter”), Fusion
Merger Sub 1, LLC, a Delaware limited liability company and wholly owned subsidiary of Charter (“Merger LLC”), and
Fusion Merger Sub 2, Inc., a Delaware corporation and wholly owned subsidiary of Merger LLC (“Merger Sub”), whereby
subject to the terms thereof, (i) (A) Merger Sub will merge with and into Liberty Broadband (the “Merger”), with Liberty
Broadband surviving the Merger as the surviving corporation and a wholly owned subsidiary of Merger LLC; and (B) the Merger will be immediately
followed by a merger of, Liberty Broadband, as such surviving corporation, with and into Merger LLC (the “Upstream Merger”,
and together with the Merger, the “Combination”), with Merger LLC surviving the Upstream Merger as the surviving company
and a wholly owned subsidiary of Charter; and (ii) prior to the effective time of the Merger (the “Effective Time”)
(with the exact timing prior to the Effective Time to be determined by Liberty Broadband), Liberty Broadband will divest the business
of GCI, LLC, a Delaware limited liability company and a subsidiary of Liberty Broadband (“GCI”), and its subsidiaries
by way of a distribution to the holders of Liberty Broadband Common Stock (as defined below) of the equity securities of a to be formed
entity that would hold the GCI business (“Spinco”) (unless Charter consents to different terms) (the “GCI
Divestiture”, and together with the Combination and the other transactions contemplated by the Merger Agreement, the “Transactions”).
In connection with the Merger
Agreement, on November 12, 2024, (i) certain trusts related to Dr. John C. Malone (collectively, the “Malone Stockholders”)
entered into a voting agreement (the “Malone Voting Agreement”) and (ii) Gregory B. Maffei and certain related entities
(collectively, the “Maffei Stockholders”) entered into a voting agreement (the “Maffei Voting Agreement”
and together with the Malone Voting Agreement, the “Voting Agreements”), in each case with Charter and Liberty Broadband,
pursuant to which, among other things, the Malone Stockholders and the Maffei Stockholders have agreed, subject to the terms of their
respective Voting Agreements, to vote their respective shares of Liberty Broadband Series A Common Stock, par value $0.01 per share (“LBRDA”),
Liberty Broadband Series B Common Stock, par value $0.01 per share (“LBRDB”), and Liberty Broadband Series A Cumulative
Redeemable Preferred Stock, par value $0.01 per share (“LBRDP” and together with LBRDA and LBRDB, the “Voting
Stock”), in favor of the adoption of the Merger Agreement.
Agreement and Plan of Merger
Upon completion of the Combination,
Charter would own and hold, directly or indirectly, all of the assets and liabilities of Liberty Broadband (other than the assets and
liabilities of GCI and its subsidiaries), and Merger LLC would ultimately survive the Combination as a wholly owned subsidiary of Charter.
Effect
on Liberty Broadband Common Stock. In the Merger Agreement, each share of LBRDA, LBRDB and Liberty Broadband Series C Common
Stock, par value $0.01 per share (“LBRDK”, and together with LBRDA and LBRDB, the “Liberty Broadband Common
Stock”), issued and outstanding immediately prior to the Effective Time would be automatically converted into and become the
right to receive 0.236 of a share (the “Common Exchange Ratio”) of a validly issued, fully paid and nonassessable share
of Charter Class A common stock, par value $0.001 per share (“Charter Class A Common Stock” and such consideration,
the “Common Consideration”), except that (i) cash (without interest) will be paid in lieu of fractional shares of Charter
Class A Common Stock pursuant to the Merger Agreement, (ii) solely with respect to shares of LBRDB held by any person who is entitled
to demand and properly demands appraisal of such shares in accordance with, and who complies in all respects with, Section 262 of the
General Corporation Law of the State of Delaware (the “DGCL”), such shares will not be converted into the right to
receive the Common Consideration and instead holders thereof will only be entitled to receive the fair value of such shares as determined
in accordance with Section 262, and (iii) each share of Liberty Broadband Common Stock (A) held by Liberty Broadband as treasury stock
or by any of its wholly owned subsidiaries immediately prior to the Effective Time or (B) owned by Charter or any of its wholly owned
subsidiaries immediately prior to the Effective Time, in each case, will automatically be cancelled without consideration.
Effect
on Liberty Broadband Preferred Stock. In the Merger Agreement, each share of LBRDP issued and outstanding immediately prior
to the Effective Time would automatically be converted into and become the right to receive one validly issued, fully paid and nonassessable
share of Charter’s Series A Cumulative Redeemable Preferred Stock, par value $0.001 per share (the “Charter Preferred Stock”)
(such consideration, the “Preferred Consideration”, and together with the Common Consideration, the “Merger
Consideration”), except that each share of LBRDP (i) held by Liberty Broadband as treasury stock or by any of its wholly owned
subsidiaries immediately prior to the Effective Time or (ii) owned by Charter or any of its wholly owned subsidiaries immediately prior
to the Effective Time, in each case, will automatically be cancelled without consideration.
Effect
on Equity Awards. Effective as of ten (10) business days prior to the Effective Time (or such other date on or around that
time as may be determined by the Liberty Board (as defined below) (or authorized committee thereof)), restricted stock awards and restricted
stock units (other than restricted stock units held by GCI employees) that are outstanding at such time will automatically accelerate
and become fully vested (in the case of restricted stock units, with applicable performance goals in respect of performance periods that
are incomplete at such time, if any, being deemed satisfied at 100% of target) and all shares of Liberty Broadband Common Stock subject
to the applicable award, less applicable tax withholdings, that are outstanding as of the Effective Time will be treated as outstanding
shares of Liberty Broadband Common Stock in the Merger and entitled to Common Consideration. Stock options to purchase Liberty Broadband
Common Stock outstanding immediately prior to the Effective Time will automatically be converted into the right to receive a number of
validly issued, fully paid and nonassessable shares of Charter Class A Common Stock (rounded down to the nearest whole share) equal to
the quotient of (x) the product of (i) the excess, if any, of the Merger Consideration Value (as defined in the Merger Agreement) over
the per share exercise price of such stock option multiplied by (ii) the number of shares of Liberty Broadband Common Stock subject to
the stock option immediately prior to the Effective Time, divided by (y) the Parent Closing Price (as defined in the Merger Agreement),
less applicable tax withholdings.
Closing
Conditions. The closing of the Merger (the “Closing”) is subject to certain customary conditions, including
(among others): (i) the adoption of the Merger Agreement by the affirmative vote of holders of a majority of the aggregate voting power
of the outstanding shares of Voting Stock entitled to vote thereon, voting together as a single class; (ii) the adoption of the Merger
Agreement by the affirmative vote of holders of at least a majority of the aggregate voting power of the outstanding shares of Voting
Stock entitled to vote thereon (excluding certain specified holders, including Charter, the Malone Stockholders and the Maffei Stockholders,
amongst others) voting together as a separate class (i.e., a majority of the unaffiliated vote) (collectively with the approval contemplated
by clause (i), the “Liberty Broadband Requisite Approvals”); (iii) the approval of the issuance of the shares of Charter
Class A Common Stock and Charter Preferred Stock under the Merger Agreement by the affirmative vote of the holders of a majority of the
votes cast by the holders of Charter Class A Common Stock (including common units of Charter Communications Holdings, LLC (“Charter
Holdings”) held by A/N (as defined below) on an as-if-exchanged basis); (iv) the approval of the Merger Agreement and the Transactions,
including the Merger, by the affirmative vote of holders of a majority of the aggregate voting power of the outstanding shares of Charter
Class A Common Stock (including common units of Charter Holdings held by A/N on an as-if-exchanged basis) entitled to vote thereon (other
than certain specified holders, including Liberty Broadband, the Malone Stockholders and the Maffei Stockholders, amongst others) (i.e.,
a majority of the unaffiliated vote) (collectively with the approval contemplated by clause (iii), the “Charter Requisite Approvals”);
(v) to the extent applicable, any waiting period (and any extension thereof) under the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended (the “HSR Act”), and any commitments by the parties not to close before a certain date under a timing agreement
entered into with a governmental authority, in each case, in respect of the Combination or the conversion of the Liberty Broadband capital
stock pursuant to the Merger Agreement shall have expired or early termination thereof shall have been granted; (vi) the absence of any
order or law that enjoins or otherwise prohibits the closing of the Combination or any of the other transactions contemplated by the Merger
Agreement and related transaction documents; (vii) an effective registration statement on Form S-4 with respect to the Merger Consideration
to be issued in the Merger; (vii) the authorization for listing of the shares of Charter Common Stock and Charter Preferred Stock to be
issued as Merger Consideration on The Nasdaq Stock Market LLC; (viii) in the case of Charter’s obligation to close, the consummation
of the GCI Divestiture and (ix) the receipt by Liberty Broadband and Charter of opinions from their respective advisors regarding the
intended qualification of the Combination as a “reorganization” for U.S. federal income tax purposes.
GCI
Divestiture. Prior to the Effective Time (with the exact timing determined by Liberty Broadband), Liberty Broadband is required
to complete the GCI Divestiture. At the time of the completion of the GCI Divestiture, Spinco will hold all of the businesses, assets
and liabilities of GCI and its subsidiaries. The GCI Divestiture remains subject to approval by the board of directors (or a duly authorized
committee thereof) of Liberty Broadband (the “Liberty Board”) and will be taxable to Liberty Broadband and its stockholders,
with Charter agreeing to bear the corporate level tax liabilities resulting from the GCI Divestiture following the Merger. On completion
of the Combination, Charter will succeed to Liberty Broadband’s tax liabilities resulting from the GCI Divesture. Liberty Broadband
and Spinco will enter into a tax receivables agreement (the “TRA”) pursuant to which Spinco will pay Liberty Broadband
for 100% of the tax benefit arising from the tax gain corresponding to any cash tax payable in excess of $420 million. At the closing
of the Combination, Charter will become a party to the TRA and succeed to Liberty Broadband’s rights and obligations thereunder.
Parent
Owned Company Shares. Subject to the Stockholders Agreement (as defined below), including any voting limitations or restrictions
therein, Liberty Broadband will vote all shares of Charter Class A Common Stock in favor of the issuance of shares of Charter Class A
Common Stock and Charter Preferred Stock in connection with the Merger.
Representations,
Warranties and Covenants. The Merger Agreement includes certain customary representations, warranties and covenants of Liberty
Broadband, Charter, Merger Sub and Merger LLC. In addition, each of Liberty Broadband and Charter has agreed to customary “no-shop”
restrictions prohibiting each party from soliciting alternative proposals from or participating in any discussions or negotiations with,
third parties regarding alternative acquisition proposals. The Liberty Board has agreed to recommend that holders of shares of Voting
Stock (including the disinterested holders of Voting Stock, as discussed above) vote in favor of the adoption of the Merger Agreement,
subject to the right to change its recommendation if the Liberty Board determines, in good faith and in connection with an intervening
event or superior proposal, after, among other things, consulting with its outside legal counsel and its outside financial advisor, that
failure to make such change would be inconsistent with its fiduciary duties under applicable law. In the event that the Liberty Board
changes its recommendation, Charter has the right to terminate the Merger Agreement prior to the receipt of the Liberty Broadband Requisite
Approvals and receive from Liberty Broadband a termination fee equal to $460 million. In addition, the board of directors of Charter (the
“Charter Board”) has agreed to recommend that (i) holders of shares of Charter capital stock vote in favor of the approval
of (i) the issuance of shares of Charter Class Common Stock and Charter Preferred Stock as part of the Merger Consideration in the Merger
and (ii) disinterested holders of shares of Charter capital stock vote in favor of the approval of the Merger Agreement and the transactions
contemplated thereby, including the Merger, subject to the right to change its recommendation if the special committee of the Charter
Board (the “Special Committee”) or the Charter Board (acting on the recommendation of the Special Committee) determines,
in good faith and in connection with an intervening event or superior proposal, after, among other things, consulting with its outside
legal counsel and its outside financial advisor, that failure to make such change would be inconsistent with its fiduciary duties under
applicable law. In the event that the Special Committee or the Charter Board changes its recommendation, Liberty Broadband has the right
to terminate the Merger Agreement prior to the receipt of the Charter Requisite Approvals and receive from Charter a termination fee equal
to $460 million.
Termination.
The Merger Agreement, in addition to certain customary termination provisions and the right of Charter to terminate the Merger Agreement
following a change of recommendation of the Liberty Board as discussed above or the right of Liberty Broadband to terminate the Merger
Agreement following a change of recommendation of the Special Committee or Charter Board as discussed above, provides that Liberty Broadband
or Charter may terminate the Merger Agreement, subject to certain limitations, if (i) the Merger has not been consummated on or before
August 31, 2027, (ii) the Liberty Broadband Requisite Approvals are not obtained at a meeting thereof called for the purpose of approving
such matter or (iii) the Charter Requisite Approvals are not obtained at a meeting thereof called for the purpose of approving such matters.
Pro
Forma Ownership. Assuming the consummation of the Combination on November 12, 2024, (i) former holders of Liberty Broadband
Common Stock would own in the aggregate shares of Charter Class A Common Stock representing approximately 23.0% of the total number of
outstanding shares of Charter Class A Common Stock (including common units of Charter Holdings held by A/N (as defined below) on an as-if-exchanged
basis), (ii) former holders of LBRDP would own in the aggregate all outstanding shares of Charter Preferred Stock with a redemption value
of $180 million and (iii) former holders of Liberty Broadband Common Stock and LBRDP would own, in the aggregate, approximately 24.2%
of the voting power of Charter (including common units of Charter Holdings held by A/N on an as-if-exchanged basis). The foregoing percentages
are based on approximately 158.7 million shares of Charter Class A Common Stock (including common units of Charter Holdings held by A/N
on an as-if-exchanged basis), approximately 142.8 million shares of Liberty Broadband Common Stock and 7.2 million shares of LBRDP, in
each case, outstanding as of November 12, 2024.
Approval
and Recommendation. The Liberty Board has unanimously approved the Merger Agreement, the other transaction documents and the
transactions contemplated thereby, including the Merger, and recommended that the holders of shares of Voting Stock (including the disinterested
holders of shares of Voting Stock) adopt the Merger Agreement, subject to certain exceptions set forth in the Merger Agreement. Based
on the unanimous recommendation of the Special Committee, the Charter Board has unanimously approved the Merger Agreement and the transactions
contemplated thereby and resolved to recommend that the Charter stockholders vote in favor of the approval of the stock issuance and the
Merger Agreement and the transactions contemplated thereby, subject to certain exceptions set forth in the Merger Agreement.
The foregoing description
of the Merger Agreement does not purport to be complete and is qualified in its entirety by the full text of the Merger Agreement, a copy
of which is filed herewith as Exhibit 2.1 and the terms of which are incorporated by reference herein.
Voting Agreements
The Voting Agreements, as
applicable, provide that, among other things, (i) the Malone Stockholders have agreed to vote or cause to be voted their respective shares
of Voting Stock, representing approximately 48% of the total voting power of the issued and outstanding shares of Voting Stock in the
aggregate, and (ii) the Maffei Stockholders have agreed to vote or cause to be voted their respective shares of Voting Stock, representing
approximately 4% of the total voting power of the issued and outstanding shares of Voting Stock in the aggregate, in each case in favor
of, among other things, the adoption of the Merger Agreement and the approval of the transactions contemplated thereby, including the
Merger, except that in the event that the Liberty Board changes its recommendation and Charter elects not to terminate the Merger Agreement
prior to the Liberty Broadband stockholder meeting, the Malone Stockholders will only be obligated to vote shares representing the sum
of (x) 33.37% of the total voting power of the shares of Voting Stock minus (y) the aggregate voting power of the shares of Voting Stock
held by the Maffei Stockholders, in favor thereof, with any shares in excess of such amount to be voted on such matters in the same proportion
as voted by the Liberty Broadband stockholders other than the Malone Stockholders and the Maffei Stockholders. In addition, each of the
Malone Stockholders and Maffei Stockholders has agreed to (i) certain restrictions on transfers of its shares of Voting Stock, (ii) subject
to certain exceptions, certain restrictions on conversions of its shares of LBRDB into shares of LBRDA or LBRDK and (iii) waive any appraisal
rights to which it may be entitled pursuant to applicable law in connection with the Merger.
In addition, subject to certain
conditions, including that the Liberty Board has not changed its recommendation, the Malone Stockholders and Maffei Stockholders, as applicable,
have agreed to vote their respective shares of Voting Stock subject to their respective Voting Agreements against any action or proposal
in favor of any Alternative Company Transaction (as defined in the Merger Agreement) and certain other matters. The Voting Agreements
will automatically terminate upon, among other events, the termination of the Merger Agreement in accordance with its terms. Under the
Voting Agreements, each of Liberty Broadband and, effective from and following the Effective Time, Charter, jointly and severally, has
agreed to indemnify each Malone Stockholder and each Maffei Stockholder, as applicable, for certain losses incurred in connection with
or arising out of the Voting Agreement or the performance of such Malone Stockholder’s or Maffei Stockholder’s, as applicable,
obligations thereunder, including, subject to certain conditions, reasonable fees and expenses of such Malone Stockholder or Maffei Stockholder,
as applicable, incurred in the defense of any claim brought by a third party relating thereto. In addition, Liberty Broadband has agreed
to pay up to $200,000 in the aggregate of reasonable out-of-pocket costs and expenses (which cap excludes any and all filing fees payable
under the HSR Act) incurred by the Malone Stockholders or the Maffei Stockholders, as applicable, in connection with the preparation,
negotiation, execution and delivery of their respective Voting Agreement.
The Voting Agreements will
terminate upon, among other events, the termination of the Merger Agreement in accordance with its terms.
The foregoing description
of the Voting Agreements does not purport to be complete and is qualified in its entirety by the full text of the respective Voting Agreements,
copies of which are filed herewith as Exhibits 10.1 and 10.2 and the terms of which are incorporated by reference herein.
Stockholders and Letter Agreement Amendment
Simultaneously with the execution
and delivery of this Merger Agreement, Charter, Liberty Broadband and Advance/Newhouse Partnership, a New York general partnership (“A/N”)
have entered into an amendment (the “Stockholders and Letter Agreement Amendment”) to (i) that certain Second Amended
and Restated Stockholders Agreement, dated as of May 23, 2015 (as amended, the “Stockholders Agreement”), by and among
Charter, Liberty Broadband, and A/N, and (ii) that certain Letter Agreement, dated as of February 23, 2021 (the “Letter Agreement”),
by and between Charter and Liberty Broadband. The Stockholders and Letter Agreement Amendment sets forth certain agreements relating to
the governance of Charter and the participation of Liberty Broadband in Charter’s share repurchase program.
Interim
Merger Period Stock Repurchases. Pursuant to the Stockholders and Letter Agreement Amendment, each month during the pendency
of the proposed Transactions, Charter will repurchase shares of Charter Class A Common Stock from Liberty Broadband in an amount equal
to the greater of (i) $100 million, and (ii) an amount such that immediately after giving effect thereto, Liberty Broadband would have
sufficient cash to satisfy certain obligations as set forth in the Stockholders and Letter Agreement Amendment and Merger Agreement, provided
that if any repurchase would reduce Liberty Broadband’s equity interest in Charter below 25.25% after giving effect to such repurchase
or if all or a portion of such repurchase is not permitted under applicable law, then Charter shall instead loan to Liberty Broadband
an amount equal to the lesser of (x) the repurchase amount that cannot be repurchased and (y) the Liberty Broadband minimum liquidity
threshold less the repurchase amount that is repurchased, with such loan on the terms set forth in the Stockholders and Letter Agreement
Amendment. From and after the date Liberty Broadband’s exchangeable debentures are no longer outstanding, the amount of monthly
repurchases will be the lesser of (i) $100 million and (ii) an amount equal to the sum of (x) an amount such that immediately after giving
effect thereto, Liberty Broadband would satisfy certain minimum liquidity requirements as set forth in the Stockholders and Letter Agreement
Amendment and (y) the aggregate outstanding principal amount of the Liberty Broadband margin loan.
Board
Committees. During the pendency of the proposed Transactions, each of the designees that have been appointed by Liberty Broadband
to Charter’s Compensation and Benefits Committee (the “CBC”) will not participate, in their capacity as a member
of the CBC, in any discussions or decisions relating to the hiring, firing or compensation of the Chief Executive Officer or Chief Financial
Officer of Charter.
Termination.
The Stockholders and Letter Agreement Amendment terminates automatically upon the first monthly repurchase determination date
following the termination of the Merger Agreement. Upon any such termination, the Cap (as defined in the Stockholders Agreement) in respect
of Liberty Broadband for all purposes under the Stockholders Agreement and the Letter Agreement will be permanently amended to mean (a)
in respect of A/N, the greatest of (i) A/N’s Equity Interest (as defined in the Stockholders Agreement) issued at Closing (as defined
in the Stockholders Agreement); (ii) 25% and (iii) the Voting Cap (as defined in the Stockholders Agreement) applicable to the A/N Parties
(as defined in the Stockholders Agreement) and (b) in respect of Liberty Broadband, the greater of (i) the Liberty Broadband Parties’
(as defined in the Stockholders Agreement) Equity Interest in Charter calculated on a fully exchanged basis and fully diluted basis as
of the date of the transaction termination (and without taking into account any pending repurchases from Liberty Broadband pursuant to
the Letter Agreement or the Stockholders and Letter Agreement Amendment) and (ii) the Voting Cap applicable to the Liberty Parties (as
defined in the Stockholders Agreement).
The foregoing description
of the Stockholders and Letter Agreement Amendment does not purport to be complete and is qualified in its entirety by the full text of
the Stockholders and Letter Agreement Amendment, a copy of which is filed herewith as Exhibit 10.3 and the terms of which are incorporated
by reference herein.
Exchange Side Letter Agreement
Exchange. In connection
with the entry into the Merger Agreement, Liberty Broadband entered into an Exchange Side Letter Agreement (the “Exchange Side
Letter”) with its Chairman of the Board, John C. Malone, and certain of the Malone Stockholders (collectively, the “JCM
Exchange Holders”), whereby, among other things, the JCM Exchange Holders agreed to an arrangement under which Liberty Broadband
will have the right, in connection with the GCI Divestiture, to exchange certain shares of LBRDB held by such JCM Exchange Holders for
shares of LBRDK on a one-for-one basis (the “Exchange”) to avoid the application of certain related party rules that
otherwise could limit the availability of certain tax benefits to Spinco following the GCI Divestiture. If the Merger Agreement is terminated
without the Closing having occurred but following the consummation of the Exchange (the “Exchange Closing”), and unless
otherwise agreed to in writing by the JCM Exchange Holders and Liberty Broadband, the Exchange will be automatically rescinded and treated
as if neither the Exchange nor the Exchange Closing had ever occurred.
Amendment to Existing Exchange
Agreement. Further, pursuant to the terms of the Exchange Side Letter, the parties thereto agreed to amend certain provisions of that
certain Exchange Agreement, dated as of June 13, 2022, by and among Liberty Broadband and certain of the JCM Exchange Holders (the “Exchange
Agreement”), to provide that (i) solely in connection with the GCI Divestiture, Malone Series C Exchangeable Shares (as defined
in the Exchange Agreement) will not be exchanged for shares of LBRDB and the holders of such Malone Series C Exchangeable Shares will
receive the same per share consideration received by holders of shares of LBRDK, (ii) Liberty Broadband waives its right to obligate the
JCM Exchange Holders to enter into an exchange agreement with Spinco in connection with the GCI Divestiture, (iii) the Exchange Agreement
would not be terminated as a result of the JCM Exchange Holders falling below 20% voting power in connection with the GCI Divestiture,
and (iv) following the Exchange and prior to any termination of the Merger Agreement, none of the Malone Series C Exchangeable Shares
will be exchanged for shares of LBRDB. All of the independent directors of the Liberty Board approved the amendments to, and waiver under,
the Exchange Agreement.
The foregoing description
of the Exchange Side Letter does not purport to be complete and is qualified in its entirety by the full text of the Exchange Side Letter,
a copy of which is filed herewith as Exhibit 10.5 and the terms of which are incorporated by reference herein.
Other Agreements
Simultaneously
with the entry into the Merger Agreement, certain additional related agreements were entered into by Liberty Broadband and Charter, including:
| · | an
Assumption and Joinder Agreement to Tax Sharing Agreement, by and among Liberty Broadband, Charter, Grizzly Merger Sub 1, LLC (successor
to GCI Liberty, Inc.) (“Grizzly”) and Qurate Retail, Inc. (“Qurate Retail”) (the “Tax
Sharing Joinder Agreement”), pursuant to which Charter agreed to assume, effective at the Effective Time, Grizzly and Liberty
Broadband’s rights and obligations under the Tax Sharing Agreement, dated as of March 9, 2018, by and between Qurate Retail and
Grizzly (the “Tax Sharing Agreement”); and |
| · | an
Assumption and Joinder Agreement to Indemnification Agreement, by and among Liberty Broadband, Charter, Grizzly, LV Bridge, LLC, Qurate
Retail and Liberty Interactive LLC (the “Indemnification Joinder Agreement” and together with the Tax Sharing Joinder
Agreement, the “Joinder Agreements”), pursuant to which Charter agreed to assume, effective at the Effective Time,
Grizzly and Liberty Broadband’s rights and obligations under the Indemnification Agreement, dated as of March 9, 2018, by and among
Grizzly, Qurate Retail, Liberty Interactive LLC and LV Bridge, LLC (the “Indemnification Agreement”). |
The foregoing
descriptions of the Tax Sharing Joinder Agreement, the Tax Sharing Agreement, the Indemnification Joinder Agreement and the Indemnification
Agreement do not purport to be complete and are subject to, and qualified in their entirety by, the applicable agreements, copies of which
are attached as Exhibits 10.5, 10.6, 10.7 and 10.8 hereto and incorporated herein by reference.
The Merger Agreement, the
Voting Agreements, the Stockholders and Letter Agreement Amendment, the Exchange Side Letter and the Joinder Agreements (collectively,
the “Transaction Documents”) and the above descriptions have been included to provide investors and security holders
with information regarding the terms of the Transaction Documents, the GCI Divestiture, the Merger and the other transactions contemplated
by such agreements. It is not intended to provide any other factual information about Liberty Broadband, Charter, Merger LLC, Merger Sub
or their respective subsidiaries or affiliates, or equityholders. The representations, warranties, covenants and agreements set forth
in the applicable Transaction Documents were made only for the purposes of that agreement and as of specific dates, were made solely for
the benefit of the respective parties to the Transaction Documents (and the express third party beneficiaries described therein), as applicable,
and may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made for
the purposes of allocating contractual risk between the respective parties to the Transaction Documents instead of establishing these
matters as facts, as well as by information contained in each party’s Annual Report on Form 10-K and Quarterly Reports on Form 10-Q,
and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Investors
should be aware that the representations, warranties, covenants and agreements or any description thereof may not reflect the actual state
of facts or condition of Liberty Broadband, Charter, Merger LLC, Merger Sub, or any of their respective subsidiaries, affiliates, businesses,
or equityholders. Moreover, information concerning the subject matter of the representations, warranties and covenants may change after
the date the Transaction Documents, as applicable, which subsequent information may or may not be fully reflected in public disclosures
by Liberty Broadband or Charter. Accordingly, the representations and warranties in the Transaction Documents, as applicable, should not
be relied on as characterization of the actual state of facts about Liberty Broadband, Charter, Merger LLC or Merger Sub.
Item 3.02 Unregistered Sales of Equity Securities.
The information provided in
Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference. Pursuant to and in accordance with the Exchange Side
Letter and in connection with the transactions contemplated in the Merger Agreement, concurrent with the GCI Divestiture, the Malone Group
(as defined in the Exchange Side Letter) will exchange a certain number of shares of LBRDB for shares of LBRDK (the “Exchange”)
to be issued by Liberty Broadband, and following the Exchange, pursuant to and only in accordance with the Exchange Side Letter, the Malone
Group may exchange back such shares of LBRDK for shares of LBRDB (the “Rescission”). Such shares of LBRDK to be issued
in the Exchange and such shares of LBRDB to potentially be issued in the Rescission, if applicable, will not have been registered under
the Securities Act of 1933, as amended, in reliance on the exemption from registration under Section 4(a)(2) of the Securities Act of
1933, as amended.
Item 5.02. Departure of Directors or Certain Officers; Election
of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
(b) (c)
On November 11, 2024, Mr. Maffei, the President
and Chief Executive Officer, and a member of the Board of Directors of Liberty Broadband, notified Liberty Broadband that he will be stepping
down from these roles at the end of 2024. Liberty Broadband’s Chairman, Mr. Malone, will assume the additional role of interim Chief
Executive Officer of Liberty Broadband at that time.
The
information required by Items 401(b), (d), (e) and Item 404(a) of Regulation S-K relating to Mr. Malone is hereby incorporated by reference
to Liberty Broadband’s Proxy Statement for its 2024 Annual Meeting, as filed with the Securities and Exchange Commission (“SEC”) on April 25, 2024.
Item 7.01. Regulation FD Disclosure
On November
13, 2024, Liberty Broadband and Charter issued a joint press release announcing that they have entered
into the Merger Agreement. A copy of the press release is attached as Exhibit 99.1 to this Current Report on Form 8-K and is
incorporated herein by reference.
The
information provided under Item 7.01 of this Current Report on Form 8-K, including Exhibit 99.1, is being furnished and is not deemed
to be “filed” with the SEC for the purposes
of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or otherwise subject
to the liabilities of that section and is not incorporated by reference into any filing of Liberty Broadband under the Securities
Act of 1933, as amended (the “Securities Act”) or the Exchange Act, whether made before or after the date
hereof, except as shall be expressly set forth by specific reference to this Current Report on Form 8-K in such a filing.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit
No.
|
Description
|
| 2.1† |
Agreement
and Plan of Merger, dated November 12, 2024, by and among Liberty Broadband Corporation, Charter Communications, Inc., Fusion Merger
Sub 1, LLC and Fusion Merger Sub 2, Inc. |
| 10.1 |
Voting
Agreement, dated November 12, 2024, by and among Liberty Broadband Corporation, Charter Communications, Inc., The John C. Malone
1995 Revocable Trust, The Leslie A. Malone 1995 Revocable Trust, The Malone Family Land Preservation Foundation and the John C. Malone
June 2003 Charitable Unitrust |
| 10.2 |
Voting
Agreement, dated November 12, 2024, by and among Liberty Broadband Corporation, Charter Communications, Inc., Gregory B. Maffei,
Maven GRAT 1, LLC, Maven 2017-1 GRAT, LLC and the Maffei Foundation |
| 10.3 |
Amendment
No. 1 to the Second Amended and Restated Stockholders Agreement and the Letter Agreement, dated November 12, 2024, by and among Liberty
Broadband Corporation, Charter Communications, Inc. and Advance/Newhouse Partnership |
| 10.4 |
Exchange
Side Letter Agreement, dated November 12, 2024, by and among Liberty Broadband Corporation, John C. Malone, The John C. Malone 1995
Revocable Trust, The Leslie A. Malone 1995 Revocable Trust and the John C. Malone June 2003 Charitable Unitrust |
| 10.5 |
Assumption
and Joinder Agreement to Tax Sharing Agreement, made and entered into as of November 12, 2024,
by and among Liberty Broadband Corporation, Charter Communications, Inc., Grizzly Merger Sub 1, LLC and
Qurate Retail, Inc. |
| 10.6 |
Assumption
and Joinder Agreement to Indemnification Agreement, made and entered into as of November 12, 2024,
by and among Liberty Broadband Corporation, Charter Communications, Inc., Grizzly Merger Sub
1, LLC, Qurate Retail, Inc., Liberty Interactive LLC and LV Bridge, LLC. |
| 99.1 |
Joint
Press Release, dated November 13, 2024 |
| 104 |
Cover
Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101) |
† Schedules have been omitted pursuant
to Item 601(b)(2) of Regulation S-K. Liberty Broadband hereby undertakes to furnish supplemental copies of any of the omitted schedules
upon request by the Securities and Exchange Commission (“SEC”); provided, however, that Liberty Broadband may request
confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended, for any schedules so furnished.
Cautionary Note Regarding Forward-Looking Statements
This
Current Report on Form 8-K includes certain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933,
as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, including certain statements relating to the completion
of the proposed transaction, the timing of the proposed transaction and other matters related to such proposed transaction. All
statements other than statements of historical fact are “forward-looking statements” for purposes of federal and state securities
laws. These forward-looking statements generally can be identified by phrases such as “possible,” “potential,”
“intends” or “expects” or other words or phrases of similar import or future or conditional verbs such as “will,”
“may,” “might,” “should,” “would,” “could,” or similar variations. These forward-looking
statements involve many risks and uncertainties that could cause actual results and the timing of events to differ materially from those
expressed or implied by such statements, including, but not limited to: historical financial information may not be representative of
future results; there may be significant transaction costs and integration costs in connection with the proposed transaction (including
significant tax liability); the effect of the announcement of the proposed transaction on the ability of Liberty Broadband and Charter
to operate their respective businesses and retain and hire key personnel and to maintain favorable business relationships; the parties
may not realize the potential benefits of the proposed transaction in the near term or at all; the satisfaction of all conditions to the
proposed transaction (including stockholder and regulatory approvals); the ability of Liberty Broadband to consummate the spin-off of
its GCI business; the proposed transaction may not be consummated; Liberty Broadband and Charter may need to use resources that are needed
in other parts of its business to do so; there may be liabilities that are not known, probable or estimable at this time; the proposed
transaction may result in the diversion of management’s time and attention to issues relating to the proposed transaction and integration;
unfavorable outcome of legal proceedings; risks related to disruption of management time from ongoing business operations due to the proposed
transaction; risks inherent to the business may result in additional strategic and operational risks, which may impact Liberty Broadband’s
and/or Charter’s risk profiles, which each company may not be able to mitigate effectively; and other risks and uncertainties detailed
in periodic reports that Liberty Broadband and Charter file with the SEC. These forward-looking statements speak only as of the date of
this Current Report on Form 8-K, and Liberty Broadband and Charter expressly disclaim any obligation or undertaking to disseminate any
updates or revisions to any forward-looking statement contained herein to reflect any change in Liberty Broadband’s or Charter’s
expectations with regard thereto or any change in events, conditions or circumstances on which any such statement is based. Please refer
to the publicly filed documents of Liberty Broadband and Charter, including their most recent Forms 10-K and 10-Q, as such risk factors
may be amended, supplemented or superseded from time to time by other reports Liberty Broadband or Charter subsequently file with the
SEC, for additional information about Liberty Broadband and Charter and about the risks and uncertainties related to Liberty Broadband’s
and Charter’s businesses which may affect the statements made in this Current Report on Form 8-K.
Additional Information
Nothing in this Current Report
on Form 8-K shall constitute a solicitation to buy or an offer to sell shares of common stock of Liberty Broadband or Charter. The proposed
offer and issuance of shares of Charter common stock and Charter preferred stock in the proposed transaction will be made only pursuant
to an effective registration statement on Form S-4, including a joint proxy statement of Liberty Broadband and Charter and prospectus
of Charter. LIBERTY BROADBAND AND CHARTER STOCKHOLDERS AND OTHER INVESTORS ARE URGED TO READ THE REGISTRATION STATEMENT WHEN IT IS AVAILABLE,
TOGETHER WITH ALL RELEVANT SEC FILINGS REGARDING THE PROPOSED TRANSACTION, AND ANY OTHER RELEVANT DOCUMENTS FILED AS EXHIBITS THEREWITH,
AS WELL AS ANY AMENDMENTS OR SUPPLEMENTS TO THOSE DOCUMENTS, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION.
After the registration statement is declared effective, the joint proxy statement/prospectus and other relevant materials for the proposed
transaction will be mailed to all Liberty Broadband and Charter stockholders. Copies of these SEC filings will be available, free of charge,
at the SEC’s website (http://www.sec.gov). Copies of the filings together with the materials incorporated by reference therein will
also be available, without charge, by directing a request to Liberty Broadband Corporation, 12300 Liberty Boulevard, Englewood, Colorado
80112, Attention: Investor Relations, Telephone: (720) 875-5700 or Charter Communications, Inc., 400 Washington Boulevard, Stamford, Connecticut
06902, Attention: Media, (203) 905-7801.
Participants in a Solicitation
Liberty Broadband anticipates
that the following individuals will be participants (the “Liberty Broadband Participants”) in the solicitation of proxies
from holders of Liberty Broadband’s LBRDA and LBRDB common stock and LBRDP preferred stock in connection with the proposed transaction:
John C. Malone, Chairman of the Liberty Board, Gregg L. Engles, Julie D. Frist, Richard R. Green, Sue Ann R. Hamilton, J. David Wargo
and John E. Welsh III, all of whom are members of the Liberty Board, Gregory B. Maffei, Liberty Broadband’s President, Chief Executive
Officer and Director, and Brian J. Wendling, Liberty Broadband’s Chief Accounting Officer and Principal Financial Officer. Information
regarding the Liberty Broadband Participants, including a description of their direct or indirect interests, by security holdings or otherwise,
and Liberty Broadband’s transactions with related persons can be found under the captions “Proposal 1 – The Election
of Directors Proposal”, “Director Compensation”, “Proposal 3 – The Incentive Plan Proposal”,
“Proposal 4 – The Say-On-Pay Proposal”, “Executive Officers”, “Executive Compensation”,
“Security Ownership of Certain Beneficial Owners and Management—Security Ownership of Management” and “Certain
Relationships and Related Party Transactions” contained in Liberty Broadband’s definitive proxy statement for its 2024 annual
meeting of stockholders (the “Liberty Proxy Statement”), which was filed with the SEC on April 25, 2024 and is available
at: https://www.sec.gov/ix?doc=/Archives/edgar/data/1611983/000110465924051479/tm242809d6_def14a.htm. To the extent that certain Liberty
Broadband Participants or their affiliates have acquired or disposed of security holdings since the “as of” date disclosed
in the Liberty Proxy Statement, such transactions have been or will be reflected on Statements of Change in Ownership on Form 4 or amendments
to beneficial ownership reports on Schedules 13D filed with the SEC, which are available at: https://www.sec.gov/edgar/browse/?CIK=1611983&owner=exclude.
Additional information regarding the Liberty Broadband Participants in the proxy solicitation and a description of their interests will
be contained in the proxy statement for Liberty Broadband’s special meeting of stockholders and other relevant materials to be filed
with the SEC in respect of the contemplated transactions when they become available. These documents can be obtained free of charge from
the sources indicated above.
Charter anticipates that the
following individuals will be participants (the “Charter Participants”) in the solicitation of proxies from holders
of Charter Common Stock and LBRDP preferred stock in connection with the proposed transaction: Eric
L. Zinterhofer, Non-Executive Chairman of the Charter Board, W. Lance Conn, Kim C. Goodman, Gregory B. Maffei, John D. Markley, Jr., David
C. Merritt, James E. Meyer, Steven A. Miron, Balan Nair, Michael A. Newhouse, Mauricio Ramos and Carolyn J. Slaski, all of whom are members
of the Charter Board, Christopher L. Winfrey, President, Chief Executive Officer and Director, Jessica M. Fischer, Chief Financial Officer,
and Kevin D. Howard, Executive Vice President, Chief Accounting Officer and Controller. Information regarding the Charter Participants,
including a description of their direct or indirect interests, by security holdings or otherwise, and Charter’s transactions with
related persons can be found under the captions “Proposal No. 1: Election of Directors”, “Compensation Committee Interlocks
and Insider Participation”, “Compensation Discussion and Analysis”, “Certain Beneficial Owners of Charter Class
A Common Stock”, “Certain Relationships and Related Transactions”, “Proposal No. 2: Increase the Number of Shares
in 2019 Stock Incentive Plan”, “Pay Versus Performance” and “CEO Pay Ratio” contained in Charter’s
definitive proxy statement for its 2024 annual meeting of stockholders (the “Charter Proxy Statement”), which was filed
with the SEC on March 14, 2024 and is available at: https://www.sec.gov/ix?doc=/Archives/edgar/data/1091667/000119312524067965/d534477ddef14a.htm.
To the extent that certain Charter Participants or their affiliates have acquired or disposed of security holdings since the “as
of” date disclosed in the Charter Proxy Statement, such transactions have been or will be reflected on Statements of Change in Ownership
on Form 4, which are available at: https://www.sec.gov/edgar/browse/?CIK=1091667&owner=exclude. Additional information regarding certain
of the Charter Participants in the proxy solicitation and a description of their interests will be contained in the information statement
and other relevant materials to be filed with the SEC in respect of the contemplated transactions when they become available. These documents
can be obtained free of charge from the sources indicated above.
SIGNATURE
Pursuant to the requirements
of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned
hereunto duly authorized.
Date: November 13,
2024
| |
LIBERTY BROADBAND CORPORATION |
| |
|
| |
By: |
/s/ Katherine C. Jewell |
| |
Name: Katherine C. Jewell |
| |
Title: Vice President and Secretary |
Exhibit 2.1
FINAL
AGREEMENT AND PLAN OF MERGER
by and among
CHARTER COMMUNICATIONS, INC.,
FUSION MERGER SUB 2, INC.,
FUSION MERGER SUB 1, LLC
and
LIBERTY BROADBAND CORPORATION
Dated
as of November 12, 2024
TABLE
OF CONTENTS
Page
| Article I |
| |
| DEFINITIONS
AND CONSTRUCTION |
| |
| Section 1.1 |
Certain Definitions |
3 |
| Section 1.2 |
Additional Defined Terms |
22 |
| Section 1.3 |
Terms Generally |
24 |
| |
|
|
| Article II |
| |
| THE
COMBINATION |
| |
| Section 2.1 |
The Combination |
25 |
| Section 2.2 |
Organizational Documents |
26 |
| Section 2.3 |
Effective Time; Upstream Effective Time |
27 |
| Section 2.4 |
Closing |
27 |
| Section 2.5 |
Directors and Officers |
27 |
| Section 2.6 |
Effect on Capital Stock |
28 |
| Section 2.7 |
Exchange of Certificates and Book Entry Shares |
30 |
| Section 2.8 |
Company Equity Awards |
33 |
| Section 2.9 |
Further Assurances |
34 |
| |
|
|
| Article III |
| |
| REPRESENTATIONS
AND WARRANTIES OF THE COMPANY |
| |
| Section 3.1 |
Organization; Standing and Power |
35 |
| Section 3.2 |
Capitalization |
35 |
| Section 3.3 |
Subsidiaries |
37 |
| Section 3.4 |
Authorization |
38 |
| Section 3.5 |
Consents and Approvals; No Violations |
39 |
| Section 3.6 |
SEC Reports and Financial Statements |
39 |
| Section 3.7 |
No Undisclosed Liabilities |
41 |
| Section 3.8 |
Absence of Certain Changes |
41 |
| Section 3.9 |
Litigation |
42 |
| Section 3.10 |
Compliance with Applicable Laws |
42 |
| Section 3.11 |
Real Property |
42 |
| Section 3.12 |
Intellectual Property, IT Systems, Data Privacy
and Security |
42 |
| Section 3.13 |
Insurance |
43 |
| Section 3.14 |
Tax |
43 |
| Section 3.15 |
Tax Matters |
44 |
| Section 3.16 |
Employees and Employee Benefits |
45 |
| Section 3.17 |
Material Contracts |
47 |
| Section 3.18 |
Anti-Takeover Statutes |
48 |
| Section 3.19 |
Ownership in Parent |
49 |
| Section 3.20 |
Brokers and Other Advisors |
49 |
| Section 3.21 |
Opinion of Financial Advisor |
49 |
| Section 3.22 |
Disclosure Documents |
49 |
| Section 3.23 |
Affiliate Transactions |
50 |
| |
|
|
| Article IV |
| |
| REPRESENTATIONS
AND WARRANTIES OF PARENT, |
| MERGER
SUB AND MERGER LLC |
| |
| Section 4.1 |
Organization; Standing and Power |
51 |
| Section 4.2 |
Capitalization |
51 |
| Section 4.3 |
Authorization |
53 |
| Section 4.4 |
Consents and Approvals; No Violations |
54 |
| Section 4.5 |
SEC Reports and Financial Statements |
55 |
| Section 4.6 |
No Undisclosed Liabilities |
57 |
| Section 4.7 |
Absence of Certain Changes |
57 |
| Section 4.8 |
Litigation |
57 |
| Section 4.9 |
Compliance with Applicable Laws |
57 |
| Section 4.10 |
Tax |
58 |
| Section 4.11 |
Tax Matters |
59 |
| Section 4.12 |
Brokers and Other Advisors |
59 |
| Section 4.13 |
Disclosure Documents |
59 |
| Section 4.14 |
Opinion of Financial Advisors |
60 |
| Section 4.15 |
Ownership of Company Common Stock |
60 |
| Section 4.16 |
Operations of Merger Sub and Merger LLC |
60 |
| Section 4.17 |
Anti-Takeover Statutes |
60 |
| Section 4.18 |
Sufficient Funds |
60 |
| |
|
|
| Article V |
| |
| COVENANTS |
| |
| Section 5.1 |
Conduct of the Company’s Business Pending the
Effective Time |
61 |
| Section 5.2 |
Conduct of Parent’s Business Pending the Effective
Time |
66 |
| Section 5.3 |
No Solicitation by the Company; Alternative Company
Transaction |
67 |
| Section 5.4 |
Company Change of Recommendation |
69 |
| Section 5.5 |
No Solicitation by Parent; Alternative Parent Transaction |
70 |
| Section 5.6 |
Parent Change of Recommendation |
72 |
| Section 5.7 |
Registration Statement and Joint Proxy Statement |
74 |
| Section 5.8 |
Information and Access |
77 |
| Section 5.9 |
Reasonable Best Efforts |
78 |
| Section 5.10 |
Section 16 Matters |
80 |
| Section 5.11 |
Tax Matters |
80 |
| Section 5.12 |
Public Announcements |
82 |
| Section 5.13 |
Expenses |
83 |
| Section 5.14 |
Indemnification and Insurance |
83 |
| Section 5.15 |
Notification of Certain Matters |
85 |
| Section 5.16 |
Defense of Litigation |
85 |
| Section 5.17 |
State Takeover Laws |
86 |
| Section 5.18 |
Stock Exchange Delisting |
86 |
| Section 5.19 |
Listing |
86 |
| Section 5.20 |
Reservation of Parent Capital Stock |
86 |
| Section 5.21 |
Obligations of Merger Sub and Merger LLC |
86 |
| Section 5.22 |
Financing Matters |
87 |
| Section 5.23 |
Financing Cooperation |
90 |
| Section 5.24 |
GCI Divestiture |
92 |
| Section 5.25 |
Termination of Affiliate Contracts |
94 |
| Section 5.26 |
Voting of Parent Common Stock |
94 |
| Section 5.27 |
Waiver of Conflicts Regarding Representation |
94 |
| |
|
|
| Article VI |
| |
| CONDITIONS
PRECEDENT |
| |
| Section 6.1 |
Conditions Precedent to the Obligations of Each Party |
96 |
| Section 6.2 |
Conditions Precedent to the Obligations of Parent,
Merger Sub and Merger LLC |
97 |
| Section 6.3 |
Conditions Precedent to the Obligations of the Company |
98 |
| |
|
|
| Article VII |
| |
| TERMINATION |
| |
| Section 7.1 |
Termination |
99 |
| Section 7.2 |
Effect of Termination |
100 |
| Section 7.3 |
Payments |
101 |
| |
|
|
| Article VIII |
| |
| MISCELLANEOUS |
| |
| Section 8.1 |
Effectiveness of Representations, Warranties and Agreements |
103 |
| Section 8.2 |
Notices |
103 |
| Section 8.3 |
Entire Agreement; No Third-Party Beneficiaries |
104 |
| Section 8.4 |
Assignment |
104 |
| Section 8.5 |
Amendment and Supplements |
105 |
| Section 8.6 |
Headings |
105 |
| Section 8.7 |
Waiver |
105 |
| Section 8.8 |
No Additional Representations |
105 |
| Section 8.9 |
Counterparts |
106 |
| Section 8.10 |
Applicable Law |
106 |
| Section 8.11 |
Jurisdiction |
106 |
| Section 8.12 |
Waiver of Jury Trial |
106 |
| Section 8.13 |
Joint Participation in Drafting this Agreement |
107 |
| Section 8.14 |
Enforcement of this Agreement |
107 |
| Section 8.15 |
Limited Liability |
107 |
| Section 8.16 |
Severability |
107 |
| Section 8.17 |
Incorporation of Exhibits |
107 |
| Section 8.18 |
No Joint Venture |
108 |
| Section 8.19 |
Special Committee Matters |
108 |
| Exhibit A |
— |
Form of Certificate
of Designations |
| Exhibit B |
— |
Form of Company Tax Opinion
Representation Letter |
| Exhibit C |
— |
Form of Parent Tax Opinion
Representation Letter |
AGREEMENT
AND PLAN OF MERGER
This
AGREEMENT AND PLAN OF MERGER (this “Agreement”) is made and entered into as of November 12, 2024, by and
among Charter Communications, Inc., a Delaware corporation (“Parent”), Fusion Merger Sub 1, LLC, a single member
Delaware limited liability company and a direct Wholly Owned Subsidiary of Parent (“Merger LLC”), Fusion Merger Sub
2, Inc., a Delaware corporation and a direct Wholly Owned Subsidiary of Merger LLC (“Merger Sub”), and Liberty
Broadband Corporation, a Delaware corporation (the “Company”).
RECITALS
WHEREAS, the Parties intend
that Merger Sub shall merge with and into the Company (the “Merger”), on the terms and subject to the conditions set
forth in this Agreement and in accordance with Section 251 of the General Corporation Law of the State of Delaware (the “DGCL”),
with the Company surviving the Merger as the Surviving Corporation;
WHEREAS, the Merger shall
be immediately followed by a merger of the Surviving Corporation with and into Merger LLC (the “Upstream Merger”,
and together with the Merger, the “Combination”), in accordance with Section 267 of the DGCL and Section 18-209(i) of
the Delaware Limited Liability Company Act (the “DLLCA”), with Merger LLC surviving the Upstream Merger as the Surviving
Company;
WHEREAS, the Merger shall
be mutually interdependent with and a condition precedent to the Upstream Merger, and the Upstream Merger shall be effected immediately
following the Effective Time in accordance with the DGCL and the DLLCA;
WHEREAS, simultaneously with
the execution and delivery of this Agreement, and as a condition to the willingness of Parent to enter into this Agreement, the Malone
Group is entering into a voting agreement with Parent (the “Malone Voting Agreement”);
WHEREAS, simultaneously with
the execution and delivery of this Agreement, and as a condition to the willingness of Parent to enter into this Agreement, the Maffei
Group is entering into a voting agreement with Parent (the “Maffei Voting Agreement” and together with the Malone
Voting Agreement, the “Voting Agreements”);
WHEREAS, as of the date of
this Agreement, the Company beneficially owns 45,560,806 shares of Parent Class A Common Stock (the “Company Owned Parent
Shares”);
WHEREAS, simultaneously with
the execution and delivery of this Agreement, Parent, the Company and Advance/Newhouse Partnership, a New York general partnership (“A/N”),
are entering into an amendment (the “Stockholders and Letter Agreement Amendment”) to (i) that certain Second
Amended and Restated Stockholders Agreement, dated as of May 23, 2015 (the “Stockholders Agreement”), by and
among Parent, the Company and A/N, and (ii) that certain Letter Agreement, dated as of February 23, 2021 (the “Letter
Agreement”), by and between Parent and the Company, setting forth certain agreements relating to the governance of Parent and
the participation of the Company in Parent’s share repurchase program;
WHEREAS, the board of directors
of Parent (the “Parent Board”) has established a special committee thereof consisting only of independent and disinterested
directors (the “Parent Special Committee”) to, among other things, consider and negotiate the Transaction Documents
and the transactions contemplated hereby and thereby;
WHEREAS, the Parent Special
Committee has unanimously (i) determined that the Transaction Documents to which Parent is a party and the transactions contemplated
hereby and thereby, including the Certificate of Designations and the Merger, are advisable and fair to, and in the best interests of,
Parent and the Parent Stockholders (including the Parent Disinterested Stockholders) and (ii) recommended that the Parent Board
approve (including for purposes of Section 203 of the DGCL) and declare advisable the Transaction Documents to which Parent is a
party and the transactions contemplated hereby and thereby, including the Certificate of Designations and the Merger, direct that the
Stock Issuance and this Agreement and the transactions contemplated hereby, including the Merger, be submitted to the Parent Stockholders
for approval and resolve to recommend that the Parent Stockholders approve the Stock Issuance and this Agreement and the transactions
contemplated hereby, including the Merger;
WHEREAS, the Parent Board,
including at least a majority of (a) the Unaffiliated Directors (as defined in the Parent Charter and the Stockholders Agreement)
and (b) the directors designated by A/N pursuant to the Stockholders Agreement, upon the unanimous recommendation of the Parent
Special Committee, has unanimously (i) determined that the Transaction Documents to which Parent is a party and the transactions
contemplated hereby and thereby, including the Certificate of Designations, the Merger and the consideration to be paid in connection
therewith, are advisable and fair to, and in the best interests of, Parent and the Parent Stockholders (including the Parent Disinterested
Stockholders), (ii) approved (including for purposes of Section 203 of the DGCL) and declared advisable the Transaction Documents
to which Parent is a party and the transactions contemplated hereby and thereby, including the Certificate of Designations and the Merger,
(iii) directed that the Stock Issuance and this Agreement and the transactions contemplated hereby, including the Merger, be submitted
to the Parent Stockholders for approval, and (iv) resolved to recommend that the Parent Stockholders approve the Stock Issuance
and this Agreement and the transactions contemplated hereby;
WHEREAS, the board of directors
of the Company (the “Company Board”) has unanimously (i) determined that the Transaction Documents and the transactions
contemplated hereby and thereby, including the Merger, are advisable and fair to, and in the best interests of, the Company and its stockholders
(including the Company Disinterested Stockholders), (ii) approved (including for purposes of Section 203 of the DGCL) and declared
advisable the Transaction Documents and the transactions contemplated hereby and thereby, including the Merger, (iii) directed that
this Agreement be submitted to the Company Voting Stockholders (including the Company Disinterested Stockholders) for adoption, and (iv) resolved
to recommend that the Company Voting Stockholders (including the Company Disinterested Stockholders) approve the adoption of this Agreement;
WHEREAS, the board of directors
of Merger Sub (the “Merger Sub Board”) has unanimously (i) determined that this Agreement and the transactions
contemplated hereby, including the Merger, are advisable and fair to, and in the best interests of, Merger Sub and its sole stockholder,
(ii) approved and declared advisable this Agreement and the transactions contemplated hereby, including the Merger, (iii) recommended
that the sole stockholder of Merger Sub approve the adoption of this Agreement and (iv) directed that this Agreement be submitted
to the sole stockholder of Merger Sub for adoption;
WHEREAS, the sole member
of Merger LLC has (i) determined that this Agreement and the transactions contemplated hereby are advisable and fair to, and in
the best interests of, Merger LLC and its sole member, (ii) approved and declared advisable this Agreement and the transactions
contemplated hereby and (iii) taken all action as is necessary or advisable to cause Merger LLC to authorize the Upstream Merger
in accordance with Merger LLC’s governing documents and Section 267 of the DGCL and Section 18-209(i) of the DLLCA;
and
WHEREAS, the Merger and the
Upstream Merger are being undertaken pursuant to a single integrated plan, and for U.S. federal income tax purposes, it is intended that
(i) the Combination shall qualify as a “reorganization” within the meaning of Section 368(a) of the Internal
Revenue Code of 1986 (the “Code”), and (ii) this Agreement, the GCI Divestiture Documents, and the provisions
of the Stockholders and Letter Agreement Amendment governing the repurchases of shares and transfers of proceeds to the Company’s
creditors shall together constitute a “plan of reorganization” within the meaning of Sections 1.368-2(g) and 1.368-3(a) of
the Treasury Regulations.
NOW, THEREFORE, in consideration
of the representations, warranties, covenants and agreements contained herein and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the Parties agree as follows:
Article I
DEFINITIONS
AND CONSTRUCTION
Section 1.1 Certain
Definitions. As used in this Agreement, the following terms will have the following meanings:
“2053 Exchangeable
Debentures” means the 3.125% Exchangeable Senior Debentures due 2053, issued pursuant to the 2053 Exchangeable Debentures Indenture.
“2053 Exchangeable
Debentures Indenture” means that certain Indenture, by and between the Company and U.S. Bank Trust Company, National Association,
dated as of February 28, 2023, as amended, restated, amended and restated, supplemented or otherwise modified from time to time
in a manner not prohibited by this Agreement.
“2054 Exchangeable
Debentures” means the 3.125% Exchangeable Senior Debentures due 2054, issued pursuant to the 2054 Exchangeable Debentures Indenture.
“2054 Exchangeable
Debentures Indenture” means that certain Indenture, by and between the Company and U.S. Bank Trust Company, National Association,
dated as of July 2, 2024, as amended, restated, amended and restated, supplemented or otherwise modified from time to time in a
manner not prohibited by this Agreement.
“Action”
means any claim, audit, action, suit, proceeding, arbitration, mediation or investigation by or before any Governmental Authority.
“Affiliate”
means, with respect to any Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled
by, or is under common control with such specified Person; provided, that none of the Persons listed in the following clauses
(i) – (vi) shall be deemed to be Affiliates of the Company or its Subsidiaries or any of their respective
Investees or any Person listed in any other such clause: (i) Liberty TripAdvisor Holdings, Inc. taken together with its Subsidiaries
and any of their respective Investees, (ii) Qurate Retail, Inc. taken together with its Subsidiaries and any of their respective
Investees, (iii) Liberty Global plc taken together with its Subsidiaries and any of their respective Investees, (iv) Liberty
Latin America Ltd. taken together with its Subsidiaries and any of their respective Investees, (v) Atlanta Braves Holdings, Inc.
taken together with its Subsidiaries and any of their respective Investees, (vi) Liberty Media taken together with its Subsidiaries
and any of their respective Investees and (vii) any entity that is a spinoff of any of the entities listed in the immediate clauses
(i) – (vi) taken together with any of their Subsidiaries and any of their respective Investees. For purposes
of this definition, and for the avoidance of doubt, (x) natural persons shall not be deemed to be Affiliates of each other and (y) no
Person shall be an Affiliate of any other Person solely because they share one or more common officers or members of their respective
board of managers, board of directors or other controlling governing body. For purposes of this Agreement, unless otherwise expressly
specified, prior to the Effective Time, (a) neither Parent nor any of its Subsidiaries nor the entity of which the Company and Parent
holds Portfolio Securities (the “Portfolio Company”) nor any of its Subsidiaries will be deemed to be Affiliates of
the Company or any of the Company’s Subsidiaries, whether or not they otherwise would be Affiliates of the Company or any of the
Company’s Subsidiaries under the foregoing definition and vice versa and (b) neither the Company nor any of its Subsidiaries
nor the Portfolio Company nor any of its Subsidiaries will be deemed to be Affiliates of Parent or any of Parent’s Subsidiaries,
whether or not they otherwise would be Affiliates of Parent or any of Parent’s Subsidiaries under the foregoing definition and
vice versa.
“Alternative Company
Transaction” means any of the following transactions: (a) any merger, consolidation, share exchange, business combination,
reorganization, recapitalization, liquidation, dissolution, tender offer or other similar transaction involving the Company and any Person
which would result in such Person beneficially owning twenty-five percent (25%) or more of the aggregate outstanding equity securities
of the Company (or the surviving or resulting entity) or securities representing twenty-five (25%) or more of voting power of the Company
(or the surviving or resulting entity), (b) any direct or indirect sale, lease, exchange, transfer or other disposition to, or acquisition
or purchase by, any Person, in a single transaction or a series of related transactions, of assets or properties of the Company and its
Subsidiaries that constitute twenty-five percent (25%) or more of the fair market value of the assets and properties of the Company and
its Subsidiaries, taken as a whole, (c) any direct or indirect acquisition or purchase, in a single transaction, or series of related
transactions, by any Person of twenty-five percent (25%) or more of the aggregate outstanding equity securities or securities representing
twenty-five percent (25%) or more of the voting power of the Company or (d) any other transaction having a similar effect to those
described in any of clauses (a), (b) or (c), in each case, other than the transactions contemplated hereby
(including any actual or potential GCI Divestiture or any actual or potential GCI Proceeding); provided, that for the avoidance
of doubt, all references to “Person” in this definition shall include any “Group”.
“Alternative Company
Transaction Proposal” means any offer, inquiry, proposal or indication of interest, written or oral (whether binding or non-binding
and other than an offer, inquiry, proposal or indication of interest by Parent or a Subsidiary of Parent), for an Alternative Company
Transaction.
“Alternative Parent
Transaction” means any of the following transactions: (a) any merger, consolidation, share exchange, business combination,
reorganization, recapitalization, liquidation, dissolution, tender offer or other similar transaction involving Parent and any Person
which would result in such Person beneficially owning twenty-five percent (25%) or more of the aggregate outstanding equity securities
of Parent (or the surviving or resulting entity) or securities representing twenty-five (25%) or more of voting power of Parent (or the
surviving or resulting entity), (b) any direct or indirect sale, lease, exchange, transfer or other disposition to, or acquisition
or purchase by, any Person, in a single transaction or a series of related transactions, of assets or properties of Parent and its Subsidiaries
that constitute twenty-five percent (25%) or more of the fair market value of the assets and properties of Parent and its Subsidiaries,
taken as a whole, (c) any direct or indirect acquisition or purchase, in a single transaction, or series of related transactions,
by any Person of twenty-five percent (25%) or more of the aggregate outstanding equity securities or securities representing twenty-five
percent (25%) or more of the voting power of Parent or (d) any other transaction having a similar effect to those described in any
of clauses (a), (b) or (c), in each case, other than the transactions contemplated hereby; provided,
that for the avoidance of doubt, all references to “Person” in this definition shall include any “Group”.
“Alternative Parent
Transaction Proposal” means any offer, inquiry, proposal or indication of interest, written or oral (whether binding or non-binding
and other than an offer, inquiry, proposal or indication of interest by the Company or a Subsidiary of the Company), for an Alternative
Parent Transaction (other than an Excluded Alternative Parent Transaction).
“Baker Botts”
means Baker Botts L.L.P.
“beneficial
owner”, “beneficial ownership”, “beneficially owns” and “owns beneficially”
have the meaning given such terms in Rule 13d-3 under the Exchange Act and a Person’s beneficial ownership of capital stock
or other equity security shall be calculated in accordance with the provisions of such Rule, but, in the case of the Malone Group,
without duplication of the conversion of any shares of Company Series B Common Stock into Company Series A Common Stock in
accordance with the Company Charter or any shares of Company Series B Common Stock into Company Series C Common Stock (or vice
versa) pursuant to the Exchange Agreement or the Exchange Side Letter.
“Business Day”
means any day that is not a Saturday, a Sunday or other day on which banks are required or authorized by Law to be closed in the State
of New York.
“Certificate of
Designations” means a certificate of designations to the Parent Charter in substantially the form set forth as Exhibit A
(or such other form as is mutually agreed to by Parent and the Company) authorizing the Parent Preferred Stock.
“Common Exchange
Ratio” means 0.236, which represents a number of shares of Parent Class A Common Stock (or a fraction thereof) issuable
as consideration for each share of Company Common Stock in the Merger in accordance with Section 2.6.
“Communications
Licenses” means all licenses, authorizations and certificates of public convenience and necessity issued or granted by the
FCC or the State Commissions held by the Company or its Subsidiaries in each applicable jurisdiction with respect to the business of
the Company and its Subsidiaries as presently conducted.
“Company
Adverse Recommendation Change” means any of the following actions of the Company Board or any committee thereof: (a) qualifying,
amending or modifying, in a manner adverse to Parent, or withdrawing or publicly proposing to qualify, amend or modify, in a manner adverse
to Parent, or withdraw, the Company Board Recommendation or failing to include the Company Board Recommendation in the Joint Proxy Statement
when filed and when disseminated to the Company Stockholders (and at all times thereafter prior to receipt of the Company Requisite Approvals),
(b) publicly recommending, adopting or approving, or proposing to publicly recommend, adopt or approve, any Alternative Company
Transaction Proposal, (c) making any public recommendation in favor of a tender offer or exchange offer, other than, for the avoidance
of doubt, any “stop look and listen” communication of the type contemplated by Rule 14d-9 under the Exchange Act, or
failing to recommend against acceptance of such tender or exchange offer by the close of business on the tenth (10th) Business Day after
the commencement of such tender offer or exchange offer pursuant to Rule 14d-2 under the Exchange Act, (d) other than
with respect to a tender offer or exchange offer, the Company Board failing to publicly reaffirm its recommendation of this Agreement
within five (5) Business Days after Parent so requests in writing if an Alternative Company Transaction Proposal or any material
modification thereto has been made public and not withdrawn (provided, that Parent shall be entitled to make such written request
for reaffirmation only once for each Alternative Company Transaction Proposal and once for each material amendment to such Alternative
Company Transaction Proposal) or (e) resolving, agreeing or publicly proposing to do any of the foregoing.
“Company Bylaws”
means the Bylaws of the Company, as in effect on the date of this Agreement.
“Company Capital
Stock” means the Company Common Stock and the Company Preferred Stock.
“Company Charter”
means the Restated Certificate of Incorporation of the Company, effective as of November 4, 2014, as amended and as in effect on
the date of this Agreement, including the Certificate of Designations of Series A Cumulative Redeemable Preferred Stock of the Company,
as amended.
“Company Common
Stock” means the Company Series A Common Stock, the Company Series B Common Stock and the Company Series C Common
Stock.
“Company Debt”
means (i) the Exchangeable Debentures, (ii) the Company Margin Facility, (iii) any other Indebtedness of the Company and
its Subsidiaries (excluding GCI and its Subsidiaries) listed on Section 3.17(a)(ii) of the Company Disclosure Letter
and (iv) any other Indebtedness of the Company and its Subsidiaries (excluding GCI and its Subsidiaries) permitted to be incurred
under Section 5.1.
“Company Disclosure
Letter” means the disclosure letter delivered by the Company to Parent concurrently with the execution of this Agreement.
“Company Employee”
means an employee of the Company or any of its Subsidiaries.
“Company Equity
Awards” means the Company Stock Options, the Company Unit Awards and the Company Restricted Common Stock Awards.
“Company Governance
Instruments” means the Company Charter and the Company Bylaws.
“Company Intervening
Event” means any material fact, event, change, development or circumstance that (a) was not known or reasonably foreseeable
(or, if known, the consequences or magnitude of which were not known or reasonably foreseeable) by the Company Board as of the date of
this Agreement, which material fact, event, change, development or circumstance (or consequences or magnitude of which) becomes known
to the Company Board prior to the Company Requisite Approvals and that affects, or would reasonably be likely to affect, in a material
manner the business, assets, properties, Liabilities, results of operations or condition (financial or otherwise) of the Company and
its Subsidiaries, taken as a whole; and (b) does not relate to (i) the receipt, existence or terms of any Alternative Company
Transaction Proposal, (ii) any fact, event, change, development or circumstance to the extent relating to Parent or any of its Subsidiaries
or (iii) any changes in the market price or trading volume of the Company, Parent or any of their Portfolio Securities, in each
case in and of itself (it being understood that the facts or occurrences giving rise or contributing to such change described in clause
(iii) may be taken into account when determining a Company Intervening Event to the extent otherwise satisfying this definition).
“Company IT Systems” means
the computer systems, including software, hardware, middleware, servers, workstations and routers owned, leased, used, or licensed by
the Company or any of its Subsidiaries, which are material to the business of the Company and its Subsidiaries as currently conducted
by the Company and its Subsidiaries.
“Company Margin
Facility” means the credit facilities under that certain margin loan agreement (the “Margin Loan Agreement”),
dated as of August 31, 2017, as amended, restated, amended and restated, supplemented or otherwise modified from time to time, by
and among LBC Cheetah 6, LLC, a Delaware limited liability company and a Wholly Owned Subsidiary of the Company, BNP Paribas, New York
Branch, as administrative agent, and the lenders and other parties thereto from time to time.
“Company Material
Adverse Effect” means any change, effect, event, occurrence, state of facts or development that, individually or in the aggregate,
has had or would reasonably be expected to have a material adverse effect on the business, properties, assets, Liabilities, results of
operations or financial condition of the Company and its Subsidiaries taken as a whole; provided, however, that none of
the following shall constitute or be taken into account in determining whether a Company Material Adverse Effect has occurred or would
reasonably be expected to occur: (a) changes in conditions generally in the United States or global economy or in the capital, credit
or financial markets, including exchange or interest rates, credit availability and liquidity and price levels or trading volumes in
the United States or foreign securities markets, (b) changes in general political conditions (including any changes arising out
of any outbreak or escalation of hostilities, civil disobedience, sabotage, acts of terrorism, military action or war (whether or not
declared) or any other national or international calamity after the date hereof), (c) any change in GAAP or applicable Law, including
in the repeal thereof, or in the enforcement thereof, (d) the announcement or pendency of the Transaction Documents or the transactions
contemplated thereby or hereby (including any stockholder litigation arising from such announcement or pendency and including the effects
of such announcement or pendency on the price or trading volume of the Company Capital Stock, the Parent Capital Stock or the Portfolio
Securities or the credit rating of the Company or any of its Subsidiaries) (it being understood and agreed that this clause (d) shall
not apply with respect to any representation or warranty that is intended to address the consequences of the execution, delivery or the
announcement of the Transaction Documents or the consummation of the transactions thereby or hereby), (e) any earthquakes, hurricanes,
tornados, and other wind storms, floods, pandemics (including COVID-19) or epidemics or other natural disasters or acts of God, (f) any
action taken or failure to act by the Company or its Subsidiaries which is expressly required by the Transaction Documents to which the
Company is a party (other than any such obligation to operate in the ordinary course or any action required by Section 5.9(a))
or that has been expressly consented to by Parent under the terms of this Agreement, (g) any failure, in and of itself, in the financial
or operating performance of the Company to meet published or unpublished revenue or earning projections, forecasts, expectations or budgets
for any period (provided, that the events, occurrences, facts, conditions, changes, developments or effects giving rise to or
contributing to such failure, if not otherwise excluded from this definition of “Company Material Adverse Effect,” may be
taken into account in determining whether a Company Material Adverse Effect has occurred or would reasonably be expected to occur), (h) any
change, effect, event, occurrence, state of facts or development that, individually or in the aggregate, has had, or would reasonably
be expected to have, a material adverse effect on the price of the Company Owned Parent Shares (it being understood that the underlying
facts or occurrences giving rise or contributing to such material adverse effect may be taken into account when determining a Company
Material Adverse Effect to the extent not otherwise excluded by this definition), (i) any change, effect, event, occurrence, state
of facts or development that, individually or in the aggregate, has had, or would reasonably be expected to have, a material adverse
effect on the Portfolio Company’s and its Subsidiaries’ and, from and after the GCI Divestiture, GCI’s and its Subsidiaries’
respective businesses, assets, properties, Liabilities, results of operations and/or financial condition (it being understood that the
underlying facts or occurrences giving rise or contributing to such material adverse effect may be taken into account when determining
a Company Material Adverse Effect to the extent not otherwise excluded by this definition), or (j) any item set forth on Section 1.1(e) of
the Company Disclosure Letter, except in the case of each of clauses (a), (b), (c) and (e), to the extent
that such changes, effects, events, occurrences, state of facts or developments affect the Company and its Subsidiaries in a disproportionate
manner relative to other participants in the industries in which the Company and its Subsidiaries participate (in which case only the
incremental disproportionate effect may be taken into account in determining whether there has been a Company Material Adverse Effect);
provided, however, that Parent’s, the Portfolio Company’s and their respective Subsidiaries’, and, from
and after the consummation of the GCI Divestiture, GCI Spinco’s, GCI’s and their respective Subsidiaries’ businesses,
assets, properties, Liabilities, results of operations and/or financial condition and any change, effect, event, occurrence, state of
facts or development with respect thereto shall be excluded for purposes of any determination as to the existence of a “Company
Material Adverse Effect”, except, subject to clauses (h) and (i) of this definition above, to the extent
such change, effect, event, occurrence, state of facts or development independently impacts the Company or any of its Subsidiaries (excluding,
from and after the consummation of the GCI Divestiture, GCI Spinco, GCI or any of their respective Subsidiaries), and then such change,
effect, event, occurrence, state of facts or development shall only be taken into account for purposes of Company Material Adverse Effect
to the extent of such independent impact thereon.
“Company
Plan” means each “employee benefit plan”, as defined in Section 3(3) of ERISA (whether or not subject
to ERISA) and each employment, bonus, deferred compensation, incentive compensation, change in control, retention, stock purchase, stock
option or other equity or equity-based compensation, severance or termination pay, hospitalization, medical, life or other insurance,
fringe benefit, perquisite, paid time off, vacation, relocation, supplemental unemployment benefits, profit-sharing, pension or retirement
plan, program, policy, agreement or arrangement and each other employee benefit or compensatory plan, program, policy, agreement or arrangement,
sponsored, maintained or contributed to or required to be contributed to by the Company or by any trade or business, whether or not incorporated
(“Company ERISA Affiliate”), that together with the Company would be deemed a “controlled group”
within the meaning of Section 4001(a)(14) of ERISA, for the benefit of any current or former employee, director or other service
provider of the Company or any of its Subsidiaries or with respect to which the Company or any of its Subsidiaries has any Liability;
provided that any plan, program, policy, agreement or arrangement (i) that is sponsored solely by GCI or its Subsidiaries
and (ii) in respect of which the Company and its Subsidiaries (excluding GCI and its Subsidiaries) will not have following the GCI
Divestiture, and could not reasonably be expected to have following the GCI Divestiture, any Liability shall not be considered a Company
Plan for purposes of this definition.
“Company Preferred
Stock” means the Series A Cumulative Redeemable Preferred Stock, par value $0.01 per share, of the Company.
“Company PSU Award”
means an award of restricted stock units issued under the Company Stock Plans in respect of a certain number of shares of the specified
series of Company Common Stock, that is subject to performance-based vesting conditions.
“Company Requisite
Approvals” means the Company Stockholder Approval and the Company Disinterested Stockholder Approval.
“Company Restricted
Common Stock Award” means an award of a restricted share of Company Common Stock issued under the Company Stock Plans.
“Company RSU Award”
means an award of restricted stock units issued under the Company Stock Plans in respect of a certain number of shares of the specified
series of Company Common Stock, excluding any Company PSU Awards.
“Company Section 16
Officer” means any person that the Company has determined to be an “officer” of the Company within the meaning
of Rule 16a-1(f) of the Exchange Act.
“Company Series A
Common Stock” means the Series A common stock, par value $0.01 per share, of the Company.
“Company Series B
Common Stock” means the Series B common stock, par value $0.01 per share, of the Company.
“Company Series B
Stock Option” means a stock option to purchase shares of Company Series B Common Stock issued under the Company Stock
Plans.
“Company Series C
Common Stock” means the Series C common stock, par value $0.01 per share, of the Company.
“Company Series C
Stock Option” means a stock option to purchase shares of Company Series C Common Stock issued under the Company Stock
Plans.
“Company Stock Options”
means the Company Series B Stock Options and the Company Series C Stock Options.
“Company Stock Plan”
means the Liberty Broadband Corporation 2024 Omnibus Incentive Plan, the Liberty Broadband Corporation 2019 Omnibus Incentive Plan, the
Liberty Broadband Corporation 2014 Omnibus Incentive Plan (Amended and Restated as of March 11, 2015), the GCI Liberty, Inc.
2018 Omnibus Incentive Plan and the GCI Liberty, Inc. Transitional Stock Adjustment Plan, in each case, as amended.
“Company Stockholder”
means a holder of Company Common Stock or Company Preferred Stock.
“Company Tax Opinion”
means (a) the tax opinion, dated as of the Closing Date, referred to in Section 6.3(d), and (b) if required in
connection with the filing of the Registration Statement, the opinion as to the material U.S. federal income tax consequences of the
Merger, to be delivered by Company Tax Counsel for purposes of the Registration Statement including the Joint Proxy Statement.
“Company Tax Opinion
Representation Letter” means the representation letter substantially in the form of Exhibit B, with such changes,
updates or refinements, agreed to (with such agreement not to be unreasonably withheld, conditioned or delayed) by Parent, the Company,
Parent Tax Counsel and Company Tax Counsel, as may be reasonably necessary to reflect any changes in, or clarifications of, facts prior
to the Closing, to be executed by the Company, and dated and effective as of the Closing Date (and if applicable, as of the date of any
Tax Opinions to be delivered in connection with the Registration Statement), delivered to each of the tax counsel providing the Tax Opinions
as a condition to, and in connection with, the issuance of the Tax Opinions.
“Company Tax Opinion
Representations” means the representations in the Company Tax Opinion Representation Letter.
“Company Unit Awards”
means the Company RSU Awards and the Company PSU Awards.
“Company Voting
Stockholders” means the holders of shares of Company Series A Common Stock, Company Series B Common Stock or Company
Preferred Stock.
“Competition Law”
means any Law that is designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or
lessening of competition through merger or acquisition or restraint of trade.
“Contract”
means any legally binding written or binding oral contract, agreement, instrument, commitment or undertaking (including leases, licenses,
mortgages, notes, guarantees, sublicenses, subcontracts and purchase orders).
“control”
(including the terms “controlled,” “controlled by” and “under common control with”) means the possession,
directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a Person,
whether through the ownership of securities or partnership or other ownership interests, as trustee or executor, by contract or credit
arrangement or otherwise.
“Convertible Securities”
means, with respect to any Person, (a) any securities that are convertible into or exercisable or exchangeable for any shares (or
other units) of any class or series of equity securities of such Person, whether upon conversion, exercise, or exchange, pursuant to
antidilution provisions of such securities or otherwise (other than, for purposes of this Agreement, the Parent Class B Common Stock
or the Company Series B Common Stock) and (b) any subscriptions, options, rights, warrants or calls (or any similar securities)
or agreements or arrangements of any character, in each case to acquire equity securities of such Person.
“Copyrights”
means registered and unregistered copyrights, mask works, computer programs, database rights, moral rights and similar rights in protectable
material, including rights to use and all renewals and extensions thereof and registrations of the foregoing and applications therefor,
and equivalents of the foregoing.
“Covered Person”
means the Persons listed on Section 1.1(a) of the Company Disclosure Letter.
“Data Security Requirements”
means all applicable Laws and regulatory requirements to the extent relating to the collection, processing and control of Personal Data
(including the California Consumer Privacy Act, the Regulation (EU) 2016/679 of The European Parliament and of the Council of 27 April 2016
on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data, and repealing
Directive 95/46/EC (the “GDPR”) and the Regulation of the European Parliament and of the Council concerning the respect
for private life and the protection of Personal Data in electronic communications and repealing Directive 2002/58/EC).
“Dr. Malone”
means John C. Malone, an individual.
“Encumbrance”
means any mortgage, deed of trust, lien (statutory or otherwise), pledge, hypothecation, charge, title retention device, restriction,
covenant, title defect, assignment, adverse claim, restriction, encumbrance, option, right of first refusal or first offer, preemptive
right or security interest of any kind or nature (including any restriction on the voting of any security, any restriction on the transfer
of any security or other asset, any restriction on the receipt of any income derived from any asset, any restriction on the use of any
asset and any restriction on the possession, exercise or transfer of any other attribute of ownership of any asset, but other than restrictions
under applicable securities Laws), whether voluntarily incurred or arising by operation of Law.
“Equity”
means any and all shares of capital stock of the applicable Person and Convertible Securities of such Person. For the avoidance of doubt,
any security of a Person that is exchangeable into capital stock of another Person shall not be considered “Equity” of such
first Person for purposes of this Agreement.
“ERISA”
means the Employee Retirement Income Security Act of 1974, and all regulations promulgated thereunder.
“Exchange Act”
means the Securities Exchange Act of 1934, and the rules and regulations promulgated thereunder.
“Exchange Agreement”
means that certain Exchange Agreement, dated as of June 13, 2022, by and among John C. Malone, the John C. Malone 1995 Revocable
Trust U/A DTD 3/6/1995 and the Company, as may be amended from time to time.
“Exchange Side Letter”
means that certain Exchange Side Letter, dated as of the date hereof, by and among John C. Malone, the Company, John C. Malone 1995 Revocable
Trust U/A DTD 3/6/1995, John C. Malone June 2003 Charitable Remainder Unitrust and The Leslie A. Malone 1995 Revocable Trust.
“Exchangeable Debentures
Indentures” means the 2053 Exchangeable Debentures Indenture and the 2054 Exchangeable Debentures Indenture, or either of them,
as the context may require.
“Exchangeable Debentures”
means the 2053 Exchangeable Debentures and the 2054 Exchangeable Debentures, or either of them, as the context may require.
“Excluded Alternative
Parent Transaction” means an Alternative Parent Transaction that would not, or would not reasonably be expected to, require
Parent to abandon or terminate the Combination, or that would not, or would not reasonably be expected to (i) materially impair,
hinder, impede or delay or (ii) prohibit or prevent the consummation of the Combination.
“FCC”
means the United States Federal Communications Commission.
“GAAP”
means United States generally accepted accounting principles.
“GCI”
means GCI, LLC, a Delaware limited liability company.
“GCI Debt”
means (a) Indebtedness under (i) the 4.750% Senior Notes due 2028, issued pursuant to that certain Indenture, by and between
GCI and MUFG Union Bank, N.A., as trustee, dated as of October 7, 2020, as amended, restated, amended and restated, supplemented
or otherwise modified from time to time, (ii) that certain Eighth Amended and Restated Credit and Guarantee Agreement, dated as
of October 15, 2021, by and among GCI, the Subsidiary Guarantors (as defined therein) party thereto, the lenders party thereto,
and Credit Agricole Corporate and Investment Bank, as administrative agent, as amended through Amendment Agreement No. 1, dated
as of June 12, 2023, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time
and (iii) that certain Amended and Restated Term Note, by and between GCI Holdings, LLC and Wells Fargo Bank, National Association,
dated as of May 1, 2023, as amended, restated, amended and restated, supplemented or otherwise modified from time to time, and (b) any
other Indebtedness of GCI or its Subsidiaries.
“GCI Divestiture
Documents” means (i) the GCI Divestiture Separation and Distribution Agreement, (ii) the GCI Divestiture Tax Sharing
Agreement, (iii) the GCI Divestiture Tax Receivables Agreement, and (iv) such other documents or arrangements as the Company
determines are reasonably necessary, advisable or appropriate to implement the GCI Divestiture pursuant to Section 5.24(c).
“GCI Divestiture
Separation and Distribution Agreement” means the separation and distribution agreement contemplated by the Separation Principles
to be entered into by the Company and GCI Spinco (and to which Parent will become a party pursuant to the joinder agreement described
in Section 5.24(e)) in connection with the GCI Divestiture, which separation and distribution agreement will be consistent
in all material respects with the Separation Principles.
“GCI Divestiture
Tax Receivables Agreement” means the tax receivables agreement to be entered into by the Company and GCI Spinco (and to which
Parent will become a party pursuant to the joinder agreement described in Section 5.24(e)) in connection with the GCI Divestiture,
which tax receivables agreement will be consistent in all material respects with the Separation Principles.
“GCI Divestiture
Tax Sharing Agreement” means the tax sharing agreement to be entered into by the Company and GCI Spinco (and to which Parent
will become a party pursuant to the joinder agreement described in Section 5.24(e)) in connection with the GCI Divestiture,
which tax sharing agreement will be consistent in all material respects with the Separation Principles.
“GCI Employee Unit
Award” means a Company Unit Award held by an individual who provides services primarily or solely to GCI or its Subsidiaries
(for the avoidance of doubt, excluding any individuals who provide services to Liberty Media).
“Governmental Authority”
means any supranational, national, federal, state, county, local or municipal government, or other political subdivision thereof, or
any court, tribunal or arbitral body and any entity exercising executive, legislative, judicial, regulatory, taxing, administrative,
prosecutorial or arbitral functions of or pertaining to government, domestic or foreign; provided, that such term shall not include
any stock exchange or listing company.
“Governmental Permit”
means any consent, license, permit, grant, or other authorization of a Governmental Authority that is required for the operation of such
entity’s business or the holding of any of its material assets or properties; provided, that such term shall not include
any Communications Licenses.
“Group”
has the meaning ascribed to such term in Section 13(d)(3) of the Exchange Act.
“HSR Act”
means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.
“Indebtedness”
means, with respect to any Person, without duplication (whether or not the recourse of the lender is to the whole of the assets of such
Person or only to a portion thereof), (a) all liabilities or other obligations (including all obligations in respect of principal,
accrued interests, penalties, fees and premiums) of such Person (i) for borrowed money, (ii) evidenced by notes, bonds, debentures
or other similar instruments (whether or not negotiable), (iii) in respect of letters of credit, bankers’ acceptances, bank
guarantees, surety bonds or similar instruments (whether or not negotiable) issued for the account of such Person regardless of whether
drawn upon, (iv) created or arising under conditional sale or other title retention agreement with respect to property acquired
or issued or assumed as the deferred purchase price of property or services (excluding trade accounts payable in the ordinary course
of business consistent with past practice), (v) in respect of any securitization transaction, (vi) consisting of net obligations
of any interest rate, currency or commodity hedging arrangements or (vii) relating to a lease obligation required to be capitalized
under GAAP or attributable to sale/leaseback transactions of such Person; and (b) every obligation of others of the kind described
in the preceding clause (a) that such Person has guaranteed, that is secured by an Encumbrance on any asset of such Person
or that is otherwise such Person’s legal obligation. Notwithstanding the foregoing, in no event shall the following constitute
Indebtedness: (v) intercompany indebtedness between the Company and its Wholly Owned Subsidiaries (other than GCI and its Subsidiaries)
incurred in the ordinary course of business consistent with past practice that will be (and is) terminated and repaid in full on or prior
to the Effective Time, (w) trade accounts payable, deferred revenues, liabilities associated with customer prepayments, in each
case, incurred in the ordinary course of business consistent with past practice, (x) operating leases, (y) obligations under
employment agreements and (z) prepaid or deferred revenue and deferred tax liabilities.
“Indemnification
Agreement Joinder” means the Assumption and Joinder Agreement to Indemnification Agreement, dated as of the date hereof, by
and among Parent, the Company, Qurate and the other parties thereto.
“Intellectual Property”
means any and all of the following in any jurisdiction throughout the world, and all corresponding rights: (a) inventions (whether
or not patentable or reduced to practice), all improvements thereto and all Patents; (b) Trademarks; (c) works of authorship
(whether or not copyrightable) and Copyrights; (d) trade secrets; (e) rights of privacy and publicity, including rights to
the use of names, likenesses, images, voices, signatures and biographical information of real persons; and (f) rights in software.
“Investee”
of any Person means any Person in which such first Person owns or controls an equity or voting interest.
“Joinder Agreements”
means the Tax Sharing Agreement Joinder, the Indemnification Agreement Joinder, and the joinder agreements described in Section 5.24(e).
“Knowledge”
means, with respect to the Company, the actual knowledge, after due inquiry, of any of the individuals set forth on Section 1.1(b) of
the Company Disclosure Letter, and, with respect to Parent, the actual knowledge, after due inquiry, of any of the individuals set forth
on Section 1.1(b) of the Parent Disclosure Letter.
“Law”
means all foreign, federal, state, provincial, local or municipal laws (including common law), statutes, ordinances, regulations and
rules of any Governmental Authority, and all Orders.
“LBC Available Liquidity”
means, as of any determination date, an amount equal to the sum of (i) unrestricted cash on the balance sheet of the Company and
its Subsidiaries (other than GCI and its Subsidiaries) on such determination date minus $50 million and (ii) an amount equal to
the unused available revolving borrowings under the outstanding Company Margin Facility such that LTV (as defined in the Margin Loan
Agreement as in effect on the date of this Agreement) as of such date would not exceed 50% minus $250 million.
“LBC Cash Liabilities”
means, as of any determination date, the aggregate amount of cash in the reasonable judgment of the Company on such determination date
that is required to pay, repay, redeem, repurchase or otherwise settle any Company Debt (other than any Parent Loan Facility) (including
any interest or any related premiums) due within the 30 days immediately following such determination date (including, for the avoidance
of doubt, any Exchangeable Debentures that are subject to redemption or exchange pursuant Section 5.22(a) and any Exchangeable
Debentures subject to repurchase, exchange or redemption pursuant to Section 5.22(c)).
“Liabilities”
means debts, liabilities, commitments and obligations, whether accrued or fixed, absolute or contingent, matured or unmatured, determined
or determinable, known or unknown, asserted or unasserted, including those arising under any Law, Action or Order and those arising under
any Contract.
“Liberty Media”
means Liberty Media Corporation, a Delaware corporation.
“Liberty Media Letter
Agreement” means that certain Letter Agreement, dated as of the date hereof, by and among Parent, the Company and Liberty Media.
“Liberty Media Side
Letter” means the agreement, dated as of the date hereof, from Parent to Liberty Media and the Company.
“Lookback Date”
means January 1, 2021.
“Maffei Group”
means Gregory B. Maffei and Maven GRAT 1, LLC, Maven 2017-1 GRAT, LLC and the Maffei Foundation.
“Malone Group”
means the John C. Malone 1995 Revocable Trust U/A DTD 3/6/1995, The Malone Family Land Preservation Foundation, the John C. Malone June 2003
Charitable Remainder Unitrust and The Leslie A. Malone 1995 Revocable Trust.
“Nasdaq”
means The Nasdaq Stock Market LLC.
“Non-GCI Subsidiaries”
means the Subsidiaries of the Company other than GCI, GCI Spinco, and any Subsidiaries of GCI and GCI Spinco.
“O’Melveny”
means O’Melveny & Myers LLP.
“Order”
means any judgment, order, writ, award, preliminary or permanent injunction or decree of any Governmental Authority.
“Parent Adverse
Recommendation Change” means any of the following actions of the Parent Board or any committee thereof, including the Parent
Special Committee: (a) qualifying, amending or modifying, in a manner adverse to the Company, or withdrawing or publicly proposing
to qualify, amend or modify, in a manner adverse to the Company, or withdraw, the Parent Board Recommendation or the Parent Special Committee
Recommendation or failing to include the Parent Board Recommendation and the Parent Special Committee Recommendation in the Joint Proxy
Statement when filed and when disseminated to the Parent Stockholders (and at all times thereafter prior to receipt of the Parent Requisite
Approvals), (b) publicly recommending, adopting or approving, or proposing to publicly recommend, adopt or approve, any Alternative
Parent Transaction Proposal, (c) making any public recommendation in favor of a tender offer, other than, for the avoidance of doubt,
any “stop look and listen” communication of the type contemplated by Rule 14d-9 under the Exchange Act, or exchange
offer or failing to recommend against acceptance of such tender or exchange offer by the close of business on the tenth (10th)
Business Day after the commencement of such tender offer or exchange offer pursuant to Rule 14d-2 under the Exchange Act, (d) other
than with respect to a tender offer or exchange offer, the Parent Board failing to publicly reaffirm its recommendation of this Agreement
within five (5) Business Days after the Company so requests in writing if an Alternative Parent Transaction Proposal or any material
modification thereto has been made public and not withdrawn (provided, that the Company shall be entitled to make such written
request for reaffirmation only once for each Alternative Parent Transaction Proposal and once for each material amendment to such Alternative
Parent Transaction Proposal) or (e) resolving, agreeing or publicly proposing to do any of the foregoing.
“Parent Bylaws”
means the Bylaws of Parent, as in effect on the date of this Agreement.
“Parent Capital
Stock” means the Parent Common Stock and the Parent Preferred Stock.
“Parent Charter”
means the Amended and Restated Certificate of Incorporation of Parent, effective as of May 18, 2016, as amended and as in effect
on the date of this Agreement.
“Parent Class A
Common Stock” means the Class A common stock, par value $0.001 per share, of Parent.
“Parent Class B
Common Stock” means the Class B common stock, par value $0.001 per share, of Parent.
“Parent Common Stock”
means the Parent Class A Common Stock and the Parent Class B Common Stock.
“Parent Disclosure
Letter” means the disclosure letter delivered by Parent to the Company concurrently with the execution of this Agreement.
“Parent Equity Awards”
means the Parent Stock Options, the Parent RSU Awards, the Parent PSU Awards and the Parent Restricted Stock.
“Parent Governance
Instruments” means the Parent Charter and the Parent Bylaws.
“Parent Intervening
Event” means any material fact, event, change, development or circumstance (a) that was not known or reasonably foreseeable
(or, if known, the consequences or magnitude of which were not known or reasonably foreseeable) by Parent Special Committee (in the case
of a Parent Adverse Recommendation Change by the Parent Special Committee) or the Parent Board (in the case of a Parent Adverse Recommendation
Change by the Parent Board) as of the date of this Agreement, which material fact, event, change, development or circumstance (or consequences
or magnitude of which) becomes known to the Parent Special Committee (in the case of a Parent Adverse Recommendation Change by the Parent
Special Committee), or the Parent Board (in the case of a Parent Adverse Recommendation Change by the Parent Board) prior to the Parent
Requisite Approvals and that affects, or would reasonably be likely to affect, in a material manner the business, assets, properties,
Liabilities, results of operations or condition (financial or otherwise) of Parent and its Subsidiaries, taken as a whole and (b) does
not relate to (i) the receipt, existence or terms of any Alternative Parent Transaction Proposal or (ii) any changes in the
market price or trading volume of the Company, Parent or any of their Portfolio Securities in each case in and of itself (it being understood
that the facts or occurrences giving rise or contributing to such change described in clause (ii) may be taken into account
when determining a Parent Intervening Event to the extent otherwise satisfying this definition).
“Parent Loan Facility”
means the Company Loan Facility (as defined in the Stockholders and Letter Agreement Amendment).
“Parent Material
Adverse Effect” means any change, effect, event, occurrence, state of facts or development that, individually or in the aggregate,
has had or would reasonably be expected to have a material adverse effect on the business, properties, assets, Liabilities, results of
operations or condition (financial or otherwise) of Parent and its Subsidiaries taken as a whole; provided, however, that
none of the following shall constitute or be taken into account in determining whether a Parent Material Adverse Effect has occurred
or would reasonably be expected to occur: (a) changes in conditions generally in the United States or global economy or in the capital,
credit or financial markets, including exchange or interest rates, credit availability and liquidity and price levels or trading volumes
in the United States or foreign securities markets, (b) changes in general political conditions (including any changes arising out
of any outbreak or escalation of hostilities, civil disobedience, sabotage, acts of terrorism, military action or war (whether or not
declared) or any other national or international calamity after the date hereof), (c) any change in GAAP or applicable Law, including
in the repeal thereof, or in the enforcement thereof, (d) the announcement or pendency of the Transaction Documents or the transactions
contemplated thereby or hereby (including any stockholder litigation arising from such announcement or pendency and including the effects
of such announcement or pendency on the price or trading volume of the Parent Capital Stock or the Portfolio Securities or the credit
rating of Parent or any of its Subsidiaries) (it being understood and agreed that this clause (d) shall not apply with respect
to any representation or warranty that is intended to address the consequences of the execution, delivery or the announcement of the
Transaction Documents or the consummation of the transactions thereby or hereby), (e) any earthquakes, hurricanes, tornados, and
other wind storms, floods, pandemics (including COVID-19) or epidemics or other natural disasters or acts of God, (f) any action
taken or failure to act by Parent or its Subsidiaries which is expressly required by the Transaction Documents to which Parent or its
Subsidiaries is a party (other than any such obligation to operate in the ordinary course or any action required by Section 5.9(a))
or that has been expressly consented to by the Company under the terms of this Agreement, (g) any failure, in and of itself, in
the financial or operating performance of Parent to meet published or unpublished revenue or earning projections, forecasts, expectations
or budgets for any period (provided, that the events, occurrences, facts, conditions, changes, developments or effects giving
rise to or contributing to such failure, if not otherwise excluded from this definition of “Parent Material Adverse Effect,”
may be taken into account in determining whether a Parent Material Adverse Effect has occurred or would reasonably be expected to occur),
or (h) any change, effect, event, occurrence, state of facts or development that, individually or in the aggregate, has had, or
would reasonably be expected to have, a material adverse effect on the Portfolio Company’s and its Subsidiaries’ businesses,
assets, properties, Liabilities, results of operations and/or financial condition (it being understood that the underlying facts or occurrences
giving rise or contributing to such material adverse effect may be taken into account when determining a Parent Material Adverse Effect
to the extent not otherwise excluded by this definition), except in each of cases of clauses (a), (b), (c) and
(e), to the extent that such changes, effects, events, occurrences, state of facts or developments affect Parent and its Subsidiaries
in a disproportionate manner relative to other participants in the industries in which Parent and its Subsidiaries participate (in which
case only the incremental disproportionate effect may be taken into account in determining whether there has been a Parent Material Adverse
Effect).
“Parent Preferred
Stock” means the Series A Cumulative Redeemable Preferred Stock, par value $0.001 per share, to be issued by Parent.
“Parent PSU Awards”
means restricted stock units with respect to shares of Parent Common Stock that are subject to performance-based vesting conditions.
“Parent Requisite
Approvals” means the Parent Stockholder Approval and the Parent Disinterested Stockholder Approval.
“Parent Restricted
Stock” means restricted shares of Parent Common Stock.
“Parent RSU Awards”
means restricted stock units with respect to shares of Parent Common Stock, other than Parent PSU Awards.
“Parent Section 16
Officer” means any person that Parent has determined to be an “officer” of Parent within the meaning of Rule 16a-1(f) of
the Exchange Act.
“Parent Stock Option”
means a stock option to purchase shares of Parent Common Stock.
“Parent Stock Plan”
means the Charter Communications, Inc. 2019 Stock Incentive Plan, the Charter Communications, Inc. Amended and Restated 2009
Stock Incentive Plan, the Time Warner Cable Inc. 2011 Stock Incentive Plan and the Time Warner Cable Inc. 2006 Stock Incentive Plan.
“Parent Stockholder”
means a holder of Parent Capital Stock.
“Parent Tax Opinion”
means (a) the tax opinion, dated as of the Closing Date, referred to in Section 6.2(e) and (b) if required
in connection with the filing of the Registration Statement, the opinion as to the material U.S. federal income tax consequences of the
Merger, to be delivered by Parent Tax Counsel for purposes of the Registration Statement, including the Joint Proxy Statement.
“Parent Tax Opinion
Representation Letter” means the representation letter substantially in the form of Exhibit C, with such changes,
updates or refinements, agreed to (with such agreement not to be unreasonably withheld, conditioned or delayed) by Parent, the Company,
Parent Tax Counsel and Company Tax Counsel, as may be reasonably necessary to reflect any changes in, or clarifications of, facts prior
to the Closing, to be executed by Parent, and dated and effective as of the Closing Date (and if applicable, as of the date of any Tax
Opinions to be delivered in connection with the Registration Statement), delivered to each of the tax counsel providing the Tax Opinions
as a condition to, and in connection with, the issuance of the Tax Opinions.
“Parent Tax Opinion
Representations” means the representations in the Parent Tax Opinion Representation Letter.
“Party”
means any of the Company, Parent, Merger Sub and Merger LLC.
“Patents”
means patents and industrial designs, patent and industrial design applications and patent disclosures, together with all reissues, continuations,
continuations-in-part, revisions, divisionals, extensions and reexaminations in connection therewith.
“Permitted Encumbrances”
means: (a) statutory Encumbrances for current Taxes or other payments that are not yet due and payable, (b) Encumbrances for
Taxes being contested in good faith and by appropriate proceedings and for which adequate reserves have been established in accordance
with GAAP in the Company SEC Documents or the Parent SEC Documents, as applicable, filed prior to the date of this Agreement, (c) Encumbrances
in favor of vendors, mechanics, carriers, workmen, warehousemen, repairmen, materialmen or similar Encumbrances arising under applicable
Law in the ordinary course of business, which would not materially impair the use, operation or value of the asset subject thereto, (d) valid
non-exclusive licenses to Intellectual Property in the ordinary course of business consistent with past practice, (e) deposits or
pledges made in connection with, or to secure payment of, workers’ compensation, unemployment insurance or similar programs mandated
by applicable Law, (f) with respect to any licensed or leased asset or property, the rights of any lessor, lessee, licensor or licensee
under the applicable lease or license made in the ordinary course of business consistent with past practice or in effect as of the date
of this Agreement, (g) liens securing Indebtedness of the Company and/or its Subsidiaries described on Section 1.1(c) of
the Company Disclosure Letter (and identified thereon as being secured by such liens) so long as the terms of such Indebtedness, as in
effect on the date of this Agreement, require the incurrence of such liens to secure such Indebtedness, (h) liens or other encumbrances
described on Section 1.1(c) of the Parent Disclosure Letter, (i) defects, imperfections or irregularities in title,
easements, covenants, restrictions and rights of way and other similar Encumbrances, or other liens of record, zoning, building and other
similar codes and restrictions, with respect to real property, in each case, that do not adversely affect in any material respect the
current use of the applicable property owned, leased, used or held for use, (j) (i) with respect to any securities, any transfer
restrictions of general applicability as may be provided under the Securities Act or other applicable securities Law or (ii) restrictions
under organizational documents of the issuer of such securities, (k) Encumbrances set forth in any Transaction Document, (l) liens
on Parent Capital Stock owned by the Company securing the Company Margin Facility that are expected to be released at or prior to the
Effective Time (such release to be evidenced by draft customary payoff and lien release documentation delivered prior to the Effective
Time), (m) any Encumbrances under the Stockholders Agreement and (n) liens securing Indebtedness of the Company and/or its
Subsidiaries permitted to be incurred under Section 5.1(g) that are expected to be released on or prior to the Effective
Time (such release to be evidenced by draft customary payoff and lien release documentation delivered prior to the Effective Time).
“Permitted
Margin Loan Refinancings” means any Indebtedness in the form of loans incurred by the Company and/or its Subsidiaries (excluding
the GCI Business) in consultation with Parent within one year of the stated maturity of the Company Margin Facility in exchange for,
or the net proceeds of which are used or will be used for, the extension, redemption, renewal, replacement, repurchase, settlement, refunding
or refinancing in whole or in part of the Company Margin Facility (including any available undrawn commitments, any delayed draw facility
under the Margin Loan Agreement and any unused incremental loan borrowing capacity permitted by Section 2.15 of the Margin Loan
Agreement) (the “Refinanced Indebtedness”); provided that:
(a) the
principal amount (including any available undrawn commitments, any delayed draw facility under the Margin Loan Agreement and any unused
incremental loan borrowing capacity permitted by Section 2.15 of the Margin Loan Agreement) of the Permitted Margin Loan Refinancing
does not exceed the principal amount (including any available undrawn commitments, any delayed draw facility under the Margin Loan Agreement
and any unused incremental loan borrowing capacity permitted by Section 2.15 of the Margin Loan Agreement) of the Refinanced Indebtedness;
and
(b) such
Permitted Margin Loan Refinancing (i) is on customary (or better than customary) market terms and conditions; (ii) does not
contain any right on the part of the holder(s) thereof to convert or exchange such Indebtedness for equity; (iii) is prepayable
and terminable, at the Company’s (or its applicable Subsidiary’s) option, without premium, penalty or make-whole protection
of any kind (excluding, for the avoidance of doubt, customary SOFR breakage) upon advance notice no longer than the relevant notice periods
applicable to the Refinanced Indebtedness; (iv) (A) shall have no borrowers, issuers, guarantors, grantors, pledgors or other
obligors or providers of credit support, other than Persons acting in such capacity(ies) under the applicable Refinanced Indebtedness
and (B) shall not be secured by any collateral other than collateral securing such Refinanced Indebtedness; and (v) if in the
form of a margin loan facility, has provisions corresponding to Section 2.09 of the Margin Loan Agreement no less favorable to the
Company in any material respect than Section 2.09 (including the definitions referenced therein) of the Margin Loan Agreement (as
in effect on the date hereof).
Notwithstanding anything herein to the contrary,
any Indebtedness constituting a Permitted Margin Loan Refinancing that replaces revolving loans or facilities under the Company Margin
Facility shall be deemed a Company Margin Facility for purposes of this Agreement (i.e., entitled to the same treatment).
“Person”
means (a) any individual, corporation, limited liability company, limited or general partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, Governmental Authority or (b) any Group comprised of two (2) or more of the foregoing.
“Personal Data”
means any and all information that, (a) alone or in combination with other information, allows the identification of a living individual
(including IP address, digital signature, name, address, telephone number, email address or usernames in combination with a password
or security code that would allow access to an online account, date of birth, social security number, bank account number, government-issues
identification number, credit card number, credit history and criminal history) and is “Personal Data” as that term is defined
in Article 4 of the GDPR or (b) is “Personally Identifiable Information” under any Data Security Requirements in
any jurisdiction applicable to the processing of that Personal Data.
“Portfolio Securities”
means the securities of the entities set forth on Section 1.1(d) of the Company Disclosure Letter and Section 1.1(d) of
the Parent Disclosure Letter, as applicable.
“Potter Anderson”
means Potter Anderson & Corroon LLP.
“Privileged Information”
shall mean any and all Protected Information regardless of whether shared with, by, or among any Represented Person or their respective
Affiliates (or any of their respective Representatives), that was created prior to the Closing and would ordinarily be protected by the
attorney-client privilege or similar protections (including attorney work-product protections), as to which the Company, prior to the
Closing, had any rights whatsoever, either by itself or in conjunction with another Person.
“Protected Information”
shall mean any and all (a) documents, information, or other materials (including analyses, memoranda, spreadsheets and drafts of
any of the foregoing) whether written (in physical form or electronic media) or oral (including any written notes derived therefrom)
created prior to the Closing by or for the benefit of any Represented Persons and/or any of their respective Affiliates or Representatives,
and (b) communications prior to the Closing, whether written (in physical form or electronic media) or oral (including any written
notes derived therefrom) that occur between or among any of the following: any Represented Persons, any of their respective Affiliates
or any of their respective Representatives (including, for the avoidance of doubt, strictly internal communications), in the case of
each of clause (a) or (b), to the extent actually (or reasonably deemed to be) in the possession or control of the
Company on or prior to the Closing and relating to:
(i) the
businesses or affairs of the Company and its Affiliates to the extent such information described in clause (a) or (b) of
the introductory paragraph to this definition also primarily relates to (1) any of the Persons set forth in clauses (iv),
(v) or (vi) of the definition of Represented Persons (other than to the extent such Persons are acting in their
capacities as employees, officers, directors or stockholders of the Company) or the respective employees, officers, directors or stockholders
of the Persons set forth in clause (vi) of the definition of Represented Persons to the extent acting in their capacities
as such or (2) Parent or any of its Affiliates;
(ii) the
transactions contemplated by (together with any actions taken in anticipation of, or in consideration of any alternatives to, the transactions
contemplated by) this Agreement or the GCI Divestiture; or
(iii) any
analyses or presentations prepared or conducted by any financial advisor to the Company with respect to, in connection with or in anticipation
of the transactions described in immediately preceding clause (ii) (including the relevant portions of any related materials
shared with any transaction committee of the Company Board or the Company Board);
provided,
however, that, notwithstanding the foregoing and for the avoidance of doubt, the following shall not be deemed to be Protected
Information: (A) financial statements, schedules and other financial information to the extent relating to the Company and/or its
Subsidiaries, including auditors’ work papers and correspondence with, to or from auditors, (B) any of the information described
in clause (a) or (b) to the introductory paragraph of this definition to the extent relating to or arising out
of the Company’s SEC or Nasdaq compliance, reporting or similar obligations, including its financial reporting and accounting requirements,
as a public company (other than to the extent relating to the matters described in clause (ii) of this definition), (C) documentation
executed or delivered by or to the Company in connection with the issuance of the Exchangeable Debentures, including the Exchangeable
Debentures Indentures, together with any analyses regarding the structure or terms, or interpreting the provisions, thereof, and (D) corporate
record books of the Company and/or any of its Subsidiaries, including minutes from meetings of or actions taken by the Company Board
(other than meetings of or actions taken by any transaction committee of the Company Board or the Company Board, in each case to the
extent such meetings or actions relate to any of the matters described in clause (i), (ii) or (iii) above)
or any Board of Directors or similar governing body of any of the Company’s Subsidiaries, and minutes from meetings of or formal
actions taken by the stockholders of the Company or any of the Company’s Subsidiaries.
“Qurate”
means Qurate Retail, Inc., a Delaware corporation (f/k/a Liberty Interactive Corporation).
“Representatives”
means, with respect to any Person, its financial advisors, legal counsel, financing sources, accountants, insurers or other advisors,
agents or representatives, including its officers and directors.
“Sarbanes Act”
means the Sarbanes-Oxley Act of 2002.
“SEC”
means the Securities and Exchange Commission.
“Securities Act”
means the Securities Act of 1933, and the rules and regulations promulgated thereunder.
“Sherman”
means Sherman & Howard L.L.C.
“Skadden”
means Skadden, Arps, Slate, Meagher & Flom LLP.
“State Commissions”
means any state Governmental Authority that has issued Communications Licenses to the Company or its Subsidiaries, or any successor to
any such state Governmental Authority.
“Stock Issuance”
means the issuance of (a) shares of Parent Class A Common Stock to holders of shares of Company Common Stock and (b) shares
of Parent Preferred Stock to holders of Company Preferred Stock, in each case, as part of the Merger Consideration.
“Subsidiary”
means, with respect to any Person, any corporation, general or limited partnership, limited liability company, joint venture or other
entity (a) that is consolidated with such Person for purposes of financial reporting under GAAP or (b) in which such Person
(i) owns, directly or indirectly, more than fifty percent (50%) of the voting power represented by the outstanding voting securities
or more than fifty percent (50%) of the equity securities, profits interest or capital interest, (ii) is entitled to elect at least
one-half of the board of directors or similar governing body or (iii) in the case of a limited partnership or limited liability
company, is a general partner or managing member and has the power to direct the policies, management and affairs of such entity, respectively;
provided, that for purposes of this Agreement, (a) neither Parent, the Portfolio Company nor any of their respective Subsidiaries
will be deemed to be a Subsidiary of the Company or a Subsidiary of any of the Company’s Subsidiaries and (b) neither the
Portfolio Company nor any of its Subsidiaries will be deemed to be a Subsidiary of Parent or a Subsidiary of any of Parent’s Subsidiaries.
“Superior Company
Proposal” means a bona fide written Alternative Company Transaction Proposal which the Company Board determines in good faith
(after consultation with its outside legal counsel and financial advisors), taking into account all legal, financial, tax, regulatory,
timing and other aspects of the proposal and the identity of the Person making the proposal, (a) is reasonably likely to be consummated
on the terms proposed, (b) is more favorable from a financial point of view to the Company, the Company Stockholders and the Company
Disinterested Stockholders than the terms of the Merger and the other transactions contemplated hereby and (c) is otherwise on terms
that the Company Board has determined to be superior to the transactions contemplated hereby; provided, however, that,
for purposes of this definition of “Superior Company Proposal,” the term “Alternative Company Transaction Proposal”
shall have the meaning assigned to such term in this Agreement, except that each reference to twenty-five percent (25%) in the definition
of “Alternative Company Transaction” when used in the definition of “Alternative Company Transaction Proposal”
shall be replaced with a reference to eighty percent (80%).
“Superior Parent
Proposal” means a bona fide written Alternative Parent Transaction Proposal which the Parent Special Committee or the Parent
Board (acting at the recommendation of the Parent Special Committee) determines in good faith (after consultation with its outside legal
counsel and financial advisors), taking into account all legal, financial, tax, regulatory, timing and other aspects of the proposal
and the identity of the Person making the proposal, (a) is reasonably likely to be consummated on the terms proposed, (b) is
more favorable from a financial point of view to Parent, the Parent Stockholders and the Parent Disinterested Stockholders than the terms
of the Merger and the other transactions contemplated hereby and (c) is otherwise on terms that the Parent Special Committee or
the Parent Board (acting at the recommendation of the Parent Special Committee) has determined to be superior to the transactions contemplated
hereby; provided, however, that, for purposes of this definition of “Superior Parent Proposal,” the term “Alternative
Parent Transaction Proposal” shall have the meaning assigned to such term in this Agreement, except that each reference to twenty-five
percent (25%) in the definition of “Alternative Parent Transaction” when used in the definition of “Alternative Parent
Transaction Proposal” shall be replaced with a reference to eighty percent (80%).
“Tax”
or “Taxes” means (a) any and all federal, state, local and foreign taxes and other assessments, governmental
charges, duties, fees, levies and Liabilities in the nature of a tax, including taxes based upon or measured by gross receipts, income,
profits, sales, use, occupation, value added, ad valorem, transfer, franchise, withholding, payroll, recapture, escheat, employment,
excise and property taxes and (b) all interest, penalties and additions imposed with respect to such amounts in clause (a).
“Tax Opinion Representations”
means the representations in the Company Tax Opinion Representation Letter and the Parent Tax Opinion Representation Letter.
“Tax Opinions”
means the Parent Tax Opinion and the Company Tax Opinion.
“Tax Return”
means a report, return, certificate, form or similar statement or document, including any amendment thereof or any attachment thereto,
supplied to or filed with or required to be supplied to or filed with a Governmental Authority in connection with the determination,
assessment or collection of any Tax, including an information return, claim for refund, amended return or declaration of estimated Tax.
“Tax Sharing Agreement
Joinder” means the Assumption and Joinder Agreement to Tax Sharing Agreement, dated as of the date hereof, by and among Parent,
the Company and Qurate.
“Third Party”
means any Person, including as defined in Section 13(d) of the Exchange Act, other than the Company, Parent or any of their
respective Affiliates.
“Trademarks”
means trademarks, service marks, designs, trade dress, logos, slogans, trade names, business names, corporate names, Internet domain
names, social media handle registrations and all other indicia of origin, all applications, registrations and renewals in connection
therewith and all goodwill associated with any of the foregoing.
“Transaction Documents”
means this Agreement, the Voting Agreement, the Liberty Media Letter Agreement, the Liberty Media Side Letter, the Exchange Side Letter,
the Joinder Agreements, the GCI Divestiture Documents, and the Stockholders and Letter Agreement Amendment.
“Treasury Regulations”
means the regulations promulgated under the Code in effect on the date of this Agreement and the corresponding sections of any regulations
subsequently issued that amend or supersede such regulations.
“Wachtell Lipton”
means Wachtell, Lipton, Rosen & Katz.
“WARN Act”
means the Worker Adjustment Retraining Notification Act of 1988 or any similar state, local or foreign Law.
“Wholly Owned Subsidiary”
means, as to any Person, a Subsidiary of such Person, 100% of the Equity and voting interest in which is beneficially owned or owned
of record, directly and/or indirectly, by such Person.
“Willful Breach”
means a material breach of a Party’s covenants and agreements set forth in this Agreement that is the consequence of an act or
omission by a Party with the Knowledge that the taking of such act or failure to take such action would be a material breach of such
Party’s covenants or agreements in this Agreement.
Section 1.2 Additional
Defined Terms.
| Term |
Section |
| |
|
| A/N |
Recitals |
| Affiliate Contract |
3.23(a) |
| Agreement |
Preamble |
| Alternative Tax-Free Transactions |
5.11(g) |
| Amended Company Notice Period |
5.4(b)(ii) |
| Amended Parent Notice Period |
5.6(b)(ii) |
| Book Entry Shares |
2.6(a)(ii) |
| Certificate |
2.6(a)(ii) |
| Certificate of Merger |
2.3(a) |
| Charter Holdings Equity Securities |
5.2(c) |
| Closing 2.4 |
|
| Closing Date |
2.4 |
| Code |
Recitals |
| Combination Recitals |
|
| Common Consideration |
2.6(a)(ii)(3) |
| Company Preamble |
|
| Company Board |
Recitals |
| Company Board Recommendation |
3.4(b) |
| Company Disinterested Stockholder Approval |
3.4(c) |
| Company Disinterested Stockholders |
3.4(c) |
| Company ERISA Affiliate |
See definition of Company
Plan, 1.1 |
| Company Material Contract |
3.17(a) |
| Company Notice Period |
5.4(b)(ii) |
| Company Offer |
5.6(b)(ii) |
| Company Other Interests |
3.3(c) |
| Company Owned Parent Shares |
Recitals |
| Company Recourse Related Party |
7.3(f) |
| Company SEC Documents |
3.6(a) |
| Company Stockholder Approval |
3.4(c) |
| Company Stockholders Meeting |
5.7(a) |
| Company Tax Counsel |
6.3(d) |
| Company Vote Date |
7.1(b)(iii) |
| Confidentiality Agreement |
5.8(d) |
| D&O Insurance |
5.14(b) |
| D&O Tail |
5.14(b) |
| Delaware Courts |
8.11 |
| DGCL |
Recitals |
| Dissenting Shares |
2.6(e) |
| DLLCA |
Recitals |
| Drop Dead Date |
7.1(b)(i) |
| Effective Time |
2.3(a) |
| Exchange Agent |
2.7(a) |
| Exchange Fund |
2.7(a) |
| Exchangeable Shortfall Amount |
5.22(a)(i)(1) |
| Extended Date |
5.14(a) |
| Fractional Share |
2.6(f) |
| GCI Business |
5.24(a) |
| GCI Divestiture |
5.24(a) |
| GCI Divestiture Shortfall Amount |
5.22(e) |
| GCI Event |
5.24(f) |
| GCI Spinco |
5.24(a)(iii) |
| GDPR |
See definition of Data
Security Requirements 1.1 |
| Grizzly Merger Sub |
3.14(h) |
| Indemnified Parties |
5.14(a) |
| Intended Tax Treatment |
5.11(a) |
| Joint Proxy Statement |
5.7(a) |
| Letter Agreement |
Recitals |
| Maffei Voting Agreement |
Recitals |
| Malone Voting Agreement |
Recitals |
| Margin Loan Agreement |
See definition of Company
Margin Facility, 1.1 |
| Merger |
Recitals |
| Merger Consideration |
2.6(a)(ii)(4) |
| Merger Consideration Value |
2.8(a)(i) |
| Merger LLC |
Preamble |
| Merger Sub |
Preamble |
| Merger Sub Board |
Recitals |
| Merger Sub Stockholder Consent |
4.3(d) |
| Necessary Information |
5.27(c) |
| Parent |
Preamble |
| Parent Board |
Recitals |
| Parent Board Recommendation |
4.3(c) |
| Parent Closing Price |
2.8(a)(ii) |
| Parent Disinterested Stockholder Approval |
4.3(f) |
| Parent Disinterested Stockholders |
4.3(f) |
| Parent Financial Statements |
4.5(b) |
| Parent Notice Period |
5.6(b)(ii) |
| Parent Offer |
5.4(b)(ii) |
| Parent Recourse Related Party |
7.3(g) |
| Parent SEC Documents |
4.5(a) |
| Parent Special Committee |
Recitals |
| Parent Special Committee Recommendation |
4.3(b) |
| Parent Stockholder Approval |
4.3(f) |
| Parent Stockholders Meeting |
5.7(a) |
| Parent Tax Counsel |
6.2(e) |
| Parent Vote Date |
7.1(b)(iv) |
| Permitted Parent Access Circumstance |
5.27(c) |
| Portfolio Company |
See definition of Affiliate,
1.1 |
| Post-Closing Representation |
5.27(a) |
| Preferred Consideration |
2.6(a)(ii)(4) |
| Proposed Change in Tax Law |
5.11(f) |
| Qualified Plan |
3.16(d) |
| Qurate TSA |
3.14(h) |
| Refinanced Indebtedness |
See definition of Permitted
Margin Loan Refinancings, 1.1 |
| Registration Statement |
5.7(a) |
| Represented Persons |
5.27(a) |
| Separation Principles |
5.24(a) |
| Series A Consideration |
2.6(a)(ii)(1) |
| Series B Consideration |
2.6(a)(ii)(2) |
| Series C Consideration |
2.6(a)(ii)(3) |
| Stockholders Agreement |
Recitals |
| Stockholders and Letter Agreement Amendment |
Recitals |
| Surviving Company |
2.1(b) |
| Surviving Corporation |
2.1(a) |
| Termination Fee |
7.3(a) |
| Upstream Effective Time |
2.3(b) |
| Upstream Merger |
Recitals |
| Upstream Merger Certificate |
2.3(b) |
| Use |
3.12(c) |
| Voting Agreements |
Recitals |
| Voting Company Debt |
3.2(c) |
| Voting Parent Debt |
4.2(c) |
Section 1.3 Terms
Generally.
(a) The
definitions in Section 1.1 and Section 1.2 will apply equally to both the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun will include the corresponding masculine, feminine and neuter forms. The words
“include”, “includes” and “including” will be deemed to be followed by the phrase “without
limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall.”
The words “herein”, “hereof” and “hereunder” and words of similar import refer to this Agreement
(including the Exhibits and Schedules) in their entirety and not to any part hereof unless the context otherwise requires. All references
herein 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 statute or regulation are to such statute or regulation
as amended and supplemented from time to time (and, in the case of a statute or regulation, to any successor provisions), unless the
context otherwise requires. Any reference in this Agreement to a “day” or “number of days” (without the explicit
qualification of “business”) will be interpreted as a reference to a calendar day or number of calendar days, as the case
may be. 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. As used herein, and unless the
context otherwise requires, the phrase “made available” and words of similar import mean that the relevant documents, instruments
or materials were (A) (x) with respect to information to be made available to Parent, posted and made available to Parent on
the Company due diligence data site or otherwise delivered to Wachtell Lipton by the Company or its Representatives in connection with
the transactions contemplated by the Transaction Documents at least one (1) Business Day prior to the date of this Agreement, and
(y) with respect to information to be made available to the Company, posted or made available to the Company on Parent’s due
diligence data site or delivered to O’Melveny by Parent or its Representatives in connection with the transactions contemplated
by the Transaction Documents at least one (1) Business Day prior to the date of this Agreement or (B) filed or furnished to
the SEC (and publicly available) at least two (2) Business Days prior to the date of this Agreement.
(b) References
to “the Company” in the phrase “the Company and its Subsidiaries, taken as a whole”, including for purposes of
Article III, will be deemed to include the Company’s equity interest in Parent through the Company’s ownership
of Parent Class A Common Stock and the related value to the Company thereof and the Company’s equity interest in the Portfolio
Company through the Company’s ownership of the Portfolio Securities and the related value to the Company thereof; provided, that
in no event shall Parent, the Portfolio Company or any of their respective Subsidiaries constitute a Subsidiary of the Company or any
of its Subsidiaries.
(c) For
all purposes of this Agreement, each Party hereto acknowledges and agrees that none of the representations and warranties set forth in
Article III (other than Section 3.14 (Tax) and Section 3.15 (Tax Matters)) or in any certificate
delivered by the Company pursuant hereto (including with respect to the condition set forth in Section 6.2(a)) are being
made with respect to Parent, its Subsidiaries, the Portfolio Company, its Subsidiaries or the respective businesses of the Portfolio
Company or Parent (including their respective Subsidiaries) or, if the GCI Divestiture is consummated, GCI Spinco, GCI, their respective
Subsidiaries or the GCI Business, and that Parent, the Portfolio Company, their respective Subsidiaries, and the respective businesses
of the Portfolio Company and Parent and, if the GCI Divestiture is consummated, GCI Spinco, GCI, their respective Subsidiaries and the
GCI Business shall be excluded from the representations and warranties set forth in Article III (other than Section 3.14
(Tax) and Section 3.15 (Tax Matters)) and in any certificate delivered by the Company pursuant hereto for all purposes
of this Agreement (including for purposes of Section 6.2(a)), except that (i) this sentence shall not limit (A) any representations
or warranties herein by the Company regarding the Company’s or any of its Subsidiaries’ ownership of the Portfolio Securities
or the Company Owned Parent Shares or (B) any statement, representation or warranty made in the Company Tax Opinion Representation
Letter and (ii) notwithstanding anything to the contrary in this Agreement, each and every representation and warranty set forth
in Article III (other than Section 3.15 (Tax Matters)) with respect to, for or relating to GCI Spinco, GCI, any
of their respective Subsidiaries or the GCI Business shall be deemed to be qualified by and subject to an exception for “Company
Material Adverse Effect”.
(d) For
all purposes of this Agreement, each Party hereto acknowledges and agrees that none of the representations and warranties set forth in
Article IV (other than Section 4.11 (Tax Matters)) or in any certificate delivered by Parent pursuant hereto
(including as such representations and warranties are included in the condition set forth in Section 6.3(a)) are being made
with respect to the Portfolio Company and its Subsidiaries or the business of the Portfolio Company and that the Portfolio Company, its
Subsidiaries and the business of the Portfolio Company shall be excluded from the representations and warranties set forth in Article IV
(other than Section 4.11 (Tax Matters)) and in any certificate delivered by Parent pursuant hereto for all purposes of
this Agreement, except that this sentence shall not limit (i) any representations or warranties herein by Parent regarding Parent’s
or any of its Subsidiaries’ ownership of the Portfolio Securities or (ii) any statement, representation or warranty made in
the Parent Tax Opinion Representation Letter.
(e) For
the avoidance of doubt, the phrase “Parent and its Subsidiaries” will be deemed to include Merger Sub and Merger LLC prior
to the Effective Time, the Surviving Corporation following the Effective Time and the Surviving Company following the Upstream Effective
Time.
Article II
THE
COMBINATION
Section 2.1 The
Combination.
(a) Upon
the terms and subject to the conditions set forth in this Agreement and in accordance with the DGCL, at the Effective Time, Merger Sub
shall be merged with and into the Company and the separate corporate existence of Merger Sub shall thereupon cease. The Company shall
continue as the surviving corporation in the Merger (hereinafter referred to as the “Surviving Corporation”), and
the separate corporate existence of the Company with all its properties, rights, privileges, immunities, powers and franchises shall
continue unaffected by the Merger. At the Effective Time, the effect of the Merger shall be as provided in this Agreement, the Certificate
of Merger and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective
Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving
Corporation, and all debts, Liabilities and duties of the Company and Merger Sub shall become the debts, Liabilities and duties of the
Surviving Corporation.
(b) Upon
the terms and subject to the conditions set forth in this Agreement (which constitutes a “plan of merger” for purposes of
Section 18-209(i) of the DLLCA) and in accordance with the DGCL, the DLLCA and the authorization of the Upstream Merger by
Merger LLC in accordance with Merger LLC’s governing documents, Section 267 of the DGCL, Section 18-209(i) of the
DLLCA and the Upstream Merger Certificate, following the Effective Time and at the Upstream Effective Time, the Surviving Corporation
shall be merged with and into Merger LLC and the separate corporate existence of the Surviving Corporation shall thereupon cease. Merger
LLC shall continue as the surviving company in the Upstream Merger (sometimes hereinafter referred to as the “Surviving Company”),
and the separate existence of Merger LLC with all its properties, rights, privileges, immunities, powers and franchises shall continue
unaffected by the Upstream Merger. At the Upstream Effective Time, the effect of the Upstream Merger shall be as provided in this Agreement,
the Upstream Merger Certificate and the applicable provisions of the DGCL and the DLLCA. Without limiting the generality of the foregoing,
and subject thereto, at the Upstream Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the
Surviving Corporation and Merger LLC shall vest in the Surviving Company, and all debts, Liabilities and duties of the Surviving Corporation
and Merger LLC shall become the debts, Liabilities and duties of the Surviving Company.
Section 2.2 Organizational
Documents.
(a) At
the Effective Time, the Company Charter as in effect immediately prior to the Effective Time, shall be the certificate of incorporation
of the Surviving Corporation and shall not be amended or restated in connection with the Merger.
(b) The
Parties shall take all necessary action so that, at the Effective Time, the Company Bylaws as in effect immediately prior to the Effective
Time shall be amended and restated in their entirety to read as the bylaws of Merger Sub read immediately prior to the Effective Time
(with any necessary changes, including the name of the Surviving Corporation) and as so amended and restated shall be the bylaws of the
Surviving Corporation until thereafter further amended (subject to Section 5.14(a)) in accordance with their terms, the terms
of the certificate of incorporation of the Surviving Corporation and the DGCL.
(c) At
the Upstream Effective Time, the certificate of formation of Merger LLC, as in effect immediately prior to the Upstream Effective Time,
shall be the certificate of formation of the Surviving Company, until thereafter amended in accordance with applicable Law and the applicable
provisions of the Surviving Company’s certificate of formation and limited liability company agreement.
(d) At
the Upstream Effective Time, the limited liability company agreement of Merger LLC, as in effect immediately prior to the Upstream Effective
Time, shall be the limited liability company agreement of the Surviving Company, until thereafter amended (subject to Section 5.14(a))
in accordance with applicable Law and the applicable provisions of such limited liability company agreement.
Section 2.3 Effective
Time; Upstream Effective Time.
(a) Subject
to the provisions of this Agreement, as soon as practicable on the Closing Date, (i) first, Parent shall file (or cause to be filed)
the Certificate of Designations with the Secretary of State of the State of Delaware, which shall become effective upon the filing of
the Certificate of Designations with the Secretary of State of the State of Delaware or such later date and time as set forth therein
and mutually agreed by Parent and the Company but in all events prior to the Effective Time and (ii) second, the Company shall file
(or cause to be filed) a certificate of merger containing the provisions required by, and executed in accordance with, Section 251(c) of
the DGCL (the “Certificate of Merger”), together with any required related certificates, filings or recordings, with
the Secretary of State of the State of Delaware, in such form as required by, and executed in accordance with, the relevant provisions
of the DGCL. The Merger shall become effective upon the filing of the Certificate of Merger with the Secretary of State of the State
of Delaware or at such later date and time as the Company and Parent may agree upon and as is set forth in such Certificate of Merger
(such time, the “Effective Time”); provided, however, that in no event shall the Effective Time be prior
to the time the Certificate of Designations has become effective.
(b) Immediately
following the effectiveness of the Certificate of Merger, Merger LLC shall file (or cause to be filed) a certificate of ownership and
merger with respect to the Upstream Merger containing the provisions required by, and executed in accordance with, Section 267 of
the DGCL and Section 18-209(i) of the DLLCA (and as authorized by Merger LLC in accordance with Section 267 of the DGCL,
Section 18-209 of the DLLCA and Merger LLC’s governing documents) (the “Upstream Merger Certificate”),
together with any required related certificates, filings or recordings, with the Secretary of State of the State of Delaware, in such
form as required by, and executed in accordance with, the relevant provisions of the DGCL and the DLLCA. The Upstream Merger shall become
effective upon the filing of the Upstream Merger Certificate with the Secretary of State of the State of Delaware or at such later date
and time as the Company and Parent may agree upon and as is set forth in such Upstream Merger Certificate (such time, the “Upstream
Effective Time”). The Effective Time shall, in all events, precede the Upstream Effective Time.
Section 2.4 Closing.
Unless this Agreement shall have been terminated in accordance with Section 7.1, the closing of the Combination (the “Closing”)
shall occur on the later of (a) June 30, 2027 and (b) the third (3rd) Business Day after all of the conditions set forth
in Article VI shall have been satisfied or waived (to the extent waivable) by the Party entitled to the benefit of the same
(other than conditions which by their terms are required to be satisfied or waived at the Closing, but subject to the satisfaction or
waiver of such conditions at the Closing), or at such other date and time as agreed to by the Parties in writing or pursuant to Section 5.11(f) (the
date on which the Closing occurs, the “Closing Date”). The Closing shall take place via the electronic exchange of
documents and signature pages on the Closing Date or at such other place and time as agreed to by the Parties hereto.
Section 2.5 Directors
and Officers.
(a) The
Parties shall take all necessary action such that from and after the Effective Time the directors of Merger Sub immediately prior to
the Effective Time shall be the directors of the Surviving Corporation, and the officers of Merger Sub immediately prior to the Effective
Time shall be the officers of the Surviving Corporation, in each case, until their respective successors are duly elected and qualified,
or their earlier death, resignation, or removal.
(b) The
Parties shall take all necessary action such that, from and after the Upstream Effective Time, the officers of Merger LLC immediately
prior to the Upstream Effective Time shall be the officers of the Surviving Company until their respective successors are duly elected
and qualified, or their earlier death, resignation, or removal.
Section 2.6 Effect
on Capital Stock.
(a) Effect
on Company Capital Stock and Merger Sub Common Stock. At the Effective Time, by virtue of the Merger and without any action on the
part of any Company Stockholders, any of the Parties, or any other Person:
(i) Cancelled
Shares. Each share of Company Common Stock or Company Preferred Stock (A) held by the Company as treasury stock or by any of
its Wholly Owned Subsidiaries immediately prior to the Effective Time shall automatically be cancelled and shall cease to exist, and
no securities of Parent or other consideration shall be delivered in exchange therefor and (B) owned by Parent or any of its Wholly
Owned Subsidiaries immediately prior to the Effective Time shall automatically be cancelled and shall cease to exist, and no securities
of Parent or other consideration shall be delivered in exchange therefor.
(ii) Conversion
of Company Capital Stock. Except as otherwise provided in Section 2.6(a)(i), and subject to Section 2.6(b) and
Section 2.6(e):
(1) Each
share of Company Series A Common Stock issued and outstanding immediately prior to the Effective Time shall automatically, and without
any election on the part of the Company Stockholders, be converted into and become the right to receive a number of validly issued, fully
paid and nonassessable shares of Parent Class A Common Stock equal to the Common Exchange Ratio, with any Fractional Share to be
treated in accordance with Section 2.6(f) (such shares of Parent Class A Common Stock, the “Series A
Consideration”);
(2) Each
share of Company Series B Common Stock issued and outstanding immediately prior to the Effective Time (other than Dissenting Shares)
shall automatically, and without any election on the part of the Company Stockholders, be converted into and become the right to receive
a number of validly issued, fully paid and nonassessable shares of Parent Class A Common Stock equal to the Common Exchange Ratio,
with any Fractional Share treated in accordance with Section 2.6(f) (such shares of Parent Class A Common Stock,
the “Series B Consideration”);
(3) Each
share of Company Series C Common Stock issued and outstanding immediately prior to the Effective Time shall automatically, and without
any election on the part of the Company Stockholders, be converted into and become the right to receive a number of validly issued, fully
paid and nonassessable shares of Parent Class A Common Stock equal to the Common Exchange Ratio, with any Fractional Share treated
in accordance with Section 2.6(f) (such shares of Parent Class A Common Stock, the “Series C Consideration”
and, together with the Series A Consideration and the Series B Consideration, the “Common Consideration”);
and
(4) Each
share of Company Preferred Stock issued and outstanding immediately prior to the Effective Time shall automatically, and without any
election on the part of the Company Stockholders, be converted into and become the right to receive one validly issued, fully paid and
nonassessable share of Parent Preferred Stock (such shares of Parent Preferred Stock, the “Preferred Consideration”,
and together with the Common Consideration, the “Merger Consideration”).
From and after the Effective Time, all shares
of Company Capital Stock that were outstanding immediately prior to the Effective Time shall cease to be outstanding and shall cease
to exist, and, except as otherwise provided in Section 2.6(a)(i) and subject to Section 2.6(b), Section 2.6(c) and
Section 2.6(e), each holder of (A) a certificate (a “Certificate”) that immediately prior to the
Effective Time represented such shares or (B) such shares immediately prior to the Effective Time in non-certificated book-entry
form (the “Book Entry Shares”) shall, in each case, thereafter cease to have any rights with respect to such shares
of Company Capital Stock, except the right to receive the Merger Consideration to be issued in consideration therefor, cash in lieu of
any Fractional Share pursuant to Section 2.6(f) and any dividends or other distributions to which holders of shares
become entitled in accordance with this Article II upon the surrender of such Certificate (subject to Section 2.7(h))
or exchange of Book Entry Shares in accordance with Section 2.7.
(iii) Effect
on Merger Sub Common Stock. Each share of capital stock of Merger Sub outstanding immediately prior to the Effective Time shall be
converted into and shall become one (1) share of Series A common stock of the Surviving Corporation.
(b) Changes
to Stock. If at any time during the period between the date of this Agreement and the Effective Time, any change in outstanding Parent
Capital Stock or Company Capital Stock shall occur by reason of any reclassification, recapitalization, stock split or combination, split-up,
reverse stock-split, exchange, readjustment or other similar transaction of or involving shares or any stock dividend thereon with a
record date, payment date or ex-dividend date during such period, or any similar extraordinary transaction or event (including any merger,
consolidation, share exchange, business combination or similar transaction as a result of which Parent Capital Stock or Company Capital
Stock will be converted or exchanged (other than any conversion by any holder thereof of Company Series B Common Stock into Company
Series A Common Stock pursuant to the terms of the Company Charter, other than any GCI Divestiture and other than the exchange of
any shares of Company Series B Common Stock for such shares of Company Series C Common Stock (or vice versa) pursuant to the
Exchange Agreement or the Exchange Side Letter), the Merger Consideration, the Common Exchange Ratio and any other similarly dependent
items, as the case may be, shall be appropriately and equitably adjusted to provide the Company Stockholders the same economic effect
as contemplated by this Agreement prior to such event (with any such adjustments that are made to Company Equity Awards to be determined
by the Company Board (or an authorized committee thereof) in its sole discretion). For the avoidance of doubt, neither the declaration
nor payment by the Company of quarterly cash dividends on the Company Preferred Stock in accordance with the terms of the Company Charter
prior to the Effective Time will require any adjustment under this Section 2.6(b).
(c) Post-Closing
Company Preferred Stock Dividends. Parent shall pay (or cause a Subsidiary of Parent to pay) all dividends declared by the Company
Board in accordance with the Company Charter on the Company Preferred Stock to the extent that the payment date for such dividends is
after the Closing and the record date therefor precedes the Closing. The declared dividends shall be paid by Parent on the payment date
to the holders of record of Company Preferred Stock as of the close of business on the record date therefor. Any dividends declared by
the Company Board on the Company Preferred Stock will be conditioned on the record date occurring prior to the Closing Date.
(d) Conversion
of Surviving Corporation Shares. At the Upstream Effective Time, by virtue of the Upstream Merger and without any action on the part
of any of the Parties or holders of any securities of the Surviving Corporation or Merger LLC, (i) each limited liability company
interest of Merger LLC issued and outstanding immediately prior to the Upstream Effective Time shall remain outstanding as a limited
liability company interest of the Surviving Company and (ii) each share of capital stock of the Surviving Corporation shall be cancelled
and shall cease to exist, and no securities or other consideration shall be delivered in exchange therefor.
(e) Dissenting
Shares. Notwithstanding anything in this Agreement to the contrary, shares of Company Series B Common Stock that are outstanding
immediately prior to the Effective Time and that are held by any Person who is entitled to demand and properly demands appraisal of such
shares in accordance with, and who complies in all respects with, Section 262 of the DGCL (“Dissenting Shares”)
shall not be converted at the Effective Time into or represent the right to receive the Series B Consideration pursuant to Section 2.6(a)(ii)(2),
but instead, and in lieu thereof, each holder of a Dissenting Share shall only be entitled to payment of the fair value of such Dissenting
Share in accordance with and to the extent provided in Section 262 of the DGCL, unless and until any such holder fails to perfect,
waives or effectively withdraws or otherwise loses their rights to appraisal and payment thereunder; provided, that if any such
holder shall fail to perfect or otherwise shall waive, effectively withdraw or lose the right to appraisal under Section 262 of
the DGCL with respect to any Dissenting Shares, or if a court of competent jurisdiction shall determine that such holder is not entitled
to the relief provided by Section 262 of the DGCL, then the right of such holder to be paid the fair value of such Dissenting Shares
shall cease and such Dissenting Shares shall thereupon be deemed to have been cancelled and converted as of the Effective Time into,
and to have become exchangeable solely for, the right to receive the Series B Consideration without any interest thereon, upon surrender
of such Dissenting Share pursuant to Section 2.7 hereof, and shall not thereafter be deemed to be a Dissenting Share.
(f) Fractional
Shares. Notwithstanding anything to the contrary contained herein, holders of record of Company Common Stock shall not be entitled
to receive a fraction of a share of Parent Class A Common Stock (each, a “Fractional Share”) as Common Consideration
pursuant to the Merger and any holder of record of Company Common Stock entitled to receive a fractional share of Parent Class A
Common Stock (after aggregating all shares of Parent Class A Common Stock into which such holder of record’s shares of Company
Common Stock have been converted pursuant to Section 2.6(a)(ii) hereof), but for this Section 2.6(f), shall
be entitled to receive a cash payment in lieu thereof (without interest) in accordance with this Section 2.6(f). Parent shall
cause the Exchange Agent to aggregate all Fractional Shares that are otherwise issuable pursuant to the terms hereof into whole shares
and cause such whole shares to be sold at prevailing market prices on behalf of those holders of record who would have otherwise been
entitled to receive a Fractional Share, and each such holder of record who would have otherwise been entitled to receive a Fractional
Share shall be entitled to receive cash, without interest, rounded down to the nearest cent, in lieu of such Fractional Share in an amount
equal to such holder’s pro rata share of the total cash proceeds (net of any fees to the Exchange Agent) from such sales. The Exchange
Agent will have sole discretion to determine when, how and through which broker-dealers such sales will be made without any influence
by any Party. Following such sales, the applicable holders of record will receive a cash payment in the form of a check or wire transfer
in an amount equal to their pro rata share of the total net proceeds, less any applicable withholding taxes. If such holders of record
physically hold one or more Certificates, the check for any cash that such holders of record may be entitled to receive instead of Fractional
Shares will be mailed to such holders separately. The Parties acknowledge that the payment of cash in lieu of Fractional Shares does
not represent separately bargained-for consideration and merely represents a mechanical rounding off for purposes of avoiding the expense
and inconvenience that would otherwise be caused by the issuance of Fractional Share.
Section 2.7 Exchange
of Certificates and Book Entry Shares.
(a) Exchange
Agent. Prior to the Effective Time, Parent shall select an institution reasonably acceptable to the Company to act as the exchange
agent (the “Exchange Agent”) in the Merger for the purpose of exchanging Certificates and Book Entry Shares for the
applicable Merger Consideration (including to pay to holders of such Certificates and Book Entry Shares cash in lieu of Fractional Shares,
if any, pursuant to Section 2.6(f)). Prior to the Effective Time, Parent shall enter into or shall have entered into an exchange
agent agreement with the Exchange Agent in a form reasonably acceptable to the Company, which agreement shall set forth the duties, responsibilities
and obligations of the Exchange Agent consistent with the terms of this Agreement and such agreement shall be reasonably acceptable to
the Company. Parent will make available to the Exchange Agent, at or prior to the Effective Time, a number of shares of Parent Class A
Common Stock and Parent Preferred Stock sufficient to pay the aggregate Merger Consideration pursuant to Section 2.6(a) (such
shares of Parent Class A Common Stock and Parent Preferred Stock, together with any cash in lieu of Fractional Shares, dividends
or distributions with respect thereto, the “Exchange Fund”). Promptly after the Effective Time and in any event within
ten (10) Business Days after the Effective Time, Parent will cause the Exchange Agent to send to each holder of record (as of immediately
prior to the Effective Time) of a Certificate (i) a letter of transmittal in customary form (which shall specify that delivery shall
be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange
Agent or by appropriate guarantee of delivery in the form customarily used in transactions of this nature from a member of a national
securities exchange, a member of the Financial Industry Regulatory Authority, or a commercial bank or trust company in the United States)
and shall have such other terms as shall be reasonably requested by the Company prior to the Closing for use in effecting delivery of
shares of Company Common Stock or Company Preferred Stock to the Exchange Agent and (ii) instructions for effecting the surrender
of Certificates in exchange for the Merger Consideration issuable and payable in respect thereof (including any cash in lieu of Fractional
Shares pursuant to Section 2.6(f)) and any dividends or other distributions to which such holders are entitled pursuant to
Section 2.7(d). Each holder of Book Entry Shares immediately prior to the Effective Time shall not be required to deliver
a Certificate or an executed letter of transmittal to the Exchange Agent to receive the applicable Merger Consideration payable pursuant
to Section 2.1 (including cash in lieu of any Fractional Shares pursuant to Section 2.6(f)). In lieu thereof,
each holder of record of one or more Book Entry Shares may provide an “agent’s message” in customary form with respect
to any Book Entry Share (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request).
(b) Exchange
Procedure. Each holder of shares of Company Common Stock or Company Preferred Stock that have been converted into the right to receive
the Common Consideration or the Preferred Consideration, respectively, to be issued in consideration therefor, upon surrender to the
Exchange Agent of a Certificate (subject to Section 2.7(h)), together with a properly completed letter of transmittal, or
upon receipt by the Exchange Agent of an appropriate agent’s message (or such other evidence, if any, of transfer as the Exchange
Agent may reasonably request) in the case of book-entry transfer of Book Entry Shares, will be entitled to receive (i) the number
of whole shares of Parent Class A Common Stock or Parent Preferred Stock (which shall be in non-certificated book-entry form unless
a physical Certificate is requested) that such holder has the right to receive pursuant to Section 2.6, (ii) cash in
lieu of Fractional Shares, if any, that such holder has the right to receive pursuant to Section 2.6(f) and (iii) a
check or other form of payment in the amount equal to any dividends and other distributions, if any, payable in respect of such whole
shares pursuant to Section 2.7(d). Any such Certificate or Book Entry Share shall forthwith be cancelled. No interest shall
be paid or accrued on any Merger Consideration (including any cash in lieu of any Fractional Share pursuant to Section 2.6(f))
or on any unpaid dividends and distributions payable to holders of Certificates or Book Entry Shares. Until so surrendered, each Certificate
and Book Entry Share shall, after the Effective Time, represent for all purposes only the right to receive such Merger Consideration
(including any cash in lieu of Fractional Shares pursuant to Section 2.6(f)) and any dividends and other distributions in
accordance with Section 2.7(d), without interest.
(c) Certificate
Holder. If any portion of the Merger Consideration (including any cash in lieu of any Fractional Shares pursuant to Section 2.6(f),
or any other payment provided for in this Article II) is to be paid to or registered in the name of a Person other than the
Person in whose name the applicable surrendered Certificate is registered, it shall be a condition to the payment or registration thereof
that the surrendered Certificate shall be properly endorsed or otherwise be in proper form for transfer and that the Person requesting
such delivery of Merger Consideration (including any cash in lieu of any Fractional Shares pursuant to Section 2.6(f), or
other payment) shall pay to the Exchange Agent any transfer or other similar Taxes required as a result of such payment or registration
in the name of a Person other than the registered holder of such Certificate or establish to the satisfaction of the Exchange Agent that
such Tax has been paid or is not payable.
(d) Dividends
and Distributions. No dividends or other distributions with respect to shares of Parent Class A Common Stock or Parent Preferred
Stock issued pursuant to the Merger shall be paid to the holder of any unsurrendered Certificates or non-exchanged Book Entry Shares
that the holder thereof has the right to receive upon the surrender or exchange thereof until such Certificates (subject to Section 2.7(h))
or Book Entry Shares, as applicable, are properly surrendered or exchanged in accordance with this Section 2.7. Promptly
following such surrender or exchange, there shall be paid, without interest, to the record holder of the shares of Parent Class A
Common Stock or Parent Preferred Stock issued in exchange therefor (i) all dividends and other distributions payable in respect
of such shares of Parent Class A Common Stock or Parent Preferred Stock with a record date after the Effective Time and a payment
date on or prior to the date of such surrender or exchange and not previously paid and (ii) at the appropriate payment date, the
dividends or other distributions payable with respect to such shares of Parent Class A Common Stock and Parent Preferred Stock with
a record date after the Effective Time but with a payment date subsequent to the date of such surrender or exchange. For purposes of
dividends or other distributions in respect of shares of Parent Class A Common Stock or Parent Preferred Stock, all shares of Parent
Class A Common Stock or Parent Preferred Stock to be issued pursuant to the Merger shall be entitled to dividends and other distributions
pursuant to the immediately preceding sentence as if issued and outstanding as of the Effective Time.
(e) No
Further Ownership Rights. The Merger Consideration (including any cash in lieu of any Fractional Shares pursuant to Section 2.6(f),
and any other payments) paid in accordance with the terms of this Article II in respect of shares of Company Capital Stock
converted pursuant to Section 2.6 shall be deemed to have been paid in full satisfaction of all rights pertaining to such
shares. After the Effective Time there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation
of shares of Company Capital Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, any Certificates
or Book Entry Shares formerly representing shares of Company Common Stock or Company Preferred Stock are presented to the Surviving Corporation
(or the Surviving Company, as applicable) or the Exchange Agent for any reason, such Certificates shall be canceled and such Certificates
or Book Entry Shares shall be exchanged as provided in this Article II.
(f) Termination
of Exchange Fund. Any portion of the Exchange Fund that remains undistributed to the holders of shares of Company Common Stock or
Company Preferred Stock for twelve (12) months after the Effective Time shall be delivered to Parent, upon demand, and any holder of
Company Common Stock or Company Preferred Stock who has not theretofore complied with this Article II shall thereafter look
only to Parent for payment of its claim for the Merger Consideration (including any cash in lieu of any Fractional Shares pursuant to
Section 2.6(f), and any other payment in accordance with this Article II).
(g) No
Liability. None of Parent, Merger Sub, Merger LLC, the Company or the Exchange Agent shall be liable to any Person in respect of
any Parent Class A Common Stock or Parent Preferred Stock from the Exchange Fund properly delivered to a public official to the
extent required by any applicable abandoned property, escheat or similar Law. If any Certificate or Book Entry Shares shall not have
been surrendered or exchanged prior to the date on which the applicable Merger Consideration (including any cash in lieu of any Fractional
Shares pursuant to Section 2.6(f)) would escheat to or become the property of any Governmental Authority, any such Merger
Consideration (including any cash in lieu of any Fractional Shares pursuant to Section 2.6(f)) shall, to the extent permitted
by applicable Law, immediately prior to such time become the property of Parent, free and clear of all claims or interest of any Person
previously entitled thereto.
(h) Lost
Certificates. If any Certificate shall have been lost, stolen, materially defaced or destroyed, upon the making of an affidavit of
that fact by the Person claiming such Certificate to be lost, stolen, materially defaced or destroyed and, if reasonably required by
Parent, the posting by such Person of a bond in such reasonable amount as Parent may direct as indemnity against any claim that may be
made against it with respect to such Certificate, the Exchange Agent shall pay in respect of such lost, stolen, materially defaced or
destroyed Certificate the Merger Consideration issuable in respect thereof (including any cash in lieu of any Fractional Shares pursuant
to Section 2.6(f)) and any dividends or other distributions to which such holder is entitled pursuant to Section 2.7(d),
with respect to each share of Company Common Stock or Company Preferred Stock formerly represented by such Certificate.
(i) Withholding
Rights. Parent, Merger Sub, Merger LLC, the Company and the Exchange Agent shall each be entitled to deduct and withhold from the
consideration otherwise payable pursuant to this Agreement such amounts as are required to be deducted and withheld with respect to the
making of such payment under any applicable Tax Law. To the extent that amounts are so deducted or withheld by Parent, Merger Sub, Merger
LLC, the Company or the Exchange Agent, as applicable, and timely paid to the applicable Governmental Authority, such withheld amounts
shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding
was made.
Section 2.8 Company
Equity Awards.
(a) Immediately
prior to the Effective Time, any vesting conditions applicable to each Company Stock Option that is outstanding immediately prior to
the Effective Time shall, automatically and without any required action on the part of the holder thereof, accelerate in full, and at
the Effective Time, each Company Stock Option shall, automatically and without any action on the part of the holder thereof, be converted
into the right to receive that number of validly issued, fully paid and nonassessable shares of Parent Class A Common Stock (rounded
down to the nearest whole share) equal to the quotient of (x) the product of (A) the excess, if any, of the Merger Consideration
Value over the per share exercise price of the applicable Company Stock Option, multiplied by (B) the number of shares of
Company Common Stock subject to such Company Stock Option immediately prior to the Effective Time, divided by (y) the Parent
Closing Price. Any Company Stock Option that has an exercise price per share of Company Common Stock that is equal to or greater than
the Merger Consideration Value shall be canceled for no consideration. For purposes of this Section 2.8(a), the terms:
(i) “Merger
Consideration Value” means the product of (x) the Common Exchange Ratio multiplied by (y) the Parent Closing
Price.
(ii) “Parent
Closing Price” means the volume-weighted average price of Parent Class A Common Stock for the five (5) consecutive
trading days ending two (2) trading days prior to the Closing Date as reported by Bloomberg, L.P.
(b) Effective
as of ten (10) Business Days prior to the Closing Date (or such other date on or around that time as may be determined by the Company
Board (or authorized committee thereof)), each Company Unit Award (excluding each GCI Employee Unit Award) that is outstanding as of
such time, shall, automatically and without any required action on the part of the holder thereof, accelerate and become fully vested
(with applicable performance goals in respect of performance periods that are incomplete at such time, if any, being deemed satisfied
at 100% of target) and all such shares of Company Common Stock underlying such Company Unit Award, less applicable tax withholdings,
that are outstanding as of the Effective Time shall be treated as outstanding shares of Company Common Stock in the Merger and be treated
as provided for in Section 2.6 and Section 2.7.
(c) Effective
as of ten (10) Business Days prior to the Closing Date (or such other date on or around that time as may be determined by the Company
Board (or authorized committee thereof)), any vesting conditions applicable to each Company Restricted Common Stock Award that is outstanding
as of such time shall, automatically and without any required action on the part of the holder thereof, accelerate and become fully vested,
and all shares of Company Common Stock subject to each Company Restricted Common Stock Award, less applicable tax withholdings, shall
be treated as provided for in Section 2.6 and Section 2.7.
(d) Prior
to the Effective Time, the Company Board (or authorized committee thereof) shall take such action and adopt such resolutions as are required
or appropriate to (i) effectuate the treatment of the Company Equity Awards pursuant to the terms of this Section 2.8
and (ii) if requested by Parent in writing, cause the Company Stock Plans to terminate effective as of the Effective Time.
Section 2.9 Further
Assurances. If, at any time before or after the Effective Time, Parent or the Company reasonably believes or is advised that any
further instruments, deeds, assignments or assurances are reasonably necessary or desirable to consummate the transactions contemplated
by the Transaction Documents or to carry out the purposes and intent of the Transaction Documents at or after the Effective Time, then
the Company, Parent, the Surviving Corporation or the Surviving Company, as applicable, and their respective officers and directors shall
execute and deliver all such proper deeds, assignments, instruments and assurances and do all other things reasonably necessary or desirable
to consummate such contemplated transactions and to carry out the purposes and intent of the Transaction Documents.
Article III
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
Subject to Section 1.3(c) and
except as set forth in (a) the Company SEC Documents filed and publicly available at least two (2) Business Days prior to the
date of this Agreement (other than any disclosure set forth under “Risk Factors” or any “forward-looking statements”
section or that are similarly cautionary, non-specific or predictive in nature) (provided, that in no event will any disclosure
in the Company SEC Documents qualify or limit the representations and warranties in Sections 3.1 (Organization; Standing and Power),
3.2 (Capitalization), 3.4 (Authorization), 3.15 (Tax Matters), 3.18 (Anti-Takeover Statutes), 3.19
(Ownership in Parent), 3.20 (Brokers and Other Advisors) or 3.21 (Opinion of Financial Advisor) of this Agreement) or (b) the
corresponding section of the Company Disclosure Letter (it being agreed that disclosure of any item in any section of the Company Disclosure
Letter shall be deemed disclosed with respect to any other section but only to the extent the relevance of a disclosure or statement
therein to a section of this Article III is reasonably apparent on its face without independent inquiry and that the mere
inclusion of an item in the Company Disclosure Letter as an exception to a representation or warranty (or covenant, as applicable) shall
not be deemed an admission that such item represents a material exception or material fact, event or circumstance or that such item has
had or would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect), the Company represents
and warrants to Parent, Merger LLC and Merger Sub as follows (provided, that no representation or warranty is made in this Article III
with respect to the substance of any financial or other information (A) which has directly been provided by Parent specifically
for the purpose of assisting the Company with its SEC reporting obligations as a public company, or (B) extracted (and reproduced
in the Company SEC Documents without any material or substantive alteration thereto, or any analysis or further calculation or interpretation
thereof) from the Parent SEC Documents):
Section 3.1 Organization;
Standing and Power. The Company (a) is a corporation duly incorporated, validly existing and in good standing under the Laws
of the State of Delaware, (b) has all requisite corporate power and authority to own, lease and operate its properties and to carry
on its business as currently conducted and (c) is duly qualified or licensed to do business as a foreign corporation, and is in
good standing (with respect to jurisdictions which recognize such concept), in each jurisdiction where the character of the properties
owned, leased or operated by it or the nature of its activities makes such qualification or licensing necessary, except in the case of
clauses (b) and (c) as would not, individually or in the aggregate, reasonably be expected to have (x) a
Company Material Adverse Effect or (y) a material adverse effect on the ability of the Company to consummate the transactions contemplated
by the Transaction Documents to which the Company is a party prior to the Drop Dead Date. The Company has made available to Parent, prior
to the date of this Agreement, a complete and correct copy of the Company Governance Instruments in effect as of the date of this Agreement.
Section 3.2 Capitalization.
(a) The
authorized capital stock of the Company consists of (i) five hundred million (500,000,000) shares of Company Series A Common
Stock, (ii) eighteen million seven hundred fifty thousand (18,750,000) shares of Company Series B Common Stock, (iii) five
hundred million (500,000,000) shares of Company Series C Common Stock, and (iv) fifty million (50,000,000) shares of preferred
stock, par value $0.01 per share, issuable in series with seven million three hundred thousand (7,300,000) shares designated as Company
Preferred Stock. No other shares of capital stock of, or other equity or voting interests in, the Company are authorized.
(b) As
of the close of business on November 8, 2024, (i) 18,238,386 shares of Company Series A Common Stock were issued and outstanding,
(ii) 2,020,332 shares of Company Series B Common Stock were issued and outstanding, (iii) 122,589,376 shares of Company
Series C Common Stock were issued and outstanding (which figure includes 1,135 Company Restricted Common Stock Awards), (iv) 7,183,812
shares of Company Preferred Stock were issued and outstanding, (v) no shares of Company Common Stock were held in treasury by the
Company, (vi) a total of 8,594,337 shares of Company Common Stock were available for future awards under the Company Stock Plans,
(vii) 95,410 shares of Company Series B Common Stock were subject to outstanding unexercised Company Series B Stock Options,
(viii) 4,246,075 shares of Company Series C Common Stock were subject to outstanding unexercised Company Series C Stock
Options, (ix) 371,275 shares of Company Series C Common Stock were subject to outstanding Company RSU Awards, (x) 74,927
shares of Company Series C Common Stock were subject to outstanding Company PSU Awards, and (xi) no other shares of Company
Capital Stock of, or other equity interests in, the Company were issued, reserved for issuance or outstanding. All of the outstanding
shares of Company Capital Stock have been duly authorized and validly issued, and are fully paid and non-assessable and were issued in
compliance with applicable securities Laws. There are no preemptive or similar rights granted by the Company or any Subsidiary of the
Company to any holders of any class of securities of the Company or any Subsidiary of the Company. No shares of the Company are owned
by any Subsidiary of the Company. From the close of business on November 8, 2024 through the date of this Agreement, there have
been no issuances, repurchases or redemptions by the Company of shares of Company Capital Stock or other equity interests in the Company
or issuances by the Company of options, warrants, convertible or exchangeable securities, stock-based performance units or other rights
to acquire shares of Company Capital Stock or other equity interests in the Company or other rights that give the holder thereof any
economic or voting interest of a nature accruing to the holders of shares of Company Capital Stock or other equity interests in the Company,
other than the issuance of Company Common Stock upon the exercise of Company Stock Options or the settlement of Company Unit Awards or
the withholding of shares for the satisfaction of applicable tax withholding requirements (or as to Company Stock Options, the applicable
exercise price) related to Company Stock Options, Company Unit Awards, or Company Restricted Common Stock Awards, in each case outstanding
as of the close of business on November 8, 2024 and in accordance with the terms thereof.
(c) Neither
the Company nor any Subsidiary of the Company has outstanding any bonds, debentures, notes or other obligations the holders of which
have the right to vote (or which are convertible into or exercisable for securities having the right to vote) with the Company Stockholders
or the stockholders of any such Subsidiary on any matter (“Voting Company Debt”).
(d) Except
as set forth in Section 3.2(b), or pursuant to any Transaction Document, other than the Company Equity Awards, there are
not, as of the date of this Agreement, any options, warrants, rights, convertible or exchangeable securities, “phantom” stock
rights, stock appreciation rights, restricted stock units, stock-based performance units, commitments, Contracts, arrangements or undertakings
of any kind to which the Company or any of its Subsidiaries is a party or by which any of them is bound (i) obligating the Company
or any of its Subsidiaries to issue, deliver or sell or cause to be issued, delivered or sold, additional shares of capital stock of,
or other equity interests in, or any security convertible into or exercisable for or exchangeable into any capital stock of, or other
equity interest in, the Company or any of its Subsidiaries or any Voting Company Debt, (ii) obligating the Company or any of its
Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, Contract, arrangement
or undertaking or (iii) that give any Person the right to receive any economic benefit or right similar to or derived from the economic
benefits and rights accruing to holders of Company Capital Stock, or other equity interests in the Company. As of the date of this Agreement,
except pursuant to any Transaction Document, there are no outstanding contractual obligations of the Company or any of its Subsidiaries
to repurchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its Subsidiaries. Other than the Voting
Agreements, there are no proxies, voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries
is a party or is bound with respect to the voting of the capital stock of, or other equity interests in, the Company or any of its Subsidiaries.
There are no agreements pursuant to which the Company or any of its Subsidiaries is a party or is bound pursuant to which any Person
is entitled to elect, designate or nominate any director of the Company or any of its Subsidiaries.
(e) Section 3.2(e) of
the Company Disclosure Letter sets forth, in all material respects, the following information as of the close of business on November 8,
2024 with respect to each outstanding Company Equity Award: the aggregate number of shares issuable thereunder (based on the target and
maximum levels of performance with respect to Company PSU Awards), the type of Company Equity Award and series of Company Common Stock
subject to such award, the grant date, the expiration date (if applicable), the exercise price or reference price (if applicable) and
the vesting schedule. Each Company Stock Option was granted under a Company Stock Plan (or predecessor plan referenced therein) in accordance
with applicable Law and the terms of the Company Stock Plan (or predecessor plan referenced therein) applicable thereto.
(f) The
Company is not party to any “poison pill” rights plan or similar plan or agreement relating to any shares of Company Capital
Stock or other equity interests of the Company.
(g) No
event or circumstance has occurred that has resulted or will result, pursuant to the terms of the 2053 Exchangeable Debentures Indenture,
in (i) an adjustment to the number of Reference Shares (as defined in the 2053 Exchangeable Debentures Indenture) attributable to
each Debenture (as defined in the 2053 Exchangeable Debentures Indenture) from 1.8901 shares of Parent Common Stock, (ii) a Reference
Share being anything other than one (1) share of Parent Common Stock or (iii) the Adjusted Principal Amount (as defined in
the 2053 Exchangeable Debentures Indenture) not being equal to the Original Principal Amount (as defined in the 2053 Exchangeable
Debentures Indenture), in each case other than any such event or circumstance that resulted or results from actions taken by Parent or
any of its Affiliates. As of the date hereof, the aggregate outstanding Adjusted Principal Amount (as defined in the 2053 Exchangeable
Debentures Indenture) of the 2053 Exchangeable Debentures is $965,000,000.
(h) No
event or circumstance has occurred that has resulted or will result, pursuant to the terms of the 2054 Exchangeable Debentures Indenture,
in (i) an adjustment to the number of Reference Shares (as defined in the 2054 Exchangeable Debentures Indenture) attributable to
each Debenture (as defined in the 2054 Exchangeable Debentures Indenture) from 2.5442 shares of Parent Common Stock, (ii) a Reference
Share being anything other than one (1) share of Parent Common Stock or (iii) the Adjusted Principal Amount (as defined in
the 2054 Exchangeable Debentures Indenture) not being equal to the Original Principal Amount (as defined in the 2054 Exchangeable
Debentures Indenture), in each case other than any such event or circumstance that resulted or results from actions taken by Parent or
any of its Affiliates. As of the date hereof, the aggregate outstanding Adjusted Principal Amount (as defined in the 2054 Exchangeable
Debentures Indenture) of the 2054 Exchangeable Debentures is $860,000,000.
Section 3.3 Subsidiaries.
(a) Each
Subsidiary of the Company (i) is a corporation or other entity duly organized, validly existing and in good standing (with respect
to jurisdictions which recognize such concept) under the Laws of its jurisdiction of incorporation or organization, (ii) has all
requisite power and authority to own, lease and operate its properties and to carry on its business as currently conducted and (iii) is
duly qualified or licensed to do business and is in good standing in each jurisdiction where the character of the properties owned, leased
or operated by it or the nature of its activities makes such qualification or licensing necessary, except in the case of clauses (ii) and
(iii), as would not, individually or in the aggregate, reasonably be expected to have (x) a Company Material Adverse Effect
or (y) a material adverse effect on the ability of the Company to consummate the transactions contemplated by the Transaction Documents
to which the Company is a party prior to the Drop Dead Date.
(b) All
of the outstanding shares of capital stock of, or other equity interests in, each Subsidiary of the Company have been duly authorized
and validly issued, are fully paid and non-assessable and were issued in compliance with applicable securities Laws. All of the outstanding
capital stock, or other equity interests in, each Wholly Owned Subsidiary of the Company is owned by the Company, its Subsidiaries or
by the Company and another Subsidiary. All of the outstanding capital stock or other equity interests in each Wholly Owned Subsidiary
of the Company is owned free and clear of any Encumbrance and free of any other limitation or restriction (including any restriction
on the right to vote, sell or otherwise dispose of such capital stock or other equity interest), other than Permitted Encumbrances.
(c) Section 3.3(c) of
the Company Disclosure Letter (i) lists, as of the date of this Agreement, (A) each Non-GCI Subsidiary of the Company, (B) its
jurisdiction of incorporation or organization, (C) the location of its principal executive office and (D) the type and number
of interests held of record by the Company and (ii) lists any other Person (other than GCI Spinco, GCI and their respective Subsidiaries)
in which the Company or any of its Non-GCI Subsidiaries owns Equity (other than Subsidiaries of the Company) and sets forth all Equity
of such Person that is owned, in whole or in part, directly or indirectly, by the Company or its Subsidiaries (such equity interests
referred to in this clause (ii), collectively, the “Company Other Interests”). All Company Other Interests
(including, for purposes of this sentence only, and only prior to the consummation of the GCI Divestiture, Equity of GCI Spinco (when
in existence), GCI and their respective Subsidiaries) are fully paid and non-assessable and are owned, directly or indirectly, by the
Company or one of its Subsidiaries free and clear of any Encumbrance and free of any other limitation or restriction (including any restriction
on the right to vote, sell or otherwise dispose of such Company Other Interests), other than Permitted Encumbrances. Except as provided
by any Transaction Document, there are no restrictions with respect to the Company (or any Subsidiary of the Company, as applicable)
voting any of the Company Other Interests. The Company has made available to Parent complete and correct copies of any stockholders’
agreements, voting agreements or other agreements with respect to the ownership of Company Other Interests in effect as of the date of
this Agreement to which the Company or any of its Non-GCI Subsidiaries are a party.
Section 3.4 Authorization.
(a) The
Company has all requisite corporate power and authority to execute and deliver the Transaction Documents to which it is a party, to perform
its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby, subject, in the case of
the Merger, to the receipt of the Company Stockholder Approval and the Company Disinterested Stockholder Approval. Assuming the accuracy
of the representations in Section 4.15, the execution, delivery and performance of the Transaction Documents to which the
Company is a party and the consummation by the Company of the transactions contemplated hereby and thereby have been duly and validly
authorized by all necessary corporate action on the part of the Company, and no other corporate proceedings on the part of the Company
are necessary to authorize the execution and delivery of the Transaction Documents to which the Company is a party or the consummation
of the transactions contemplated hereby and thereby, other than, with respect to the Merger, the Company Stockholder Approval and the
Company Disinterested Stockholder Approval. This Agreement has been duly and validly executed and delivered by the Company and, assuming
the due execution and delivery by Parent, Merger Sub and Merger LLC, constitutes the valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
rehabilitation, liquidation, preferential transfer, moratorium and similar Laws now or hereafter affecting creditors’ rights generally
and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at equity
or law).
(b) The
Company Board has unanimously (i) determined that the Transaction Documents and the transactions contemplated hereby and thereby,
including the Merger, are advisable and fair to, and in the best interests of, the Company and the Company Disinterested Stockholders,
(ii) approved (including for purposes of Section 203 of the DGCL) and declared advisable the Transaction Documents and the
transactions contemplated hereby and thereby, including the Merger, (iii) directed that this Agreement be submitted to the Company
Voting Stockholders (including the Company Disinterested Stockholders) for adoption and (iv) resolved to recommend that the Company
Voting Stockholders (including the Company Disinterested Stockholders) approve the adoption of this Agreement (such recommendation, the
“Company Board Recommendation”). As of the date of this Agreement, the foregoing determinations and resolutions have
not been rescinded, modified or withdrawn.
(c) Assuming
the accuracy of the representations in Section 4.15, the only votes of the holders of any class or series of Company Capital
Stock necessary to adopt the Transaction Documents and to consummate the transactions contemplated hereby and thereby are the adoption
of this Agreement by: (i) the affirmative vote of holders of a majority of the aggregate voting power of the outstanding shares
of Company Series A Common Stock, Company Series B Common Stock and Company Preferred Stock entitled to vote thereon, voting
together as a single class in accordance with the Company Charter (the “Company Stockholder Approval”), and (ii) the
affirmative vote of holders of a majority of the aggregate voting power of the outstanding shares of Company Series A Common Stock,
Company Series B Common Stock and Company Preferred Stock entitled to vote thereon (other than any outstanding shares of Company
Capital Stock beneficially owned, directly or indirectly, by (A) Parent and its Subsidiaries, (B) the Malone Group, the Maffei
Group and their respective Affiliates, (C) A/N and its Affiliates, (D) the members of the Parent Board and the Parent Section 16
Officers, (E) the members of the Company Board and the Company Section 16 Officers or (F) the immediate family members
(as defined in Item 404 of Regulation S-K) of any of the foregoing), voting together as a single class (the “Company Disinterested
Stockholder Approval” and the holders of Company Capital Stock entitled to vote on the Company Disinterested Stockholder Approval,
the “Company Disinterested Stockholders”).
Section 3.5 Consents
and Approvals; No Violations.
(a) The
execution, delivery and performance by the Company of the Transaction Documents to which it is a party and the consummation by the Company
of the transactions contemplated hereby and thereby do not and will not require any filing or registration with, notification to, or
authorization, permit, license, declaration, Order, expiration of any applicable waiting period, consent or approval of any Governmental
Authority by the Company other than (i) as may be required by Competition Laws, including the HSR Act, (ii) the declaration
of effectiveness under the Securities Act of the Registration Statement, (iii) the filing with the SEC of (A) the Joint Proxy
Statement in definitive form and (B) such reports and other filings under the Exchange Act as may be required in connection with
the Transaction Documents and the transactions contemplated hereby and thereby, (iv) such clearances, consents, approvals, Orders,
licenses, authorizations, registrations, declarations, permits, filings and notifications as may be required under applicable U.S. federal
and state or foreign securities Laws or the rules and regulations of Nasdaq, (v) the filing of the Certificate of Merger, the
Upstream Merger Certificate, the Certificate of Designations or other documents as required by the DGCL or DLLCA, (vi) Tax filings
or (vii) such other actions or filings the absence of which would not, individually or in the aggregate, reasonably be expected
to have (x) a Company Material Adverse Effect or (y) a material adverse effect on the ability of the Company to consummate
the transactions contemplated by the Transaction Documents to which the Company is a party prior to the Drop Dead Date.
(b) The
execution, delivery and, subject to the receipt of the Company Stockholder Approval and the Company Disinterested Stockholder Approval,
performance by the Company of the Transaction Documents to which it is a party and the consummation by the Company of the transactions
contemplated hereby and thereby do not and will not (i) conflict with or violate any provision of the Company Governance Instruments
or similar organizational documents of any of its Subsidiaries, (ii) assuming that all consents, approvals, authorizations and other
actions described in Section 3.5(a) have been obtained and all filings and other obligations described in Section 3.5(a) have
been made (and any applicable waiting periods, including any applicable HSR Act waiting periods, and any agreements not to close, shall
have expired or been terminated), and assuming the accuracy of the representations in Section 4.15, conflict with or violate
any Law applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries
is bound, (iii) require any consent or notice, or result in any violation or breach of, or conflict with, or constitute (with or
without notice or lapse of time or both) a default (or give rise to any right of purchase, termination, amendment, acceleration or cancellation)
under, result in the loss of any benefit under, or result in the triggering of any payments or requirements to purchase or redeem any
Indebtedness or capital stock pursuant to, any of the terms, conditions or provisions of any material Contract to which the Company or
any of its Subsidiaries is a party or by which any property or asset of the Company or any of its Subsidiaries is bound or (iv) result
in any Encumbrance (except for Permitted Encumbrances) on any property or asset of the Company or any of its Subsidiaries, except, with
respect to clauses (ii), (iii) and (iv) of this Section 3.5(b) as would not, individually
or in the aggregate, reasonably be expected to have (x) a Company Material Adverse Effect or (y) a material adverse effect
on the ability of the Company to consummate the transactions contemplated by the Transaction Documents to which the Company is a party
prior to the Drop Dead Date.
Section 3.6 SEC
Reports and Financial Statements.
(a) The
Company has timely filed with, or furnished to, as applicable, the SEC all registration statements, prospectuses, reports, forms, statements,
schedules, certifications and other documents required to be filed or furnished by the Company since the Lookback Date (together with
all exhibits and schedules thereto and all information incorporated therein by reference, the “Company SEC Documents”).
As of their respective dates, or if amended, as of the date of the last such amendment, the Company SEC Documents (i) were prepared
in accordance and complied in all material respects with the requirements of the Sarbanes Act, the Securities Act and the Exchange Act
(to the extent then applicable) and (ii) did not 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 therein, in light of the circumstances under which they were
made, not misleading.
(b) Each
of the consolidated financial statements (including, in each case, any related notes thereto) contained in or incorporated by reference
in the Company SEC Documents, (i) complied, as of its respective date of filing with the SEC, in all material respects with the
published rules and regulations of the SEC with respect thereto, (ii) was prepared in accordance with Regulation S-X under
the Exchange Act and with GAAP applied on a consistent basis during the periods indicated (except as may be indicated in the notes thereto
or, in the case of unaudited interim financial statements, as may be permitted by the SEC on Form 10-Q under the Exchange Act) and
(iii) fairly presented in all material respects the consolidated financial position of the Company and its Subsidiaries, as of the
respective dates thereof and the consolidated results of the Company’s and its Subsidiaries’ operations and cash flows for
the periods indicated (except that the unaudited interim financial statements were or will be subject to normal and recurring year-end
and quarter-end adjustments that are not in the aggregate material).
(c) Since
the Lookback Date, the Company has maintained disclosure controls and procedures and internal control over financial reporting (as such
terms are defined in Rules 13a-15 and 15d-15 under the Exchange Act) substantially as required by Rules 13a-15 and 15d-15 under
the Exchange Act. The Company’s disclosure controls and procedures are reasonably designed to ensure that all information (both
financial and non-financial) required to be disclosed by the Company in the reports that it files or furnishes under the Exchange Act
is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all
such information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding
required disclosure and to make the certifications required pursuant to Sections 302 and 906 of the Sarbanes Act. The Company’s
management has completed an assessment of the effectiveness of the Company’s internal controls and procedures and, to the extent
required by applicable Law, presented in any applicable Company SEC Document, or any amendment thereto, its conclusions about the effectiveness
of the internal control structures and procedures as of the end of the period covered by such report or amendment based on such evaluation.
In connection with the Company management’s most recently completed assessment of the Company’s internal controls over financial
reporting, (i) the Company’s principal executive officer and its principal financial officer have disclosed to the Company’s
auditors and audit committee any significant deficiencies and material weaknesses in the design or operation of internal controls over
financial reporting and (ii) to the Company’s Knowledge there is no fraud, whether or not material, that involves management
or other employees who have a significant role in the Company’s internal control over financial reporting. To the Company’s
Knowledge, no executive officer or director of the Company has received or otherwise had or obtained knowledge of, and no auditor, accountant,
employee or Representative of the Company has provided written notice to the Company or any executive officer or director of, any substantive
complaint or allegation that the Company or any of its Subsidiaries has engaged in improper accounting practices.
(d) As
of the date of this Agreement and to the Company’s Knowledge, there are no outstanding or unresolved comments in any comment letters
from the Staff of the SEC relating to the Company SEC Documents and received by the Company prior to the date of this Agreement. None
of the Company SEC Documents filed on or prior to the date of this Agreement is, to the Company’s Knowledge, subject to ongoing
SEC review or investigation.
(e) Since
the Lookback Date, except as disclosed in the Company SEC Documents, no event has occurred and no transactions or series of transactions,
agreements, arrangements, understandings or relationship or relationships to which the Company or any of its Subsidiaries was or is to
be a party exists that would be required to be disclosed by the Company pursuant to Item 404 of Regulation S-K.
(f) Since
the Lookback Date, the Company has complied in all material respects with the applicable listing and corporate governance rules and
regulations of Nasdaq.
Section 3.7 No
Undisclosed Liabilities.
(a) Except
as reflected or specifically reserved against or disclosed in the balance sheet of the Company dated September 30, 2024 included
in the Form 10-Q filed by the Company with the SEC on November 7, 2024 (or described in the notes thereto) or as reflected
or specifically reserved against or disclosed in the balance sheet of the Company dated December 31, 2023 included in the Form 10-K
filed by the Company with the SEC on February 16, 2024 (or described in the notes thereto), neither the Company nor any of its Subsidiaries
has any Liabilities except (i) Liabilities incurred since September 30, 2024 in the ordinary course consistent with past practice,
(ii) Liabilities incurred in connection with the Transaction Documents or the transactions contemplated hereby and thereby or (iii) Liabilities
that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; provided,
that in no event shall any Liability of Parent, the Portfolio Company, GCI or any of their respective Subsidiaries be deemed a Liability
of the Company or any of its Subsidiaries for purposes of this Section 3.7(a). Neither the Company nor any of its Subsidiaries
is a party to, or has any legally binding commitment to become a party to, any joint venture, off-balance sheet partnership or any similar
Contract or legally binding arrangement (including any Contract or legally binding arrangement relating to any transaction or relationship
between or among the Company and any of its Subsidiaries, on the one hand, and any unconsolidated Affiliate, including any structured
finance, special purpose or limited purpose entity or Person, on the other hand, or any material “off-balance sheet arrangement”
(as defined in Item 303(a) of Regulation S-K of the Exchange Act)), where the result, purpose or intended effect of such Contract
or legally binding arrangement is to avoid disclosure of any material transaction involving, or material Liabilities of the Company or
any of its Subsidiaries.
(b) Section 3.7(b) of
the Company Disclosure Letter lists, as of the date of this Agreement, all expenses and Liabilities of the Company or any of its Non-GCI
Subsidiaries that are equal to or exceed $10,000,000 in any twelve (12) month period since the Lookback Date.
(c) To
the Company’s Knowledge, neither the Company nor any of its Subsidiaries has incurred or accrued any material Liabilities pursuant
to the Contract underlying the Indemnification Agreement Joinder.
Section 3.8 Absence
of Certain Changes.
(a) Since
December 31, 2023, there have been no changes, effects, events, occurrences, state of facts or developments that have had or would,
individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;
(b) Since
December 31, 2023 until the date hereof, the business of the Company and its Subsidiaries, taken as a whole, has been conducted
in the ordinary course consistent with past practice, except for Liabilities incurred in connection with the Transaction Documents or
the transactions contemplated hereby and thereby; and
(c) Since
December 31, 2023 until the date hereof, neither the Company nor any of its Subsidiaries has taken any action that, if taken after
the date of this Agreement, would constitute a material breach of Section 5.1.
Section 3.9 Litigation.
There are no Actions pending or, to the Company’s Knowledge, threatened, against the Company or any of its Subsidiaries or any
of its or their respective properties or relating to the Transaction Documents and the transactions contemplated hereby and thereby that
would, individually or in the aggregate, reasonably be expected to have (x) a Company Material Adverse Effect or (y) a material
adverse effect on the ability of the Company to consummate the transactions contemplated by the Transaction Documents to which the Company
is a party prior to the Drop Dead Date. As of the date of this Agreement, neither the Company nor any of its Subsidiaries (nor any of
its or their respective properties) is subject to or bound by any material Order. The Company and each of its Subsidiaries, as applicable,
have complied with, and are now in compliance with, all Orders to which it is subject to or bound, except as would not, individually
or in the aggregate, reasonably be expected to have (x) a Company Material Adverse Effect or (y) a material adverse effect
on the ability of the Company to consummate the transactions contemplated by the Transaction Documents to which the Company is a party
prior to the Drop Dead Date.
Section 3.10 Compliance
with Applicable Laws.
(a) The
Company and each of its Subsidiaries have, since the Lookback Date, complied, and are in compliance, in all material respects, with all
applicable Laws. Since the Lookback Date, (i) to the Company’s Knowledge, no material unresolved investigation or review by
any Governmental Authority with respect to the Company or any of its Subsidiaries is pending or threatened in writing and (ii) to
the Company’s Knowledge, no Governmental Authority has indicated in writing an intention to conduct any such investigation or review.
(b) The
Company and its Subsidiaries (i) hold all material Governmental Permits necessary for the lawful conduct of their respective businesses
or ownership of their respective properties, and all such Governmental Permits are in full force and effect and (ii) are in material
compliance with all terms and conditions of such Governmental Permits and, to the Company’s Knowledge, no such Governmental Permits
are subject to any actual or threatened revocation, withdrawal, suspension, cancellation, termination or modification action by the issuing
Governmental Authority.
(c) As
of the date of this Agreement, the Company is not required to register as an “investment company” under the Investment Company
Act of 1940.
Section 3.11 Real
Property. Neither the Company nor any of its Subsidiaries owns any real property. Except as set forth in Section 3.11
of the Company Disclosure Letter, neither the Company nor any of its Non-GCI Subsidiaries is party to any leaseholds, subleases or licenses
under which the Company or any of its Subsidiaries leases, subleases or licenses any real property as a tenant to conduct its business.
Section 3.12 Intellectual
Property, IT Systems, Data Privacy and Security.
(a) Neither
the Company or any of its Non-GCI Subsidiaries owns any Intellectual Property. To the Company’s Knowledge, neither the Company
nor any of its Subsidiaries is infringing, misappropriating or otherwise violating in any material respect, the Intellectual Property
rights of any Person.
(b) The
Company IT Systems are in good repair and working condition in all material respects (including with respect to working condition, performance
and capacity) to effectively perform all information technology operations for which they are currently used.
(c) The
Company and its Subsidiaries (i) have a privacy policy or policies regarding the collection, use, protection, security, disclosure,
share, transfer and sale, transmission (collectively, “Use”) of Personal Data and (ii) to the Company’s
Knowledge, are in compliance in all material respects with the privacy policies applicable to the Company and its Subsidiaries and all
applicable Data Security Requirements. No claim or action is pending or threatened in writing against the Company or any of its Subsidiaries
relating to its Use of Personal Data that would, individually or in the aggregate, reasonably be expected to have a Company Material
Adverse Effect. Neither the execution, delivery or performance of the Transaction Documents to which the Company is a party, nor the
consummation of the transactions contemplated hereby and thereby, will result in any violation, in any material respect, of (i) any
of the Company’s or its Subsidiaries’ privacy policies, or (ii) of any agreement of the Company or its Subsidiaries
with respect to the Use of Personal Data, in the case of each of the foregoing, other than as would not, individually or in the aggregate,
reasonably be expected to have a Company Material Adverse Effect.
(d) The
Company and its Subsidiaries have established, and are in compliance in all material respects with, (i) information security policies
or programs that (A) include safeguards for the security, confidentiality, and integrity of transactions and confidential or proprietary
data, and (B) are designed to protect against unauthorized access to and disclosure of the Company IT Systems and proprietary data
and (ii) business continuity and back-up and disaster recovery plans and procedures. Neither the Company nor its Subsidiaries have
been notified in writing by any Third Party (including pursuant to an audit by such Third Party) of, and to the Company’s Knowledge
there is not, any material data security, information security or other technological deficiency with respect to the Company IT Systems
that is unmitigated or lacks compensating security controls, or that presents a material risk of unauthorized Use or loss of any Personal
Data. To the Company’s Knowledge, neither the Company nor any of its Subsidiaries has suffered a material security breach with
respect to any proprietary data or trade secrets since the Lookback Date.
Section 3.13 Insurance.
Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the Company
and its Subsidiaries maintain insurance coverage with reputable insurers in such amounts and covering such risks as the Company reasonably
believes, based on past experience, is adequate for the businesses and operations of the Company and its Subsidiaries (taking into account
the cost and availability of such insurance). All such insurance policies are in full force and effect. Neither the Company
nor any of its Subsidiaries have received written notice of cancellation of any such insurance policy or is in material breach of, or
material default under, any such insurance policy, and all premiums due thereunder have been timely paid. There is no material claim
by the Company or any of its Subsidiaries pending under any such insurance policy as to which coverage has been questioned, denied or
disputed by the underwriters of such policies.
Section 3.14 Tax.
Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect:
(a) (i) all
Tax Returns required to be filed with any Governmental Authority by or on behalf of the Company or any of its Subsidiaries have been
timely filed when due (taking into account any extension of time within which to file); (ii) all such Tax Returns are true, accurate
and complete and have been prepared in compliance with all applicable Laws; (iii) all Taxes due and payable by the Company or any
of its Subsidiaries (including any Taxes that are required to be collected, deducted or withheld in connection with any amounts paid
or owing to, or received or owing from, any employee, creditor, independent contractor or other Third Party) have been timely paid (or
collected or withheld and remitted) to the appropriate Governmental Authority, except for Taxes or Tax matters being contested in good
faith and for which adequate reserves have been established in accordance with GAAP in the Company SEC Documents filed prior to the date
of this Agreement; (iv) since January 1, 2018, no written claim has been made by any Governmental Authority in a jurisdiction
where the Company or any of its Subsidiaries does not file a Tax Return of a particular type that the Company or any of its Subsidiaries
is or may be subject to Tax, or required to file Tax Returns, of such type in that jurisdiction, other than any such claims that have
been fully resolved; and (v) there are no Encumbrances on any of the assets of the Company or any of its Subsidiaries that arose
in connection with any failure (or alleged failure) to pay any Tax (except for Permitted Encumbrances);
(b) each
of the Company and its Subsidiaries has complied with all applicable Laws relating to the withholding of Taxes and has, within the time
and the manner prescribed by applicable Law, withheld from and paid over to the appropriate Governmental Authorities all amounts required
to be so withheld and paid over under all applicable Laws;
(c) no
outstanding written claim has been received by, and no audit, action, or proceeding is in progress or threatened in writing, against
or with respect to the Company or any of its Subsidiaries in respect of any Tax, and all deficiencies, assessments or proposed adjustments
asserted against the Company or any of its Subsidiaries by any Governmental Authority have been paid or fully and finally settled;
(d) neither
the Company nor any of its Subsidiaries (i) has any Liability for the Taxes of any Person (other than the Company or any of their
respective Subsidiaries) under Section 1.1502-6 of the Treasury Regulations (or any similar provision of state, local or foreign
Tax Law), as a transferee or successor, or otherwise by operation of Law, (ii) is a party to any Tax sharing, allocation or indemnification
agreement or arrangement (other than (x) any agreement or arrangement solely among the Company or any of their respective Subsidiaries,
or (y) commercial agreements or arrangements entered into in the ordinary course, the primary subject matter of which does not relate
to Taxes), (iii) has received or applied for a Tax ruling or entered into a closing agreement pursuant to Section 7121 of the
Code (or any similar provision of state, local or foreign law) or (iv) is, or since January 1, 2018 has been, a member of any
affiliated, combined, consolidated, unitary or similar group filing a consolidated, combined, unitary or similar income Tax Return (other
than a group the common parent of which is the Company or any of their respective Subsidiaries);
(e) no
waiver or extension of any statute of limitations in respect of any Taxes or any extension of time with respect to any Tax assessment
or deficiency is in effect for the Company or any of its Subsidiaries (other than extensions of time to file Tax Returns obtained automatically
in the ordinary course of business);
(f) neither
the Company nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Section 1.6011-4(b)(2) of
the Treasury Regulations;
(g) during
the five-year period ending on the date of this Agreement, neither the Company nor any of its Subsidiaries has been either a “distributing
corporation” or a “controlled corporation” in a distribution of stock qualifying or intended to qualify for tax-free
treatment under Section 355(a) of the Code; and
(h) no
amounts are reasonably expected to be payable to Qurate or any other Person by the Company or any of its Subsidiaries as a result of
obligations arising pursuant to the Tax Sharing Agreement, dated as of March 9, 2018 (the “Qurate TSA”), between
Qurate and Grizzly Merger Sub 1, LLC, a Delaware limited liability company (successor to GCI Liberty, Inc., a Delaware corporation)
(“Grizzly Merger Sub”), and to which the Company became a party pursuant to that certain Assumption and Joinder Agreement
to the Tax Sharing Agreement, dated as of August 6, 2020, by and among the Company, Grizzly Merger Sub and Qurate; the statute of
limitations for all material Taxes which are covered by the Qurate TSA are closed and no outstanding written claim has been received
and no audit, action, or proceeding is in progress or threatened in writing, for which the Company or any of its Subsidiaries may reasonably
be expected to have liability under the Qurate TSA.
Section 3.15 Tax
Matters.
(a) Neither
the Company nor any of its Subsidiaries knows of any fact, agreement, plan or other circumstance that would reasonably be expected to
(i) prevent or preclude the Combination from qualifying as a “reorganization” within the meaning of Section 368(a) of
the Code, (ii) result in any gain or loss being recognized by holders of Company Common Stock pursuant to the Combination (other
than with respect to the receipt of GCI Spinco stock, cash received in lieu of fractional shares of GCI Spinco stock, cash received in
lieu of Fractional Shares, or cash paid in respect of Dissenting Shares) under Sections 354 and 356 of the Code, (iii) result in
any gain or loss (other than, for the avoidance of doubt, gain or loss recognized on the receipt of property other than Parent Capital
Stock) being recognized by the Company on the deemed exchange of its assets for Parent Capital Stock in the Combination under Sections
361(a) or 361(b) of the Code, or (iv) prevent or preclude the Company from making the Company Tax Opinion Representations.
(b) The
Company is not aware of any fact, agreement, plan or other circumstance, and has not taken any action, which fact, agreement, plan, circumstance
or action would reasonably be expected to prevent or preclude the Company from delivering the Company Tax Opinion Representation Letter
immediately prior to the Closing.
Section 3.16 Employees
and Employee Benefits.
(a) Section 3.16(a) of
the Company Disclosure Letter sets forth a true, correct and complete list of each material Company Plan.
(b) (i) A
copy of each material Company Plan and all material amendments thereto are publicly available on EDGAR or have been made available to
Parent; and (ii) the Company has made available to Parent any material non-routine communication from or to any Governmental Authority
regarding any such plan within the past three years.
(c) Neither
the Company, any Company ERISA Affiliate, GCI nor any of its Subsidiaries maintain, sponsor or contribute to or have any obligation to
maintain, sponsor or contribute to, or have had any such obligation during the past six-year period preceding the Closing Date, and no
Company Plan (nor any such plan maintained or contributed to by GCI or any of its Subsidiaries) is (i) a defined benefit pension
plan subject to Section 302 or Title IV of ERISA or Section 412 of the Code, (ii) a multiemployer plan within the meaning
of Section 3(37) of ERISA, (iii) a “multiple employer plan” as defined in Section 413(c) of the Code,
or (iv) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA. Neither the Company,
any Company ERISA Affiliate, GCI nor any of its Subsidiaries has incurred any liability that has not been satisfied to a multiemployer
plan as a result of a complete or partial withdrawal (as those terms are defined in Part I of Subtitle E of Title IV of ERISA) from
a multiemployer plan.
(d) Each
Company Plan and each employee benefit plan of GCI and its Subsidiaries, in each case, intended to be qualified under Section 401(a) of
the Code (a “Qualified Plan”) has received from the Internal Revenue Service a favorable determination letter (or
in the case of a master or prototype plan, a favorable opinion letter or in the case of a volume submitter plan, a favorable advisory
letter) as to its qualification under Section 401(a) of the Code, and to the Company’s Knowledge, no event or condition
exists, whether by action or by failure to act, that would reasonably be expected to adversely affect the qualified status of any such
Qualified Plan. (i) Each Company Plan has been maintained in compliance in all material respects with its terms and with the requirements
prescribed by any and all statutes, orders, rules and regulations, including ERISA and the Code, which are applicable to such Company
Plan, (ii) there is no pending or, to the Company’s Knowledge, threatened material Action against any Company Plan, any fiduciary
thereof, the Company or any of its Subsidiaries, other than routine claims for benefits and (iii) with respect to each Company Plan,
all material contributions, reimbursements and premium payments that are due have been made, and all material contributions, reimbursements
and premium payments for any period ending on or before the Closing that are not yet due have been made or properly accrued.
(e) Neither
the execution of the Transaction Documents to which the Company is a party nor the consummation of the transactions contemplated hereby
and thereby (either alone or together with any other event) will (i) result in the accelerated vesting or payment of, or any increase
in, or in the funding of, any compensation or benefits to any employee, officer or director (other than with respect to the treatment
of Company Equity Awards in accordance with Section 2.8), (ii) result in the entitlement of any employee, officer or
director to additional compensation, including severance or termination pay or benefits, (iii) result in any forgiveness of indebtedness
of any current or former employee or independent contractor of the Company, (iv) limit or restrict the right of the Company to merge,
amend or terminate any of the Company Plans, or (v) result in payment or funding of any amount or provision of any benefit that
would, individually or in combination with any other such payment or benefit, reasonably be expected to constitute an “excess parachute
payment” under Section 280G(b)(1) or 4999 of the Code.
(f) With
respect to each Company Plan which is a group health plan, the Company and the Company ERISA Affiliates have complied in all material
respects with the health care continuation provisions of Section 4980B of the Code and corresponding provisions of ERISA, and neither
the Company nor any of the Company ERISA Affiliates have incurred any Liability under Section 4980 of the Code. No Company Plan
provides, and neither the Company nor any Subsidiary of the Company has any current or potential obligation to provide, any post-retirement
medical, dental or life insurance benefits to any current or former employees (other than coverage mandated by applicable Law, including
the Consolidated Omnibus Budget Reconciliation Act of 1985).
(g) No
current or former director, officer, employee, independent contractor or consultant of the Company or any Subsidiary of the Company is
entitled to receive any gross-up or additional payment from the Company or any of its Subsidiaries by reason of any Tax under Section 409A
or Section 4999 of the Code or otherwise.
(h) No
Action (other than routine claims for benefits) is pending against or, to the Company’s Knowledge, is threatened against, any Company
Plan that, individually or in the aggregate, would reasonably be expected to have, individually or in the aggregate, a Company Material
Adverse Effect.
(i) Neither
the Company nor any of its Subsidiaries is a party to, bound by or subject to, or is currently negotiating in connection with entering
into, any collective bargaining agreement, agreement with any works council, or other labor Contract. To the Company’s Knowledge,
there are no pending or threatened labor union organizing activities or proceedings being conducted with respect to any Company Employees,
and no such activities or proceedings have occurred within the past three years. Except as would not reasonably be expected to be material,
there is no labor strike, lockout, slowdown or stoppage pending or, to the Company’s Knowledge, threatened against or affecting
the Company or any Subsidiary of the Company and no such strike, lockout, slowdown or stoppage has occurred since the Lookback Date.
(j) The
Company is in compliance in all material respects, and in the past three years has complied in all material respects, with all applicable
Laws governing employment or labor, including all contractual commitments and all such Laws relating to wages, hours, worker classification,
contractors, immigration, collective bargaining, discrimination, harassment, whistleblowing, disability rights or benefits, equal opportunity,
restrictive covenants, plant closures and layoffs, employee trainings and notices, civil rights, safety and health and workers’
compensation. There are, and for the past three years there has been, no material Actions pending or, to the Company’s Knowledge,
threatened to be brought or filed against the Company, by or before any Governmental Authority concerning labor- or employment-related
matters.
(k) There
is no material unfair labor practice charge, material labor grievance, labor arbitration, strike, lockout, work stoppage, picketing,
handbilling or other material labor dispute against or affecting the Company or any Subsidiary of the Company pending or, to the Company’s
Knowledge, threatened against the Company or any Subsidiary of the Company, and no such labor dispute or activity has occurred within
the past three years.
(l) Since
the Lookback Date, the Company has promptly, thoroughly and impartially investigated all sexual harassment, assault or misconduct, or
other discrimination or retaliation allegations, in each case, that were made against any current or former employee of the Company at
the level of Senior Vice President or above or member of the Company Board, and, in each case, of which the Company is aware or has been
made aware. With respect to each such allegation with potential merit, the Company has taken prompt corrective action that is reasonably
calculated to prevent further improper action. The Company does not reasonably expect any material liability with respect to any such
allegations.
Section 3.17 Material
Contracts.
(a) Section 3.17(a) of
the Company Disclosure Letter sets forth a complete and correct list, as of the date of this Agreement, of each Contract described below
in this Section 3.17(a) to which the Company or any of its Non-GCI Subsidiaries is a party or bound (any Contract of
the type described in this Section 3.17(a), a “Company Material Contract”):
(i) any
Contract that is a “material contract” as such term is defined in Item 601(b)(10) of Regulation S-K of the Exchange
Act (other than any Company Plan);
(ii) any
Contract relating to Indebtedness (whether incurred, assumed, guaranteed, endorsed or secured by any asset) of the Company or any of
its Non-GCI Subsidiaries with a principal amount or net obligation in excess of $25,000,000, other than financial guarantees entered
into in the ordinary course of business consistent with past practice for an aggregate amount not in excess of $25,000,000 (including
the amount of Indebtedness outstanding under each such Contract (other than as to any leases) as of the date of this Agreement);
(iii) any
Contract that (A) limits or purports to limit, in any material respect, the ability of the Company or any of its Non-GCI Subsidiaries
to compete in any line of business or within any geographic area or with any Person or (B) grants a Third Party (1) any exclusivity,
(2) most favored nation, (3) any right of first refusal or right of first offer or (4) other similar provisions to the
foregoing (1) through (3) (other than Contracts (x) entered into in the ordinary course of business consistent
with past practice that are not material to the conduct of the business of the Company and its Non-GCI Subsidiaries taken as a whole
and (y) that do not purport to bind Affiliates of the Company (including Parent or any of its Affiliates after the Effective Time));
(iv) any
Contract involving future payments, performance of services or delivery of goods or materials to or by the Company and its Non-GCI Subsidiaries
of an amount or value reasonably expected to exceed $50,000,000 in the next five (5) years from the date hereof;
(v) any
Contract entered into after the Lookback Date involving the acquisition or disposition, directly or indirectly (by merger or otherwise),
of assets (other than equipment, supplies or inventory in the ordinary course consistent with past practice) or capital stock or other
equity interests of another Person for aggregate consideration (in one or a series of related transactions) under such Contract of $25,000,000
or more;
(vi) any
Contract relating to the acquisition, ownership (including rights of first offer or rights of first refusal), disposition, conversion,
pledging, hedging or voting of any Parent Common Stock (including any calls, puts, options or other derivative instruments relating to
the Exchangeable Debentures), other than any of the Transaction Documents;
(vii) any
Contract that obligates the Company or any of its Non-GCI Subsidiaries to make any future capital investment or capital expenditure,
other than Contracts entered into in the ordinary course of business consistent with past practice and under which the obligation to
make future capital investment or capital expenditure does not exceed $50,000,000 in the aggregate;
(viii) any
Affiliate Contracts;
(ix) any
registration rights, stockholders, investors rights or similar agreements with respect to the Company or any of its Non-GCI Subsidiaries
or any Company Other Interests held by the Company or any of its Non-GCI Subsidiaries;
(x) any
collective bargaining agreement or other Contract with any labor union or other employee representative or group;
(xi) any
joint venture, partnership or limited liability company agreements or any other similar agreement or arrangement relating to the formation,
creation, operation, management or control of any joint venture, partnership or limited liability company that is material to the business
of the Company and its Non-GCI Subsidiaries, taken as a whole, other than any agreements or arrangements with respect to Wholly Owned
Subsidiaries of the Company; and
(xii) any
Contract that commits the Company or any of its Non-GCI Subsidiaries to enter into any of the foregoing.
(b) The
Company has made available to Parent correct and complete copies of all Company Material Contracts, in effect as of the date of this
Agreement, including all material amendments or other material modifications with respect thereto. As of the date of this Agreement,
neither the Company nor any of its Non-GCI Subsidiaries nor, to the Company’s Knowledge, any other party to a Company Material
Contract, is in breach or violation of, or in default under, any Company Material Contract, and each Company Material Contract is valid
and binding on the Company or one or more of its Non-GCI Subsidiaries, as applicable, and, to the Company’s Knowledge, each other
party thereto, and is enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, rehabilitation, liquidation, preferential transfer, moratorium and similar Laws now or hereafter affecting creditors’
rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a
proceeding at equity or law), and is in full force and effect with respect to each of the Company and one or more of its Non-GCI Subsidiaries,
as applicable, and, to the Company’s Knowledge, each other party thereto, in the case of each of the foregoing, other than as would
not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. As of the date of this Agreement,
neither the Company nor any of its Non-GCI Subsidiaries has received written notice that it has breached, violated or defaulted under
any Company Material Contract.
Section 3.18 Anti-Takeover
Statutes. Assuming the accuracy of the representations in Section 4.15, the Company has taken all action necessary to
exempt the Transaction Documents and the transactions contemplated hereby and thereby from any antitakeover or similar statute or regulation,
and accordingly, no restrictions on business combinations in any “fair price,” “business combination,” “control
share acquisition,” “moratorium,” or other similar anti-takeover statute or regulation enacted in any jurisdiction
applies to the Transaction Documents or any of the transactions contemplated hereby and thereby. No other “anti-takeover”
stockholders rights plan, “poison pill,” anti-takeover provision or other similar device is in effect to which the Company
is a party or is otherwise bound, and, at the Effective Time, none of the foregoing will be applicable to the Company, the Merger, the
Upstream Merger, the Transaction Documents or any of the transactions contemplated hereby or thereby. In accordance with Section 262
of the DGCL, no appraisal or dissenters’ rights will be available to the holders of Company Common Stock (other than holders of
the Company Series B Common Stock) or Company Preferred Stock in connection with the Merger.
Section 3.19 Ownership
in Parent. As of the date of this Agreement, the Company holds directly or indirectly the Company Owned Parent Shares, including
sole legal and beneficial ownership thereto; provided that, for the avoidance of doubt, this representation is not being made
with respect to any shares of Parent Class A Common Stock owned by the executive officers and/or directors of the Company in their
respective individual capacities or through entities for estate planning purposes. All of the Company Owned Parent Shares (as reduced
by any share repurchases by Parent) are owned free and clear of any and all Encumbrances other than any Permitted Encumbrances. Except
for the Company Owned Parent Shares, the Company does not beneficially own any Parent Common Stock or Parent Preferred Stock or any options
or other rights to purchase or receive Parent Common Stock or Parent Preferred Stock.
Section 3.20 Brokers
and Other Advisors. Except for fees payable to JPMorgan Chase & Co., no Person is entitled to any broker’s, finder’s,
financial advisor’s or other similar fee or commission payable by the Company or its Subsidiaries in connection with the Transaction
Documents or the transactions contemplated hereby and thereby based upon arrangements made by or on behalf of the Company or any of its
Affiliates.
Section 3.21 Opinion
of Financial Advisor. J.P. Morgan Securities LLC, the Company’s financial advisor, has delivered to the Company Board its opinion
(to be confirmed in writing), to the effect that, as of the date of such opinion and based on and subject to the matters set forth therein,
including the various assumptions made, procedures followed, matters considered, and qualifications and limitations set forth therein,
the Common Exchange Ratio in the Merger is fair, from a financial point of view, to the holders of Company Common Stock (other than (a) Parent
and its Subsidiaries, (b) the Malone Group, the Maffei Group and their respective Affiliates, (c) A/N and its Affiliates, (d) the
members of the Parent Board and the Parent Section 16 Officers, (e) the members of the Company Board and the Company Section 16
Officers and (f) the immediate family members (as defined in Item 404 of Regulation S-K) of any of the foregoing). A true, correct
and complete written copy of such opinion will be delivered promptly after the date of this Agreement to Parent for informational purposes
only. Parent, on behalf of itself and its officers, directors and Affiliates, agrees and acknowledges that such written opinion is being
furnished to Parent solely for informational purposes and none of Parent, its officers, directors and Affiliates may rely on such written
opinion for any purpose.
Section 3.22 Disclosure
Documents. The information with respect to the Company or any of its Subsidiaries that the Company supplied or will supply to Parent
specifically for inclusion or incorporation by reference in (a) the Registration Statement, or any amendment or supplement thereto
will not, at the time the Registration Statement is filed with the SEC and at the time it is declared effective by the SEC (or, with
respect to any post-effective amendment or supplement, at the time such post-effective amendment or supplement is filed with the SEC
and at the time it becomes effective) or (b) the Joint Proxy Statement will not, on the date that the Joint Proxy Statement is first
mailed to the Company Stockholders or at the time of the Company Stockholders Meeting, contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The portions of the Registration Statement and the Joint Proxy Statement supplied
by the Company will comply as to form in all material respects with the provisions of the Securities Act and the Exchange Act and the
rules and regulations thereunder. The representations and warranties contained in this Section 3.22 do not apply to
statements or omissions included or incorporated by reference in the Registration Statement or the Joint Proxy Statement based upon information
supplied to the Company by Parent, Merger Sub or Merger LLC or any of their respective Representatives for use or incorporation by reference
therein.
Section 3.23 Affiliate
Transactions.
(a) Except
as set forth in Section 3.23(a) of the Company Disclosure Letter, no officer, director, Affiliate (including any of
the Persons referred to in clauses (i) through (vii) of the definition of “Affiliate”) or associate of the Company,
or officer, director or associate of any Affiliate (including any of the Persons referred to in clauses (i) through (vii) of
the definition of “Affiliate”) of the Company, or, to the Knowledge of the Company, any individual in such officer’s
or director’s immediate family (a) is or was a party to any Contract entered into since the Lookback Date with the Company
or any of its Non-GCI Subsidiaries (other than arising under or in connection with employment-related Contracts, Company Plans, confidentiality
Contracts or Contracts solely between or among the Company and/or its Wholly Owned Subsidiaries (other than GCI Spinco, GCI and their
respective Subsidiaries)), including any Contract that would be required to be disclosed pursuant to Item 404 of Regulation S-K of the
Exchange Act (each such Contract, an “Affiliate Contract”), (b) is indebted in any respect to the Company (other
than advances to employees in the ordinary course of business), or (c) has any material ownership interest (other than indirectly
as an equityholder of the Company) in (i) any material property (tangible or intangible) used by the Company or any of its Non-GCI
Subsidiaries or (ii) any material supplier, customer, lessor, lessee or competitor of the Company or any of its Non-GCI Subsidiaries.
(b) Section 3.23(b) of
the Company Disclosure Letter sets forth all transactions between the Company or any of its Non-GCI Subsidiaries, on the one hand, and
any director, officer, Affiliate (including any of the Persons referred to in clauses (i) through (vii) of the definition of
“Affiliate”) or associate of the Company or any of its Non-GCI Subsidiaries, on the other hand, in excess of $1,000,000 that
was entered into since the Lookback Date, other than any transaction arising under or in connection with employment-related Contracts,
Company Plans, confidentiality Contracts or Contracts solely between or among the Company and/or its Wholly Owned Subsidiaries (other
than GCI Spinco, GCI and their respective Subsidiaries).
Article IV
REPRESENTATIONS
AND WARRANTIES OF PARENT,
MERGER SUB AND MERGER LLC
Subject to Section 1.3(d) and
except as set forth in (a) the Parent SEC Documents filed and publicly available at least two (2) Business Days prior to the
date of this Agreement (other than any disclosure set forth under “Risk Factors”, or any “forward-looking statements”
section or that are similarly cautionary, non-specific or predictive in nature or “Management’s Discussion and Analysis of
Financial Condition and Results of Operation”, or under the heading “Regulatory Matters,” “Competition”
and “Legal Proceedings” that is predictive or forward-looking) (provided, that in no event will any disclosure in
the Parent SEC Documents qualify or limit the representations and warranties in Sections 4.1 (Organization; Standing and Power),
4.2 (Capitalization), 4.3 (Authorization), 4.11 (Tax Matters), 4.12 (Brokers and Other Advisors), 4.14
(Opinion of Financial Advisor), 4.15 (Ownership of Company Common Stock) or 4.17 (Anti-Takeover Statutes) of this Agreement)
or (b) the corresponding section of the Parent Disclosure Letter (it being agreed that disclosure of any item in any section of
the Parent Disclosure Letter shall be deemed disclosed with respect to any other section but only to the extent the relevance of a disclosure
or statement therein to a section of this Article IV is reasonably apparent on its face without independent inquiry and that
the mere inclusion of an item in the Parent Disclosure Letter as an exception to a representation or warranty (or covenant, as applicable)
shall not be deemed an admission that such item represents a material exception or material fact, event or circumstance or that such
item has had or would, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect), Parent, Merger
Sub and Merger LLC represent and warrant to the Company as follows:
Section 4.1 Organization;
Standing and Power. (a) Parent is a corporation duly incorporated, validly existing and in good standing under the Laws of the
State of Delaware, (b) Merger Sub is a corporation duly incorporated, validly existing and in good standing under the Laws of the
State of Delaware, (c) Merger LLC is a limited liability company duly formed, validly existing and in good standing under the Laws
of the State of Delaware, (d) each of Parent, Merger Sub and Merger LLC has all requisite corporate or other power and authority
to own, lease and operate its properties and to carry on its business as currently conducted and (e) each of Parent, Merger Sub
and Merger LLC is duly qualified or licensed to do business as a foreign corporation and foreign entity, respectively, and is in good
standing (with respect to jurisdictions which recognize such concept), in each jurisdiction where the character of the properties owned,
leased or operated by it or the nature of its activities makes such qualification or licensing necessary, except in the case of clauses
(d) and (e) as would not, individually or in the aggregate, reasonably be expected to have (x) a Parent Material
Adverse Effect or (y) a material adverse effect on the ability of Parent to consummate the transactions contemplated by the Transaction
Documents to which any of Parent, Merger Sub and Merger LLC is a party prior to the Drop Dead Date. Parent has made available to the
Company, prior to the date of this Agreement, a complete and correct copy of the Parent Governance Instruments and the organizational
documents of Merger Sub and Merger LLC, in each case, in effect as of the date of this Agreement.
Section 4.2 Capitalization.
(a) The
authorized capital stock of Parent consists of (i) nine hundred million (900,000,000) shares of Parent Class A Common Stock,
(ii) one thousand (1,000) shares of Parent Class B Common Stock, and (iii) two hundred fifty million (250,000,000) shares
of preferred stock, par value $0.001 per share, issuable in series. No other shares of capital stock of, or other equity or voting interests
in, Parent are authorized.
(b) As
of the close of business on November 8, 2024, (i) 142,197,306 shares of Parent Class A Common Stock were issued and outstanding
(which figure includes 13,353 shares of Parent Restricted Stock issued and outstanding), (ii) one (1) share of Parent Class B
Common Stock was issued and outstanding, (iii) no shares of preferred stock of Parent were issued and outstanding, (iv) 3,703,162
shares of Parent Common Stock were held in treasury by Parent or owned by its Subsidiaries, (v) a total of 10,165,345 shares of
Parent Class A Common Stock were available for future awards under the Parent Stock Plans, (vi) 2,962,007 shares of Parent
Class A Common Stock were reserved for issuance upon the vesting of outstanding Parent RSU Awards, (vii) 4,428,757 shares of
Parent Class A Common Stock were reserved for issuance upon the vesting of outstanding Parent PSU Awards (assuming the achievement
of applicable performance conditions at the maximum level of performance), (viii) 13,468,961 shares of Parent Class A Common
Stock were reserved for issuance upon the exercise of outstanding unexercised Parent Stock Options, and (ix) no other shares of
capital stock of, or other equity interests in, Parent were issued, reserved for issuance or outstanding. All of the outstanding shares
of capital stock of Parent have been duly authorized and validly issued, and are fully paid and non-assessable and were issued in compliance
with applicable securities Laws. Except as set forth in the Parent Governance Instruments, the Stockholders Agreement, the Letter Agreement
and the Stockholders and Letter Agreement Amendment, there are no preemptive or similar rights granted by Parent to any holders of any
class of securities of Parent. From the close of business on November 8, 2024 through the date of this Agreement, there have been
no issuances, repurchases or redemptions by Parent of shares of Parent Capital Stock or other equity interests in Parent or issuances
by Parent of options, warrants, convertible or exchangeable securities, stock-based performance units or other rights to acquire shares
of Parent Capital Stock or other equity interests in Parent or other rights that give the holder thereof any economic or voting interest
of a nature accruing to the holders of shares of Parent Capital Stock or other equity interests in Parent, other than the issuance of
Parent Common Stock upon the exercise of Parent Stock Options or the settlement of Parent RSU Awards and Parent PSU Awards, or the withholding
of shares for the satisfaction of applicable tax withholding requirements related to Parent Restricted Stock, in each case outstanding
as of the close of business on November 8, 2024 and in accordance with the terms thereof.
(c) Parent
does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or which are
convertible into or exercisable for securities having the right to vote) with Parent Stockholders on any matter (“Voting Parent
Debt”).
(d) Except
as set forth in Section 4.2(b) or pursuant to any Transaction Document, other than Parent Equity Awards, there are not,
as of the date of this Agreement, any options, warrants, rights, convertible or exchangeable securities, “phantom” stock
rights, stock appreciation rights, restricted stock units, stock-based performance units, commitments, Contracts, arrangements or undertakings
of any kind to which Parent is a party or by which Parent is bound (i) obligating Parent to issue, deliver or sell or cause to be
issued, delivered or sold, additional shares of capital stock of, or other equity interests in, or any security convertible into or exercisable
for or exchangeable into any capital stock of, or other equity interest in, Parent or any Voting Parent Debt, (ii) obligating Parent
to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, Contract, arrangement or undertaking
or (iii) that give any Person the right to receive any economic benefit or right similar to or derived from the economic benefits
and rights accruing to holders of capital stock of, or other equity interests in, Parent. As of the date of this Agreement, except pursuant
to any Transaction Document, there are no outstanding contractual obligations of Parent to repurchase, redeem or otherwise acquire any
shares of capital stock of Parent. Other than the Parent Governance Instruments, the Stockholders Agreement, the Letter Agreement and
the Stockholders and Letter Agreement Amendment, there are no proxies, voting trusts or other agreements or understandings to which Parent
is a party or is bound with respect to the voting of the capital stock of, or other equity interests in, Parent. Other than the Parent
Governance Instruments, the Stockholders Agreement, the Letter Agreement and the Stockholders and Letter Agreement Amendment, there are
no agreements pursuant to which Parent or any of its Subsidiaries is a party or is bound pursuant to which any Person is entitled to
elect, designate or nominate any director of Parent or any of its Subsidiaries.
(e) The
authorized capital stock of Merger Sub consists solely of one thousand (1,000) shares of Merger Sub common stock. As of the date of this
Agreement, there are one thousand (1,000) shares of Merger Sub common stock issued and outstanding, all of which are held directly by
Merger LLC. All of the outstanding shares of Merger Sub common stock have been duly authorized and validly issued and are fully paid
and non-assessable and free of preemptive rights. The authorized equity interests of Merger LLC consist solely of limited liability company
interests, all of which are held directly by Parent. All of the outstanding limited liability company interests of Merger LLC have been
duly authorized and validly issued.
(f) The
shares of Parent Class A Common Stock and Parent Preferred Stock to be issued as part of the Merger Consideration and pursuant to
Section 2.8 have been (or, in the case of Parent Preferred Stock, will be upon filing of the Certificate of Designations)
duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will have been validly issued and will
be fully paid and non-assessable and the issuance thereof will not be subject to any preemptive or other similar right.
(g) Parent
is not party to any “poison pill” rights plan or similar plan or agreement relating to any shares of Parent Capital Stock
or other equity interests of Parent.
Section 4.3 Authorization.
(a) Each
of Parent, Merger Sub and Merger LLC has all requisite corporate, limited liability company or other power and authority to execute and
deliver the Transaction Documents to which it is a party, to perform its obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby, subject, in the case of the Stock Issuance and the Merger, to the receipt of the Parent Stockholder
Approval and the Parent Disinterested Stockholder Approval and the effectiveness of the Merger Sub Stockholder Consent. Assuming the
accuracy of the representations in Section 3.19, the execution, delivery and performance of the Transaction Documents to
which any of Parent, Merger Sub and Merger LLC is a party, and the consummation by Parent, Merger Sub and Merger LLC of the transactions
contemplated hereby and thereby have been duly and validly authorized by all necessary corporate or other action on the part of Parent,
Merger Sub and Merger LLC, and no other corporate or other proceedings on the part of Parent, Merger Sub and Merger LLC are necessary
to authorize the execution and delivery of the Transaction Documents to which any of Parent, Merger Sub and Merger LLC is a party or
the consummation of the transactions contemplated hereby and thereby, other than, with respect to the Stock Issuance and the Merger:
(i) the Parent Requisite Approvals and (ii) the effectiveness of the Merger Sub Stockholder Consent. Merger LLC has taken all
action as is necessary or advisable to authorize the Upstream Merger in accordance with Merger LLC’s governing documents and Section 267
of the DGCL and Section 18-209(i) of the DLLCA, and such authorization is and shall be the only limited liability company authorization
of Merger LLC necessary to authorize the Upstream Merger. This Agreement has been duly and validly executed and delivered by Parent,
Merger Sub and Merger LLC and, assuming the due execution and delivery by the Company, constitutes the valid and binding obligation of
Parent, Merger Sub and Merger LLC, enforceable against Parent, Merger Sub and Merger LLC in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, rehabilitation, liquidation, preferential transfer, moratorium and similar
Laws now or hereafter affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding at equity or law).
(b) The
Parent Special Committee has unanimously (i) determined that the Transaction Documents to which Parent is a party and the transactions
contemplated hereby and thereby, including the Certificate of Designations and the Merger, are advisable and fair to, and in the best
interests of, Parent and the Parent Stockholders (including the Parent Disinterested Stockholders) and (ii) recommended that the
Parent Board approve (including for purposes of Section 203 of the DGCL) and declare advisable the Transaction Documents to which
Parent is a party and the transactions contemplated hereby and thereby, including the Certificate of Designations and the Merger, and
direct that the Stock Issuance and this Agreement and the transactions contemplated hereby, including the Merger, be submitted to the
Parent Stockholders for approval and resolve to recommend that the Parent Stockholders approve the Stock Issuance and this Agreement
and the transactions contemplated hereby, including the Merger (such recommendation, the “Parent Special Committee Recommendation”).
As of the date of this Agreement, the foregoing determinations and resolutions have not been rescinded, modified or withdrawn.
(c) The
Parent Board, including at least a majority of (a) the Unaffiliated Directors (as defined in the Parent Charter and the Stockholders
Agreement) and (b) the directors designated by A/N pursuant to the Stockholders Agreement, upon the unanimous recommendation of
the Parent Special Committee, has unanimously (i) determined that the Transaction Documents to which Parent is a party and the transactions
contemplated hereby and thereby, including the Certificate of Designations and the Merger and including the consideration to be paid
in connection therewith, are advisable and fair to, and in the best interests of, Parent and the Parent Stockholders (including the Parent
Disinterested Stockholders), (ii) approved (including for purposes of Section 203 of the DGCL) and declared advisable the Transaction
Documents to which Parent is a party and the transactions contemplated hereby and thereby, including the Certificate of Designations
and the Merger, (iii) directed that the Stock Issuance and this Agreement and the transactions contemplated hereby, including the
Merger, be submitted to the Parent Stockholders for approval, and (iv) resolved to recommend that the Parent Stockholders approve
the Stock Issuance and this Agreement and the transactions contemplated hereby (such recommendation, the “Parent Board Recommendation”).
As of the date of this Agreement, the foregoing determinations and resolutions have not been rescinded, modified or withdrawn.
(d) The
Merger Sub Board has unanimously (i) determined that this Agreement and the transactions contemplated hereby, including the Merger,
are advisable and fair to, and in the best interests of, Merger Sub and its sole stockholder, (ii) approved and declared advisable
this Agreement and the transactions contemplated hereby, including the Merger, (iii) recommended that the sole stockholder of Merger
Sub approve the adoption of this Agreement and (iv) directed that this Agreement be submitted to the sole stockholder of Merger
Sub for adoption. As of the date of this Agreement, the foregoing determinations and resolutions have not been rescinded, modified or
withdrawn. Prior to the execution of this Agreement, Merger LLC, as sole stockholder of Merger Sub, duly executed and delivered to Merger
Sub a written consent, such consent to be effective immediately following the execution and delivery of this Agreement, approving this
Agreement and the transactions contemplated hereby, including the Merger, pursuant to Section 228 of the DGCL (the “Merger
Sub Stockholder Consent”). Parent has delivered to the Company a copy of the Merger Sub Stockholder Consent, which is currently
in effect and has not been rescinded, modified or withdrawn.
(e) The
sole member of Merger LLC has (i) determined that this Agreement and the transactions contemplated hereby are advisable and fair
to, and in the best interests of, Merger LLC and its sole member, (ii) approved and declared advisable this Agreement and the transactions
contemplated hereby and (iii) taken all action as is necessary or advisable to cause Merger LLC to authorize the Upstream Merger
in accordance with Merger LLC’s governing documents, Section 267 of the DGCL and Section 18-209 of the DLLCA. As of the
date of this Agreement, the foregoing determinations and resolutions have not been rescinded, modified or withdrawn.
(f) Assuming
the accuracy of the representations in Section 3.19, the only votes of the holders of any class or series of Parent Capital
Stock necessary to adopt the Transaction Documents and to consummate the transactions contemplated hereby and thereby are: (i) the
approval of the Stock Issuance by the affirmative vote of a majority of the votes cast by the holders of Parent Capital Stock at the
Parent Stockholders Meeting (the “Parent Stockholder Approval”), and (ii) the approval of this Agreement and
the transactions contemplated hereby, including the Merger, by the affirmative vote of holders of a majority of the aggregate voting
power of the outstanding shares of Parent Capital Stock entitled to vote thereon (other than any outstanding shares of Parent Capital
Stock beneficially owned, directly or indirectly, by (A) the Company and its Affiliates, (B) the Malone Group, the Maffei Group
and their respective Affiliates, (C) A/N and its Affiliates, (D) the members of the Company Board and Company Section 16
Officers, (E) the members of the Parent Board and the Parent Section 16 Officers or (F) the immediate family members (as
defined in Item 404 of Regulation S-K) of any of the foregoing), voting together as a single class (the “Parent Disinterested
Stockholder Approval” and the holders of Parent Capital Stock entitled to vote on the Parent Disinterested Stockholder Approval,
the “Parent Disinterested Stockholders”).
Section 4.4 Consents
and Approvals; No Violations.
(a) The
execution, delivery and performance by Parent, Merger Sub and Merger LLC of the Transaction Documents to which it is a party and the
consummation by Parent, Merger Sub and Merger LLC of the transactions contemplated hereby and thereby do not and will not require any
filing or registration with, notification to, or authorization, permit, license, declaration, Order, expiration of any applicable waiting
period, consent or approval of any Governmental Authority by Parent, Merger Sub and Merger LLC other than (i) as may be required
by Competition Laws, including the HSR Act, (ii) the declaration of effectiveness under the Securities Act of the Registration Statement,
(iii) the filing with the SEC of (A) the Joint Proxy Statement in definitive form and (B) such reports and other filings
under the Exchange Act as may be required in connection with the Transaction Documents and the transactions contemplated hereby and thereby,
(iv) such clearances, consents, approvals, Orders, licenses, authorizations, registrations, declarations, permits, filings and notifications
as may be required under applicable U.S. federal and state or foreign securities Laws or the rules and regulations of Nasdaq, (v) the
filing of the Certificate of Merger, the Upstream Merger Certificate, the Certificate of Designations or other documents as required
by the DGCL and the DLLCA, (vi) Tax filings or (vii) such other actions or filings the absence of which would not, individually
or in the aggregate, reasonably be expected to have (x) a Parent Material Adverse Effect or (y) a material adverse effect on
the ability of Parent to consummate the transactions contemplated by the Transaction Documents to which any of Parent, Merger Sub and
Merger LLC is a party prior to the Drop Dead Date.
(b) The
execution, delivery and, subject to the receipt of the Parent Stockholder Approval and the Parent Disinterested Stockholder Approval,
performance by Parent, Merger Sub and Merger LLC of the Transaction Documents to which it is a party, and the consummation by Parent,
Merger Sub or Merger LLC of the transactions contemplated hereby and thereby, do not and will not (i) conflict with or violate any
provision of the Parent Governance Instruments or the certificate of incorporation or bylaws of Merger Sub or the certificate of formation
or limited liability company agreement of Merger LLC, (ii) assuming that all consents, approvals, authorizations and other actions
described in Section 4.4(a) have been obtained and all filings and other obligations described in Section 4.4(a) have
been made (and any applicable waiting periods, including any applicable HSR Act waiting periods, and any agreements not to close, shall
have expired or been terminated), and assuming the accuracy of the representations in Section 3.4, conflict with or violate
any Law applicable to Parent, Merger Sub or Merger LLC or by which any property or asset of Parent, Merger Sub or Merger LLC is bound,
(iii) require any consent or notice, or result in any violation or breach of, or conflict with, or constitute (with or without notice
or lapse of time or both) a default (or give rise to any right of purchase, termination, amendment, acceleration or cancellation) under,
result in the loss of any benefit under, or result in the triggering of any payments or requirements to purchase or redeem any Indebtedness
or capital stock pursuant to, any of the terms, conditions or provisions of any Contract to which Parent or any of its Subsidiaries is
a party or by which any property or asset of Parent or any of its Subsidiaries is bound or (iv) result in any Encumbrance (except
for Permitted Encumbrances) on any property or asset of Parent, Merger Sub, or Merger LLC, except, with respect to clauses (ii),
(iii) and (iv) of this Section 4.4(b) as would not, individually or in the aggregate, reasonably
be expected to have (x) a Parent Material Adverse Effect or (y) a material adverse effect on the ability of Parent to consummate
the transactions contemplated by the Transaction Documents to which any of Parent, Merger Sub and Merger LLC is a party prior to the
Drop Dead Date.
Section 4.5 SEC
Reports and Financial Statements.
(a) Parent
has timely filed with, or furnished to, as applicable, the SEC all registration statements, prospectuses, reports, forms, statements,
schedules, certifications and other documents required to be filed or furnished by Parent since the Lookback Date (together with all
exhibits and schedules thereto and all information incorporated therein by reference, the “Parent SEC Documents”).
As of their respective dates, or if amended, as of the date of the last such amendment, the Parent SEC Documents (i) were prepared
in accordance and complied in all material respects with the requirements of the Sarbanes Act, the Securities Act and the Exchange Act
(to the extent then applicable) and (ii) did not 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 therein, in light of the circumstances under which they were
made, not misleading.
(b) Each
of the consolidated financial statements (including, in each case, any related notes thereto) contained in or incorporated by reference
in the Parent SEC Documents (the “Parent Financial Statements”), (i) complied, as of its respective date of filing
with the SEC, in all material respects with the published rules and regulations of the SEC with respect thereto, (ii) was prepared
in accordance with Regulation S-X under the Exchange Act and with GAAP applied on a consistent basis during the periods indicated (except
as may be indicated in the notes thereto or, in the case of unaudited interim financial statements, as may be permitted by the SEC on
Form 10-Q under the Exchange Act) and (iii) fairly presented in all material respects the consolidated financial position of
Parent and its Subsidiaries as of the respective dates thereof and the consolidated results of Parent and its Subsidiaries’ operations
and cash flows for the periods indicated (except that the unaudited interim financial statements were or will be subject to normal and
recurring year-end and quarter-end adjustments that are not in the aggregate material).
(c) Since
the Lookback Date, Parent has maintained disclosure controls and procedures and internal control over financial reporting (as such terms
are defined in Rules 13a-15 and 15d-15 under the Exchange Act) substantially as required by Rules 13a-15 and 15d-15 under the
Exchange Act. Parent’s disclosure controls and procedures are reasonably designed to ensure that all information (both financial
and non-financial) required to be disclosed by Parent in the reports that it files or furnishes under the Exchange Act is recorded, processed,
summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such information is accumulated
and communicated to Parent’s management as appropriate to allow timely decisions regarding required disclosure and to make the
certifications required pursuant to Sections 302 and 906 of the Sarbanes Act. Parent’s management has completed an assessment of
the effectiveness of Parent’s internal controls and procedures and, to the extent required by applicable Law, presented in any
applicable Parent SEC Document, or any amendment thereto, its conclusions about the effectiveness of the internal control structures
and procedures as of the end of the period covered by such report or amendment based on such evaluation. In connection with Parent’s
management’s most recently completed assessment of Parent’s internal controls over financial reporting, (i) Parent’s
principal executive officer and its principal financial officer have disclosed to Parent’s auditors and audit committee any significant
deficiencies and material weaknesses in the design or operation of internal controls over financial reporting and (ii) to Parent’s
Knowledge, there is no fraud, whether or not material, that involves management or other employees who have a significant role in Parent’s
internal control over financial reporting. To Parent’s Knowledge, no executive officer or director of Parent has received or otherwise
had or obtained knowledge of, and no auditor, accountant, employee or Representative of Parent has provided written notice to Parent
or any executive officer or director of, any substantive complaint or allegation that Parent or any of its Subsidiaries has engaged in
improper accounting practices.
(d) As
of the date of this Agreement, there are no outstanding or unresolved comments in any comment letters from the Staff of the SEC relating
to the Parent SEC Documents and received by Parent prior to the date of this Agreement. None of the Parent SEC Documents filed on or
prior to the date of this Agreement is, to Parent’s Knowledge, subject to ongoing SEC review or investigation.
(e) Since
the Lookback Date, except as disclosed in Parent’s definitive proxy statements included in the Parent SEC Documents and for the
Transaction Documents, no event has occurred and no transactions or series of transactions, agreements, arrangements, understandings
or relationship or relationships to which Parent or any of its Subsidiaries was or is to be a party exists that would be required to
be reported by Parent pursuant to Item 404 of Regulation S-K.
(f) Since
the Lookback Date, Parent has complied in all material respects with the applicable listing and corporate governance rules and regulations
of Nasdaq.
Section 4.6 No
Undisclosed Liabilities. Except as reflected or specifically reserved against in the balance sheet of Parent dated September 30,
2024 included in the Form 10-Q filed by Parent with the SEC on November 1, 2024 (or described in the notes thereto), neither
Parent nor any of its Subsidiaries has any Liabilities except (a) Liabilities incurred since September 30, 2024 in the ordinary
course consistent with past practice, (b) Liabilities incurred in connection with the Transaction Documents or the transactions
contemplated hereby and thereby or (c) Liabilities that would not, individually or in the aggregate, reasonably be expected to have
a Parent Material Adverse Effect; provided, that in no event shall any Liability of the Portfolio Company or any of its Subsidiaries
be deemed a Liability of Parent or any of its Subsidiaries for purposes of this Section 4.6. Neither Parent nor any of its
Subsidiaries is a party to, or has any legally binding commitment to become a party to, any joint venture, off-balance sheet partnership
or any similar Contract or legally binding arrangement (including any Contract or legally binding arrangement relating to any transaction
or relationship between or among Parent and any of its Subsidiaries, on the one hand, and any unconsolidated Affiliate, including any
structured finance, special purpose or limited purpose entity or Person, on the other hand, or any material “off-balance sheet
arrangement” (as defined in Item 303(a) of Regulation S-K of the Exchange Act)), where the result, purpose or intended effect
of such Contract or legally binding arrangement is to avoid disclosure of any material transaction involving, or material Liabilities
of, Parent or any of its Subsidiaries in the Parent Financial Statements or Parent SEC Documents.
Section 4.7 Absence
of Certain Changes. Since December 31, 2023, there have been no changes, effects, events, occurrences, state of facts or developments
that have had or would, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect.
Section 4.8 Litigation.
There are no Actions pending or, to Parent’s Knowledge, threatened, against Parent or any of its Subsidiaries (including Merger
Sub and Merger LLC) or any of its or their respective properties, or relating to the Transaction Documents and the transactions contemplated
hereby and thereby that would, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect. As
of the date of this Agreement, neither Parent nor any of its Subsidiaries (including Merger Sub and Merger LLC) (or any of its or their
respective properties) is subject to or bound by any material Order. Parent and each of its Subsidiaries (including Merger Sub and Merger
LLC), as applicable, have complied with, and are now in compliance with, all Orders to which such Persons are a party or bound, except
as would not, individually or in the aggregate, reasonably be expected to have (x) a Parent Material Adverse Effect or (y) a
material adverse effect on the ability of Parent to consummate the transactions contemplated by the Transaction Documents to which any
of Parent, Merger Sub and Merger LLC is a party prior to the Drop Dead Date.
Section 4.9 Compliance
with Applicable Laws.
(a) Parent
and each of its Subsidiaries have, since January 1, 2020, complied, and are in compliance, in all material respects, with all applicable
Laws. Since January 1, 2020, (i) to Parent’s Knowledge, no material unresolved investigation or review by any Governmental
Authority with respect to Parent or any of its Subsidiaries is pending or threatened in writing, and (ii) to Parent’s Knowledge,
no Governmental Authority has indicated in writing an intention to conduct any such investigation or review.
(b) Parent
and its Subsidiaries (i) hold all material Governmental Permits necessary for the lawful conduct of their respective businesses
or ownership of their respective properties, and all such Governmental Permits are in full force and effect and (ii) are in material
compliance with all terms and conditions of such Governmental Permits and, to Parent’s Knowledge, no such Governmental Permits
are subject to any actual or threatened revocation, withdrawal, suspension, cancellation, termination or modification action by the issuing
Governmental Authority.
(c) As
of the date of this Agreement, Parent is not required to register as an “investment company” under the Investment Company
Act of 1940.
Section 4.10 Tax.
Except as would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect:
(a) (i) all
Tax Returns required to be filed with any Governmental Authority by or on behalf of Parent or any of its Subsidiaries have been timely
filed when due (taking into account any extension of time within which to file); (ii) all such Tax Returns are true, accurate and
complete and have been prepared in compliance with all applicable Laws; (iii) all Taxes due and payable by Parent or any of its
Subsidiaries (including any Taxes that are required to be collected, deducted or withheld in connection with any amounts paid or owing
to, or received or owing from, any employee, creditor, independent contractor or other Third Party) have been timely paid (or collected
or withheld and remitted) to the appropriate Governmental Authority, except for Taxes or Tax matters being contested in good faith and
for which adequate reserves have been established in accordance with GAAP in the Parent SEC Documents filed prior to the date of this
Agreement; (iv) since January 1, 2018, no written claim has been made by any Governmental Authority in a jurisdiction where
Parent or any of its Subsidiaries does not file a Tax Return of a particular type that Parent or any of its Subsidiaries is or may be
subject to Tax, or required to file Tax Returns, of such type in that jurisdiction, other than any such claims that have been fully resolved;
and (v) there are no Encumbrances on any of the assets of Parent or any of its Subsidiaries that arose in connection with any failure
(or alleged failure) to pay any Tax (except for Permitted Encumbrances);
(b) each
of Parent and its Subsidiaries has complied with all applicable Laws relating to the withholding of Taxes and has, within the time and
the manner prescribed by applicable Law, withheld from and paid over to the appropriate Governmental Authorities all amounts required
to be so withheld and paid over under all applicable Laws;
(c) no
outstanding written claim has been received by, and no audit, action, or proceeding is in progress or threatened in writing, against
or with respect to Parent or any of its Subsidiaries in respect of any Tax, and all deficiencies, assessments or proposed adjustments
asserted against Parent or any of its Subsidiaries by any Governmental Authority have been paid or fully and finally settled;
(d) neither
Parent nor any of its Subsidiaries (i) has any Liability for the Taxes of any Person (other than Parent or any of its Subsidiaries)
under Section 1.1502-6 of the Treasury Regulations (or any similar provision of state, local or foreign Tax Law), as a transferee
or successor, or otherwise by operation of Law, (ii) is a party to any Tax sharing, allocation or indemnification agreement or arrangement
(other than (x) any agreement or arrangement solely among Parent or any of its Subsidiaries, or (y) commercial agreements or
arrangements entered into in the ordinary course of business the primary subject matter of which does not relate to Taxes), (iii) has
received or applied for a Tax ruling or entered into a closing agreement pursuant to Section 7121 of the Code (or any similar provision
of state, local or foreign law) or (iv) is, or since January 1, 2018 has been, a member of any affiliated, combined, consolidated,
unitary or similar group filing a consolidated, combined, unitary or similar income Tax Return (other than a group the common parent
of which is Parent or any of its Subsidiaries);
(e) no
waiver or extension of any statute of limitations in respect of any Taxes or any extension of time with respect to any Tax assessment
or deficiency is in effect for Parent or any of its Subsidiaries (other than extensions of time to file Tax Returns obtained automatically
in the ordinary course of business);
(f) neither
Parent nor any of its Subsidiaries has participated in a “listed transaction” within the meaning of Section 1.6011-4(b)(2) of
the Treasury Regulations; and
(g) during
the five-year period ending on the date of this Agreement, neither Parent nor any of its Subsidiaries has been either a “distributing
corporation” or a “controlled corporation” in a distribution of stock qualifying or intended to qualify for tax-free
treatment under Section 355(a) of the Code.
Section 4.11 Tax
Matters.
(a) All
of the issued and outstanding shares of common stock of Merger Sub are owned directly by Merger LLC, free and clear of any Encumbrances.
(b) For
U.S. federal tax purposes, Merger LLC is disregarded as an entity separate from Parent.
(c) Neither
Parent nor any of its Subsidiaries knows of any fact, agreement, plan or other circumstance that would reasonably be expected to (i) prevent
or preclude the Combination from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code,
(ii) result in any gain or loss being recognized by holders of Company Common Stock pursuant to the Combination (other than with
respect to the receipt of GCI Spinco stock, cash received in lieu of fractional shares of GCI Spinco stock, cash received in lieu of
Fractional Shares, or cash paid in respect of Dissenting Shares) under Sections 354 and 356 of the Code, (iii) result in any gain
or loss (other than, for the avoidance of doubt, gain or loss recognized on the receipt of property other than Parent Capital Stock)
being recognized by the Company on the deemed exchange of its assets for Parent Capital Stock in the Combination under Sections 361(a) or
361(b) of the Code, or (iv) prevent or preclude Parent from making the Parent Tax Opinion Representations.
(d) Parent
is not aware of any fact, agreement, plan or other circumstance, and has not taken any action, which fact, agreement, plan, circumstance
or action would reasonably be expected to prevent or preclude Parent from delivering the Parent Tax Opinion Representation Letter immediately
prior to the Closing.
Section 4.12 Brokers
and Other Advisors. Except for fees payable to Centerview Partners LLC and Citigroup Global Markets Inc., no Person is entitled to
any broker’s, finder’s, financial advisor’s or other similar fee or commission payable by Parent or its Subsidiaries
(including Merger Sub and Merger LLC) in connection with the Transaction Documents or the transactions contemplated hereby and thereby
based upon arrangements made by or on behalf of Parent or any of its Subsidiaries (including Merger Sub and Merger LLC).
Section 4.13 Disclosure
Documents. The information with respect to Parent or any of its Subsidiaries (including Merger Sub and Merger LLC) that Parent supplied
or will supply to the Company specifically for inclusion or incorporation by reference in (a) the Registration Statement, or any
amendment or supplement thereto will not, at the time the Registration Statement is filed with the SEC and at the time it is declared
effective by the SEC (or, with respect to any post-effective amendment or supplement, at the time such post-effective amendment or supplement
is filed with the SEC and at the time it becomes effective) or (b) the Joint Proxy Statement will not, on the date that the Joint
Proxy Statement is first mailed to the Company Stockholders and the Parent Stockholders or at the time of the Company Stockholders Meeting
or the Parent Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
The portions of the Registration Statement and the Joint Proxy Statement supplied by Parent or any of its Subsidiaries (including Merger
Sub and Merger LLC) will comply as to form in all material respects with the provisions of the Securities Act and the Exchange Act and
the rules and regulations thereunder. The representations and warranties contained in this Section 4.13 do not apply
to statements or omissions included or incorporated by reference in the Registration Statement or the Joint Proxy Statement based upon
information supplied to Parent, Merger Sub or Merger LLC by the Company, its Subsidiaries or any of their respective Representatives
for use or incorporation by reference therein.
Section 4.14 Opinion
of Financial Advisors. The Parent Special Committee has received the opinion of Centerview Partners LLC, financial advisor to the
Parent Special Committee, to the effect that, as of the date of such opinion, and based upon and subject to the various assumptions made,
procedures followed, matters considered, and qualifications and limitations set forth therein, the Common Exchange Ratio provided for
pursuant to this Agreement is fair, from a financial point of view, to Parent. Parent has received the opinion of Citigroup Global Markets, Inc.,
financial advisor to Parent, to the effect that, as of the date of such opinion, and based upon and subject to the various assumptions
made, procedures followed, matters considered, and qualifications and limitations set forth therein, the Common Exchange Ratio provided
for pursuant to this Agreement is fair, from a financial point of view, to Parent. True, correct and complete written copies of such
opinions will be delivered promptly after the date of this Agreement to the Company for informational purposes only.
Section 4.15 Ownership
of Company Common Stock. As of the date of this Agreement and since the Lookback Date, Parent does not beneficially own, and has
not beneficially owned, any shares of Company Common Stock nor any Convertible Securities of the Company. As of the date of this Agreement,
none of Parent, Merger Sub or Merger LLC is an “interested stockholder” (as such term is defined in Section 203 of the
DGCL) of the Company to whom the restrictions on business combinations apply.
Section 4.16 Operations
of Merger Sub and Merger LLC. Each of Merger Sub and Merger LLC has been formed solely for the purpose of engaging in the Combination
and, from the date of their formation until the Effective Time, neither Merger Sub nor Merger LLC have or will have engaged in any activities
or incurred any Liabilities or obligations other than in connection with the Transaction Documents and the transactions contemplated
hereby and thereby.
Section 4.17 Anti-Takeover
Statutes. Assuming the accuracy of the representations in Section 3.19, Parent has taken all action necessary to exempt
the Transaction Documents and the transactions contemplated hereby and thereby from any antitakeover or similar statute or regulation,
and accordingly, no restrictions on business combinations in any “fair price,” “business combination,” “control
share acquisition,” “moratorium,” or other similar anti-takeover statute or regulation enacted in any jurisdiction
applies to the Transaction Documents, or any of the transactions contemplated hereby and thereby. No other “anti-takeover”
stockholders rights plan, “poison pill,” anti-takeover provision or other similar device is in effect to which Parent, Merger
Sub or Merger LLC is a party or is otherwise bound, and, at the Effective Time, none of the foregoing will be applicable to Parent, Merger
Sub, Merger LLC, the Merger, the Upstream Merger, the Transaction Documents or any of the transactions contemplated hereby or thereby.
Section 4.18 Sufficient
Funds. Assuming the accuracy of the representations and warranties set forth in Article III and the Company’s compliance
with its obligations in this Agreement, on the Closing Date, Parent and its Subsidiaries (including Merger LLC and Merger Sub) will,
collectively, have sufficient funds to permit Merger Sub to (a) pay all fees and expenses payable by the Company on the Closing
Date and (b) repay (i) the Company Margin Facility in full on the Closing Date and (ii) all Company Debt outstanding as
of the Closing Date that is either (x) subject to repayment pursuant to Section 5.22(a)(ii) or (y) required
to be repaid on the Closing date in accordance with its terms as a result of the consummation of the transactions contemplated by the
Transaction Documents (in each case up to amounts permitted to be outstanding thereunder in accordance with the terms hereof). Notwithstanding
anything to the contrary contained herein, Parent, Merger Sub and Merger LLC acknowledge and agree that their obligations to consummate
the transactions contemplated by the Transaction Documents are not contingent upon any of their ability to obtain any third party financing.
Article V
COVENANTS
Section 5.1 Conduct
of the Company’s Business Pending the Effective Time. From the date of this Agreement until the earlier of the Effective Time
and the termination of this Agreement in accordance with Section 7.1, except (i) as required by applicable Law, (ii) as
expressly required or expressly permitted by this Agreement, any other Transaction Document or as expressly required by any Company Governance
Instrument in effect as of the date of this Agreement, or any action or omission in connection with the GCI Divestiture in accordance
with this Agreement, including the evaluation, negotiation, discussion, execution, implementation, performance and/or consummation thereof
in accordance with this Agreement, (iii) as consented to in writing by the Parent Special Committee (which consent shall not be
unreasonably conditioned, withheld or delayed), (iv) as set forth in Section 5.1 of the Company Disclosure Letter or
(v) with respect to GCI Spinco, GCI, or any of their respective Subsidiaries, the GCI Business, the Portfolio Company or any of
its Subsidiaries, including in connection with any GCI Proceeding (provided, that, any action taken pursuant to this clause
(v) prior to the consummation of the GCI Divestiture shall not (x) result in any Liability (other than (I) any Tax
Liability resulting from or in connection with the GCI Divestiture expressly contemplated by the Separation Principles or (II) any
de minimis Liabilities or reasonable fees, cost and expenses of advisors and legal counsel) for which the Company and the Non-GCI
Subsidiaries, or following the Effective Time, Parent and its Subsidiaries, would or would reasonably be expected to be held directly
or indirectly liable or (y) (I) materially impair, hinder, impede or delay or (II) prohibit or prevent the consummation
of the Combination), the Company will, and will cause each of its Subsidiaries to, (A) conduct its business in the ordinary course
of business in all material respects and (B) use its commercially reasonable efforts to preserve intact its business organization
and goodwill and relationships with material customers, suppliers, licensors, licensees, distributors and other Third Parties. In addition
to and without limiting the generality of the foregoing, from the date of this Agreement until the earlier of the Effective Time and
the termination of this Agreement in accordance with Section 7.1, except (1) as required by applicable Law, (2) as
expressly required or expressly permitted by this Agreement, any other Transaction Document or as expressly required by any Company Governance
Instrument in effect as of the date of this Agreement, or any action or omission in connection with the GCI Divestiture in accordance
with this Agreement, including the evaluation, negotiation, discussion, execution, implementation, performance and/or consummation thereof
in accordance with this Agreement, (3) as consented to in writing by the Parent Special Committee (which consent shall not be unreasonably
conditioned, withheld or delayed), (4) as set forth in Section 5.1 of the Company Disclosure Letter or (5) with
respect to GCI Spinco, GCI, or any of their respective Subsidiaries, the GCI Business, the Portfolio Company or any of its Subsidiaries,
including in connection with any GCI Proceeding (provided, that any action taken pursuant to this clause (5) prior
to the consummation of the GCI Divestiture, shall not (I) result in any Liability (other than (x) any Tax Liability resulting
from or in connection with the GCI Divestiture expressly contemplated by the Separation Principles or (y) any de minimis
Liabilities or reasonable fees, cost and expenses of advisors and legal counsel) for which the Company and the Non-GCI Subsidiaries,
or following the Effective Time, Parent and its Subsidiaries, would or would reasonably be expected to be held directly or indirectly
liable or (II) (x) materially impair, hinder, impede or delay or (y) prohibit or prevent the consummation of the Combination):
(a) Governing
Documents. The Company shall not amend or propose to amend the Company Governance Instruments and shall cause each of its Subsidiaries
not to amend or propose to amend its respective certificate of incorporation or bylaws or similar organizational or governing documents,
other than in the case of any such Subsidiary, ministerial or administrative changes not adverse to the interests of Parent.
(b) No
Dissolution or Reorganizations. The Company shall not authorize or adopt, or publicly propose, a plan or agreement of complete or
partial liquidation or dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or
any of its Subsidiaries.
(c) Issuance
of Securities. The Company shall not, and shall cause each of its Subsidiaries not to: (i) authorize for issuance, issue or
deliver, sell or transfer or agree or commit to issue, deliver, sell or transfer any shares of capital stock of or other equity interest
in the Company or any of its Subsidiaries or Convertible Securities or other rights of any kind to acquire, any shares of capital stock
of or any other equity interest in the Company or any of its Subsidiaries, other than (A) the issuance of Company Common Stock pursuant
to the exercise, vesting or settlement of Company Equity Awards outstanding as of the date hereof and governed by the Company Stock Plans
and applicable award agreements, (B) issuances of capital stock or other equity interest from any Wholly Owned Subsidiary to the
Company or any other Wholly Owned Subsidiary, (C) the issuance of shares of Company Series A Common Stock upon the conversion
of any shares of Company Series B Common Stock pursuant to the Company Charter, (D) any issuances of any shares of Company
Capital Stock pursuant to the Exchange Agreement, or (E) the issuance of shares of Company Series C Common Stock upon the exchange
of any shares of Company Series B Common Stock for such shares of Company Series C Common Stock (or vice versa) pursuant to
the Exchange Agreement or the Exchange Side Letter; (ii) amend or modify any term or provision of any of its outstanding equity
securities; or (iii) except as contemplated by Section 2.8, accelerate or waive any restrictions pertaining to the vesting
of any Company Equity Awards, warrants or other rights of any kind to acquire any shares of capital stock or other equity interests in
the Company.
(d) No
Dispositions. The Company shall not, and shall cause each of its Subsidiaries not to, sell, pledge, dispose of, transfer, lease,
license, exercise, convert or encumber, or authorize the sale, pledge, disposition, transfer, lease, license, exercise, conversion or
Encumbrance of: (i) any tangible or intangible property or assets of the Company or any of its Subsidiaries material to the operation
of the businesses of the Company and its Subsidiaries, taken as a whole, except (A) pledges or other Encumbrances to the extent
they are a Permitted Encumbrance, (B) to the Company or a Wholly Owned Subsidiary of the Company, (C) pursuant to Contracts
in effect as of the date of this Agreement and set forth in the Company Disclosure Letter, (D) as permitted under the Stockholders
and Letter Agreement Amendment, (E) subject to Section 5.22(f), as may be required pursuant to the Margin Loan Agreement
and related documents (as in effect on the date of this Agreement or as amended or replaced in accordance with the terms hereof), and
(F) for any deemed sales or dispositions pursuant to Section 16 of the Exchange Act; or (ii) any Company Owned Parent
Shares, except (A) as permitted under the Stockholders and Letter Agreement Amendment, (B) subject to Section 5.22(f),
as may be required pursuant to the Margin Loan Agreement and related documents (as in effect on the date of this Agreement or as amended
or replaced in accordance with the terms hereof), (C) in connection with any business combination transaction, including any merger,
consolidation, share exchange, tender offer, exchange offer or other similar transaction, reorganization, recapitalization, dissolution,
liquidation, reverse stock-split or other similar transaction by or involving Parent or (D) for any deemed sales or dispositions
pursuant to Section 16 of the Exchange Act.
(e) No
Acquisitions. The Company shall not, and shall cause each of its Subsidiaries not to, acquire or agree to acquire, directly or indirectly,
by purchase, merger, consolidation or otherwise, equity or assets of another Person for a purchase price in excess of $25,000,000 in
the aggregate for all such acquisitions.
(f) Dividends;
Changes in Stock. The Company shall not, and shall cause each of its Subsidiaries not to, and shall not propose or commit to (and
shall cause each of its Subsidiaries not to propose or commit to): (i) declare, set aside, make or pay any dividend or make any
other distribution (whether payable in cash, stock, property or a combination thereof) with respect to any of the capital stock of the
Company (other than any dividend or distribution (A) by a Wholly Owned Subsidiary of the Company to the Company or another Wholly
Owned Subsidiary of the Company, (B) preferential dividends on the Company Preferred Stock as contemplated by the Company Charter
or (C) in connection with any GCI Divestiture) or, except with respect to the Voting Agreements, enter into any voting agreement
with respect to the capital stock of the Company (it being understood the solicitation and receipt of proxies in connection with obtaining
the Company Requisite Approvals shall not be restricted hereby); (ii) reclassify, combine, split or subdivide any capital stock
of the Company or issue or authorize the issuance of any other securities in substitution for shares of capital stock of the Company
or any of its Subsidiaries, other than (A) in connection with any GCI Divestiture, (B) the issuance of any Certificate in replacement
of any lost or destroyed Certificate representing then previously existing shares of Company Capital Stock, (C) in connection with
the exercise, settlement or vesting of any Company Equity Awards, including the withholding of shares to satisfy withholding Tax obligations
in respect of Company Equity Awards, (D) the conversion of Company Series B Common Stock pursuant to the Company Charter, or
(E) the exchange of shares of Company Series B Common Stock for shares of Company Series C Common Stock (or vice versa)
in accordance with the Exchange Agreement or the Exchange Side Letter; or (iii) redeem, purchase or otherwise acquire, directly
or indirectly, any shares of capital stock of or other equity interests in the Company or any of its Subsidiaries, other (A) in
connection with any GCI Divestiture, (B) the issuance of any Certificate in replacement of any lost or destroyed Certificate representing
then previously existing shares of Company Capital Stock, (C) in connection with the exercise, settlement or vesting of any Company
Equity Awards, including the withholding of shares to satisfy withholding Tax obligations in respect of Company Equity Awards, (D) the
conversion of Company Series B Common Stock pursuant to the Company Charter, or (E) the exchange of shares of Company Series B
Common Stock for shares of Company Series C Common Stock (or vice versa) in accordance with the Exchange Agreement or the Exchange
Side Letter.
(g) Investments;
Indebtedness. The Company shall not and shall not agree to, and shall cause each of its Subsidiaries not to and not to agree to:
(i) make any loans, advances or capital contributions to, or investments in, any other Person, other than loans, advances, capital
contributions or investments by the Company or a Wholly Owned Subsidiary of the Company to or in the Company or any Wholly Owned Subsidiary
of the Company (other than GCI or any of its Subsidiaries) in the ordinary course of business that would not reasonably be expected to
result in a material adverse tax consequence for the Company or its Subsidiaries (other than GCI and its Subsidiaries), taken as a whole;
(ii) incur, assume, prepay, repay, amend or modify any Indebtedness other than (v) the incurrence of Indebtedness represented
by revolving borrowings under the Company Margin Facility and any incremental loan borrowings permitted under Section 2.15 of the
Company Margin Facility made (1) in an amount that does not exceed $25 million at any time outstanding to address the payment of
working capital expenses (including, for the avoidance of doubt, corporate overhead expenses) in the ordinary course of business consistent
with past practice, (2) to address the payment of fees and expenses relating to the transactions contemplated hereby or expressly
permitted by the terms of this Agreement, (3) to address the payment, repayment, redemption, repurchase or settlement of any Company
Debt (including, for the avoidance of doubt, any interest and any related premiums) in accordance with this Agreement and/or the Stockholders
and Letter Agreement Amendment, as applicable, and (4) the payment of any Tax Liabilities incurred as a result of the GCI Divestiture
or Tax Liabilities of the Company and the Non-GCI Subsidiaries, (w) the payment, repayment, redemption, repurchase or settlement
of any Company Debt (including any interest and any related premiums) (1) as contemplated by Section 5.22 (including,
for the avoidance of doubt, any put, call or exchange contemplated by Section 5.22(c)), (2) as contemplated by the Stockholders
and Letter Agreement Amendment, (3) that represents revolving borrowings under the Company Margin Facility or interest on any Company
Debt and (4) that represents term loans under the Company Margin Facility to the extent needed to reduce the LTV Ratio (as defined
in the Margin Loan Agreement as in effect on the date of this Agreement) under the Margin Loan Agreement from greater than 50% to 50%
(in the case of this clause (4), solely after Parent is afforded a reasonable opportunity to (A) repurchase shares of Parent Common
Stock from the Company (provided, that, for the avoidance of doubt, any such repurchase shall not result in the pro forma Equity Interests
(as defined in the Stockholders and Letter Agreement Amendment) of the shares of Parent Common Stock then owned by the Company being
less than 25.25% after giving effect to the repurchase of shares from the Company), (B) make loans to the Company under a Parent
Loan Facility and/or (C) instruct the Company and its Subsidiaries to pledge unencumbered Company Owned Parent Shares to support
the Company Margin Facility, in each case, to the extent necessary to so reduce the LTV Ratio), (x) borrowings and the payment and
repayment of borrowings (including interest) under any Parent Loan Facility, (y) (1) amendments to or modifications of the
Margin Loan Agreement (and any related documents) provided that (A) such amendment or modification does not increase the amount
of Indebtedness (including any unused incremental borrowing capacity permitted by Section 2.15 of the Margin Loan Agreement) that
may be borrowed under the Margin Loan Agreement, (B) such amendment or modification does not introduce any prepayment or similar
fees or penalties, (C) only reasonable fees for such amendment or modification are incurred or paid in connection therewith, (D) solely
with respect to any amendment or modification made more than one year prior to the stated maturity of the Company Margin Facility, such
amendment or modification does not have the effect of making Section 2.09 of the Margin Loan Agreement (including any definition
referenced therein) less favorable to the Company in any material respect, (E) such amendment does not add obligors or require that
additional Company Common Stock be pledged thereunder other than pursuant to provisions no less favorable than those set forth in the
Margin Loan Agreement and related documents as in effect on the date of this Agreement and (F) after giving effect thereto, the
loans and commitments outstanding thereunder are prepayable and terminable, as applicable, at any time without premium or penalty (subject
to notice requirements and breakage obligations consistent with the Margin Loan Agreement as in effect on the date of this Agreement)
and (2) any Permitted Margin Loan Refinancings and (z) amendments or modifications to any Exchangeable Debentures Indenture
in connection with any redemption or put right notice (as contemplated by Section 5.22) to irrevocably elect to settle any repurchase
or exchange obligations in cash; (iii) assume, guarantee, endorse, grant an Encumbrance on any of its assets as security (other
than Permitted Encumbrances) or otherwise become liable or responsible (directly or contingently) for Indebtedness of another Person
other than, in any case, guarantees related to the Parent Loan Facility; or (iv) to the extent outstanding, take any action that
would result in a change to the number of Reference Shares (as defined in each Exchangeable Debentures Indenture as in effect on the
date of this Agreement) from that set forth in Section 3.2(b) (other than as a result of any action by the Parent (or
successor to Parent) or any change resulting from the transactions contemplated by the Transaction Documents (including or any requested
action by the Parent pursuant to Section 5.22)).
(h) Benefits
Changes. Except as required under the terms of any Company Plan as in effect on the date of this Agreement, the Company shall not,
and shall cause each of its Subsidiaries (excluding GCI Spinco, GCI and their respective Subsidiaries to the extent that any such actions
would not result in any Liability to Parent, the Company or any of its Subsidiaries (other than GCI and its Subsidiaries)) not to: (i) increase
or commit to increase the compensation or benefits of, or grant, pay or commit to grant or pay any new severance benefits or entitlements
to, any current or former Company Employee, non-employee director or other individual service provider; (ii) make or forgive any
loans or advances to, or grant, pay or commit to grant or pay any transaction, retention or change-in-control entitlement to, any current
or former Company Employee, non-employee director or other individual service provider (other than advances of expenses to any director
or officer of the Company in connection with advancement obligations in effect on the date of this Agreement); (iii) establish,
adopt, or enter into any Company Plan or any plan, program, policy, practice, agreement or arrangement that would be a Company Plan if
in effect on the date of this Agreement, including any new pension, other retirement, deferred compensation, equity or equity-based compensation,
or other compensation or benefit agreement, plan or arrangement for the benefit of any current or former Company Employee, non-employee
director or other individual service provider; (iv) amend, modify or terminate any existing Company Plan; (v) accelerate the
timing of vesting or payment of compensation or benefits to any current or former Company Employee, non-employee director or other individual
service provider; (vi) renew or enter into any modification of any collective bargaining agreement or implement or announce any
reduction in labor force; (vii) provide any funding for any rabbi trust or similar arrangement; (viii) hire, engage or promote
any employees, other than to fill existing positions below the level of vice president that are or become vacant; (ix) terminate
(other than for cause) any employee at or above the level of vice president; (x) take any action that would constitute a “Mass
Layoff” or “Plant Closing” within the meaning of the WARN Act or require notice to employees, or trigger any other
obligations or liabilities, under the WARN Act or any similar state, local or foreign Law; or (xi) except as may be required by
GAAP, materially change the manner in which contributions to any broad-based Company Plans are made or the basis on which such contributions
are determined.
(i) Accounting
Matters. The Company shall not change its method of accounting, except (i) as required by changes in GAAP or Regulation S-X
under the Exchange Act or (ii) as may be required by a change in applicable Law. The Company shall not, and shall cause each of
its Subsidiaries not to, change its or any such Subsidiary’s fiscal year.
(j) Tax
Matters. The Company shall not, and shall not permit any of its Non-GCI Subsidiaries to: (i) make, change or revoke any material
Tax election (other than (A) in the ordinary course consistent with past practice or (B) in connection with the GCI Divestiture
and as expressly contemplated by the Separation Principles); (ii) settle or compromise any material Tax Liability with any Governmental
Authority for an amount materially in excess of the amount reserved or provided for in accordance with GAAP in the Company SEC Documents;
(iii) surrender any right to claim a material refund of Taxes, (iv) consent to any extension or waiver (other than extensions
of time to file Tax Returns obtained in the ordinary course of business) of the limitation period applicable to any claim for or assessment
of Taxes in excess of $1,000,000 relating to the Company or any of its Non-GCI Subsidiaries, (v) change any material method of Tax
accounting; (vi) enter into any closing agreement pursuant to Section 7121 of the Code (or any similar provision of state,
local or foreign law); (vii) apply for any Tax ruling; (viii) file any amended U.S. federal income or other material Tax Return;
(ix) enter into any Tax allocation, indemnity, sharing or similar agreement (other than any provisions contained in commercial agreements
entered into the ordinary course of business the primary purpose of which does not relate to Taxes); or (x) initiate or enter into
any voluntary disclosure agreement or similar agreement with any Governmental Authority with respect to Taxes in excess of $1,000,000.
(k) Capital
Expenditures. The Company shall not, and shall cause each of its Subsidiaries not to, authorize, or enter into any commitment for,
any capital expenditures that would result in the aggregate amount of such capital expenditure authorizations, commitments and spend
at any point in time from and after the date of this Agreement exceeding $25,000,000 during any 12-month period, other than any capital
expenditure authorizations, commitments and spend in accordance with the annual budget set forth on Section 5.1(k) of
the Company Disclosure Letter.
(l) Lines
of Business. The Company shall not, and shall cause each of its Subsidiaries not to, (i) enter into any new line of business,
other than the lines of business in which the Company and its Subsidiaries are currently engaged as of the date of this Agreement or
(ii) establish any non-Wholly Owned Subsidiary or joint venture.
(m) Discharge
of Liabilities. The Company shall not, and shall cause each of its Subsidiaries not to, pay, discharge, settle or compromise, or
fail to defend, any Actions before any Governmental Authority or consent to the entry of any Order in connection therewith, other than
(i) in the ordinary course consistent with past practice where the amounts paid or to be paid by the Company and its Subsidiaries
are in an amount less than $25,000,000 in the aggregate (net of amounts covered by insurance policies of the Company and its Subsidiaries),
(ii) that do not involve the admission of wrongdoing by the Company or any of its Subsidiaries and (iii) that do not impose
restrictions (in any material respect) on the business of the Company or any of its Subsidiaries, or on the Surviving Corporation or
the Surviving Company, as applicable, following the Effective Time or the Upstream Effective Time.
(n) No
Rights Plan. The Company shall not adopt or implement any stockholder rights plan, “poison pill” or similar anti-takeover
agreement or plan, in each case that would prohibit, restrict or delay, or otherwise be applicable to, the Merger.
(o) Material
Contracts. Other than with respect to Company Debt governed by Section 5.1(g), the Company shall not, and shall cause
each of its Subsidiaries not to, amend (other than renewals), modify or terminate (other than expirations and/or non-renewals pursuant
to its terms) any Company Material Contract or enter into any Contract (other than upsells or renewals in accordance with the terms thereof)
which would have been a Company Material Contract if entered into prior to the date hereof, except, in any such case, (i) in the
ordinary course of business or (ii) in connection with the transactions contemplated by the Transaction Documents.
(p) Affiliate
Transactions. Except (i) in the ordinary course of business consistent with past practice, (ii) if any such transaction
would not result in any obligation or Liability to the Company or any of its Subsidiaries, and (iii) for any Affiliate Contracts
in effect on the date hereof (including any renewals in accordance with the terms thereof after the date hereof), the Company shall not,
and shall cause each of its Subsidiaries not to, enter into any transactions between the Company or any of its Subsidiaries, on the one
hand, and, on the other hand, (A) any director, officer, Affiliate or associate of the Company or any of its Subsidiaries or (B) any
of the Persons referred to in clauses (i) through (vii) of the definition of “Affiliate”.
(q) General.
The Company shall not, and shall cause each of its Subsidiaries not to, authorize or enter into any agreement or otherwise make any commitment
to do any of the foregoing set forth in this Section 5.1.
Section 5.2 Conduct
of Parent’s Business Pending the Effective Time. From the date of this Agreement until the Effective Time, except (i) as
required by applicable Law, (ii) as expressly required or expressly permitted by this Agreement or any other Transaction Document,
or as expressly required by any Parent Governance Instrument in effect as of the date of this Agreement, (iii) as consented to in
writing by the Company (which consent shall not be unreasonably conditioned, withheld or delayed) or (iv) as set forth in Section 5.2
of the Parent Disclosure Letter:
(a) Governing
Documents. Parent shall not, and shall cause each of Merger Sub and Merger LLC not to, amend the Parent Governance Instruments or
the organizational or governing documents of Merger Sub or Merger LLC in a manner that would adversely affect the holders of Company
Capital Stock relative to other holders of Parent Capital Stock; provided, that, the foregoing shall not prohibit the filing of
the Certificate of Designations.
(b) No
Dissolution or Reorganization. Parent shall not authorize or adopt, or publicly propose, a plan or agreement of complete or partial
liquidation or dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of Parent or any of its Subsidiaries;
provided, that, the foregoing shall not prohibit any Excluded Alternative Parent Transaction.
(c) Issuance;
Dividends; Changes in Stock. Parent shall not: (i) reclassify, combine, adjust, split or subdivide any capital stock of Parent
or any equity security (including any units) in Charter Communications Holdings, LLC (the “Charter Holdings Equity Securities”),
other than where equitable adjustments are made to the number of shares of Parent Capital Stock constituting the Merger Consideration
pursuant to Section 2.6(b); (ii) issue or authorize the issuance of shares of capital stock of Parent or Charter Holdings
Equity Securities, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares
of capital stock of Parent or Charter Holdings Equity Securities, other than (A) the issuance of Parent Capital Stock pursuant to
the Transaction Documents or Parent Equity Awards governed by the Parent Stock Plans, (B) the issuance, grant or sale of Parent
Class A Common Stock for or in excess of fair market value or (C) in connection with any Excluded Alternative Parent Transaction
or other acquisition transactions that would not constitute Alternative Parent Transactions; (iii) redeem, purchase or otherwise
acquire, directly or indirectly, any shares of capital stock of or other equity interests in Parent or Charter Holdings Equity Securities,
other than (A) subject to clause (iv), in connection with the exercise, settlement or vesting of any equity awards with respect
to shares of capital stock of Parent, including the withholding of shares to satisfy withholding Tax obligations in respect of such equity
awards, (B) as required pursuant to the governance documents of Charter Communications Holdings, LLC or the Parent Governance Instruments
or (C) any cash repurchases of capital stock of Parent or Charter Holdings Equity Securities made pursuant to ordinary course share
repurchase programs and the Stockholders and Letter Agreement Amendment; or (iv) declare with a record date or ex-dividend date
that is at or prior to the Closing or pay at or prior to the Closing any dividend or other distribution payable in cash, stock, property
or otherwise, with respect to capital stock or other equity interests of Parent or with respect to Charter Holdings Equity Securities.
(d) General.
Parent shall not, and shall cause each of its Subsidiaries not to, authorize or enter into any agreement or otherwise make any commitment
to do any of the foregoing set forth in this Section 5.2.
Section 5.3 No
Solicitation by the Company; Alternative Company Transaction.
(a) The
Company will, and will cause each of its Subsidiaries and each of the directors, officers and employees of the Company and each of its
Subsidiaries to, and shall instruct and use reasonable best efforts to cause the other Representatives of the Company and its Subsidiaries
to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Third Party or
its Representatives conducted prior to the date of this Agreement with respect to any Alternative Company Transaction Proposal. The Company
will promptly request each such Person that has, within the twelve (12) months preceding the date of this Agreement, executed a confidentiality
agreement in connection with its consideration of any Alternative Company Transaction to return or destroy all confidential information
furnished prior to the execution of this Agreement to or for the benefit of such Person by or on behalf of the Company or any of its
Subsidiaries and will promptly terminate access by all Persons (other than Parent and its Representatives) to any physical or electronic
data rooms relating to a possible Alternative Company Transaction. The Company shall not, and shall cause its Subsidiaries and each of
its and its Subsidiaries’ directors, officers and employees not to, and shall instruct and use reasonable best efforts to cause
the other Representatives of the Company and its Subsidiaries not to, directly or indirectly, (i) solicit, initiate or knowingly
facilitate, induce or encourage any inquiries or the making or announcement of any proposal or offer (including any proposal or offer
to the Company Stockholders) that constitutes, or would reasonably be expected to lead to, an Alternative Company Transaction Proposal,
(ii) enter into, continue or otherwise participate in any discussions or negotiations regarding any Alternative Company Transaction
Proposal or (iii) furnish to any Person any non-public information with respect to the Company and its Subsidiaries, or afford access
to the business, properties, assets, books or records of the Company or any of its Subsidiaries to any Person or Group (other than Parent
and its Representatives), in each case to knowingly facilitate or encourage the making of, or knowingly cooperate in any way that would
reasonably be expected to lead to, any Alternative Company Transaction Proposal, except in each case as expressly permitted by this Section 5.3;
provided, that, notwithstanding anything to the contrary in this Agreement, the Company or any of its Representatives may in any
event (A) inform any Person that makes an Alternative Company Transaction Proposal of the restrictions imposed by the provisions
of this Section 5.3 or (B) waive any standstill provisions in any agreement with any Person or Group solely to the extent
such standstill provisions would prohibit such Person or Group from making an Alternative Company Transaction Proposal privately to the
Company Board.
(b) If,
following the date of this Agreement and prior to obtaining the Company Requisite Approvals, the Company receives a bona fide written
Alternative Company Transaction Proposal which did not result from a breach of this Section 5.3, upon a good faith determination
by the Company Board, after consultation with its outside legal counsel and financial advisor, (i) that based on information then
available such Alternative Company Transaction Proposal either constitutes a Superior Company Proposal or would reasonably be expected
to result in a Superior Company Proposal (excluding for purposes of determining whether such Alternative Company Transaction Proposal
would reasonably be expected to result in a Superior Company Proposal, any assessment of the likelihood that the Malone Group would vote
in favor of, tender into or otherwise support such Alternative Company Transaction Proposal) and (ii) that failure to take such
action would be inconsistent with its fiduciary duties under applicable Law, and subject to compliance with Section 5.3(c),
the Company and its Representatives may then take the following actions notwithstanding anything to the contrary contained in Section 5.3(a):
(i) Furnish
any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or
records of the Company or any of its Subsidiaries to, the Person or Group (and their respective Representatives) making such Alternative
Company Transaction Proposal; provided, that prior to furnishing any such information, it receives from such Person or Group an
executed confidentiality agreement containing terms and restrictions at least as restrictive as the terms contained in the Confidentiality
Agreement (other than de minimis differences but including a customary “standstill” agreement by such Person or Group,
which standstill shall not prohibit such Person or Group from making an Alternative Company Transaction Proposal privately to the Company
Board) and that does not contain any express provision requiring the Company or its Subsidiaries to pay or reimburse the counterparty’s
fees, costs or expenses of any nature; provided, further, that the Company shall not furnish to any such Person or Group
any information furnished by or on behalf of Parent or its Representatives to the Company or its Representatives or made available pursuant
to the Confidentiality Agreement; and
(ii) Following
the execution of the confidentiality agreement referenced in the foregoing clause (i), engage in discussions or negotiations with
such Person or Group (and their Representatives) with respect to such Alternative Company Transaction Proposal.
(c) In
addition to the obligations of the Company set forth in Sections 5.3(a), 5.3(b) and 5.4, as promptly as practicable
(and in any event within twenty-four (24) hours) after receipt of any Alternative Company Transaction Proposal or any initial request
for information from, or for the initiation of negotiations with, the Company or its Representatives concerning an Alternative Company
Transaction Proposal, the Company shall provide the Parent Special Committee with an initial written notice of such Alternative Company
Transaction Proposal or request. Such notice shall include a written summary of the material terms and conditions of such Alternative
Company Transaction Proposal or request (including unredacted copies of any such written Alternative Company Transaction Proposal or
request), and the identity of the Person or Group making such Alternative Company Transaction Proposal or request. In addition, the Company
shall (i) keep the Parent Special Committee reasonably currently informed of the status of, and negotiations (if any) regarding,
and any material developments affecting the terms and conditions of, such Alternative Company Transaction Proposal or request and (ii) provide
the Parent Special Committee promptly (and in any event within forty-eight (48) hours) with all non-public information concerning the
Company or any of its Subsidiaries that is made available to the Person or Group making such Alternative Company Transaction Proposal
or request (or any of their Representatives), which was not previously made available to the Parent Special Committee or its Representatives.
Without limiting the foregoing, the Company shall promptly (and in any event within twenty-four (24) hours after any determination) advise
the Parent Special Committee in writing if the Company Board determines to begin providing information or engaging in discussions concerning
an Alternative Company Transaction Proposal pursuant to Section 5.3(b).
(d) The
Company shall not, and shall not permit any of its Subsidiaries, or any of its or their Representatives on the Company’s or its
Subsidiaries’ behalf, to, enter into any confidentiality agreement that prohibits the Company or any of its Subsidiaries from complying
with its obligations to Parent under this Agreement.
Section 5.4 Company
Change of Recommendation.
(a) Except
as expressly permitted by this Section 5.4, the Company Board shall not, nor shall any committee thereof, directly or indirectly,
(i) make a Company Adverse Recommendation Change or (ii) approve or recommend, or publicly propose to approve or recommend,
or allow the Company or any of its Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement
in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar
agreement, arrangement or understanding (A) constituting, or providing for, any Alternative Company Transaction Proposal (other
than a confidentiality agreement as contemplated by Section 5.3(b)(i)) or (B) requiring it (or that would require it)
to abandon, terminate or fail to consummate the Merger. Notwithstanding anything to the contrary set forth in this Agreement, at any
time prior to obtaining the Company Requisite Approvals, the Company Board may, subject to compliance with Section 5.4(b),
solely in response to (1) a Company Intervening Event, make a Company Adverse Recommendation Change under clause (a) of
the definition thereof or (2) a Superior Company Proposal that did not result from a breach of Section 5.3, make a Company
Adverse Recommendation Change, if, in either case, the Company Board determines in good faith, after consultation with its outside legal
counsel and outside financial advisor, that the failure to take such action would be inconsistent with its fiduciary duties under applicable
Law.
(b) The
Company shall not make a Company Adverse Recommendation Change in response to a Company Intervening Event or a Superior Company Proposal
unless:
(i) in
the case of a Superior Company Proposal, such Superior Company Proposal has been made and has not been withdrawn and continues to be
a Superior Company Proposal; and
(ii) the
Company shall have first (A) provided to Parent and the Parent Special Committee five (5) Business Days’ prior written
notice (the “Company Notice Period”), which notice shall state expressly (1) that a Company Intervening Event
has occurred or that the Company has received a Superior Company Proposal, as applicable, (2) (x) in the case of a Company
Intervening Event, the material facts underlying such Company Intervening Event in reasonable detail or (y) in the case of a Superior
Company Proposal, the material terms and conditions of the Superior Company Proposal (including the form and per share value of the consideration
offered therein and the identity of the Person or Group making the Superior Company Proposal), and the Company shall provide to Parent
and the Parent Special Committee unredacted copies of the relevant transaction agreements with the Person or Group making such Superior
Company Proposal and other material documents related thereto (it being understood and agreed that any amendment (or subsequent amendment)
to the financial terms, including to the proposed purchase price, or to any other material term of such Superior Company Proposal or
any material change to the relevant facts and circumstances underlying the Company Intervening Event shall each require the Company to
provide a new notice to Parent and the Parent Special Committee in accordance with this Section 5.4(b), provided,
that the Company Notice Period in connection with any such new notice shall be four (4) Business Days (the “Amended Company
Notice Period”), but no such Amended Company Notice Period shall shorten the Company Notice Period) and (3) that in response
to such Company Intervening Event or Superior Company Proposal, the Company intends to make a Company Adverse Recommendation Change,
and (B) prior to making a Company Adverse Recommendation Change, during the Company Notice Period or the Amended Company Notice
Period, as applicable, to the extent requested by the Parent Special Committee, engaged, and directed its Representatives to engage,
in good faith negotiations with the Parent Special Committee and its Representatives during such Company Notice Period or Amended Company
Notice Period, as applicable, to amend this Agreement to permit the Company Board not to make such Company Adverse Recommendation Change,
and considered in good faith any bona fide offer (a “Parent Offer”) by Parent to the Company, and, after such negotiations
and good faith consideration of such Parent Offer, if any, the Company Board again makes the determination described in the last sentence
of Section 5.4(a) (it being understood that the delivery of the notification contemplated by this Section 5.4(b) shall
not, in and of itself, constitute a Company Adverse Recommendation Change).
(c) Notwithstanding
any Company Adverse Recommendation Change, this Agreement shall be submitted to the Company Stockholders at the Company Stockholders
Meeting for the purpose of obtaining the Company Requisite Approvals, and nothing contained herein (unless this Agreement is otherwise
terminated in accordance with its terms) shall relieve the Company of such obligation.
(d) Except
as expressly prohibited by this Section 5.4, nothing contained in this Agreement shall prohibit the Company or the Company
Board from (i) taking and disclosing to the Company Stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated
under the Exchange Act (or any similar communication to Company Stockholders in connection with the making or amendment of a tender offer
or exchange offer) or (ii) making any “stop-look-and-listen” or similar communication to the Company Stockholders of
the nature contemplated by Rule 14d-9 under the Exchange Act; provided, that (A) in no event shall this Section 5.4(d) affect
the obligations specified in this Section 5.4 (or the consequences thereof in accordance with this Agreement) or the definition
of Company Adverse Recommendation Change and (B) any such disclosure (other than the issuance by the Company of a “stop-look-and-listen”
or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) that is otherwise within the definition
of “Company Adverse Recommendation Change” shall be deemed a Company Adverse Recommendation Change for all purposes of this
Agreement.
Section 5.5 No
Solicitation by Parent; Alternative Parent Transaction.
(a) Parent
will, and will cause each of its Subsidiaries and each of the directors, officers and employees of Parent and each of its Subsidiaries
to, and shall instruct and use reasonable best efforts to cause the other Representatives of Parent and its Subsidiaries to, immediately
cease and cause to be terminated any and all existing activities, discussions or negotiations with any Third Party or its Representatives
conducted prior to the date of this Agreement with respect to any Alternative Parent Transaction Proposal. Parent will promptly request
each such Person that has, within the twelve (12) months preceding the date of this Agreement, executed a confidentiality agreement in
connection with its consideration of any Alternative Parent Transaction (other than an Excluded Alternative Parent Transaction) to return
or destroy all confidential information furnished prior to the execution of this Agreement to or for the benefit of such Person by or
on behalf of Parent or any of its Subsidiaries and will promptly terminate access by all Persons (other than the Company and its Representatives)
to any physical or electronic data rooms relating to a possible Alternative Parent Transaction (other than an Excluded Alternative Parent
Transaction). Parent shall not, and shall cause its Subsidiaries and each of its and its Subsidiaries’ directors, officers and
employees not to, and shall instruct and use reasonable best efforts to cause the other Representatives of Parent and its Subsidiaries
not to, directly or indirectly, (i) solicit, initiate or knowingly facilitate, induce or encourage any inquiries or the making or
announcement of any proposal or offer (including any proposal or offer to the Parent Stockholders) that constitutes, or would reasonably
be expected to lead to, an Alternative Parent Transaction Proposal, (ii) enter into, continue or otherwise participate in any discussions
or negotiations regarding any Alternative Parent Transaction Proposal or (iii) furnish to any Person any non-public information
with respect to Parent and its Subsidiaries, or afford access to the business, properties, assets, books or records of Parent or any
of its Subsidiaries to any Person or Group (other than the Company and its Representatives), in each case to knowingly facilitate or
encourage the making of, or knowingly cooperate in any way that would reasonably be expected to lead to, any Alternative Parent Transaction
Proposal, except in each case as expressly permitted by this Section 5.5; provided, that, notwithstanding anything
to the contrary in this Agreement, Parent or any of its Representatives may in any event (A) inform any Person that makes an Alternative
Parent Transaction Proposal of the restrictions imposed by the provisions of this Section 5.5 or (B) waive any standstill
provisions in any agreement with any Person or Group solely to the extent such standstill provisions would prohibit such Person or Group
from making an Alternative Parent Transaction Proposal privately to the Parent Board or the Parent Special Committee.
(b) If,
following the date of this Agreement and prior to obtaining the Parent Requisite Approvals, Parent receives a bona fide written Alternative
Parent Transaction Proposal which did not result from a breach of this Section 5.5, upon a good faith determination by the
Parent Special Committee or the Parent Board (following the recommendation of the Parent Special Committee), after consultation with
its outside legal counsel and financial advisor, (i) that based on information then available such Alternative Parent Transaction
Proposal either constitutes a Superior Parent Proposal or would reasonably be expected to result in a Superior Parent Proposal (excluding
for purposes of determining whether such Alternative Parent Transaction Proposal would reasonably be expected to result in a Superior
Parent Proposal, any assessment of the likelihood that the Company or its Subsidiaries would vote in favor of, tender into or otherwise
support such Alternative Parent Transaction Proposal) and (ii) that failure to take such action would be inconsistent with its fiduciary
duties under applicable Law, and subject to compliance with Section 5.5(c), Parent and its Representatives may then take
the following actions notwithstanding anything to the contrary contained in Section 5.5(a):
(i) Furnish
any information with respect to Parent and its Subsidiaries to, and afford access to the business, properties, assets, books or records
of Parent or any of its Subsidiaries to, the Person or Group (and their respective Representatives) making such Alternative Parent Transaction
Proposal; provided, that prior to furnishing any such information, it receives from such Person or Group an executed confidentiality
agreement containing terms and restrictions at least as restrictive as the terms contained in the Confidentiality Agreement (other than
de minimis differences but including a customary “standstill” agreement by such Person or Group, which standstill
shall not prohibit such Person or Group from making an Alternative Parent Transaction Proposal privately to the Parent Board or the Parent
Special Committee) and that does not contain any express provision requiring Parent or its Subsidiaries to pay or reimburse the counterparty’s
fees, costs or expenses of any nature; provided, further, that Parent shall not furnish to any such Person or Group any
information furnished by or on behalf of the Company or its Representatives to Parent or its Representatives or made available pursuant
to the Confidentiality Agreement; and
(ii) Following
the execution of the confidentiality agreement referenced in the foregoing clause (i), engage in discussions or negotiations with
such Person or Group (and their Representatives) with respect to such Alternative Parent Transaction Proposal.
(c) In
addition to the obligations of Parent set forth in Sections 5.5(a), 5.5(b) and 5.6 as promptly as practicable
(and in any event within twenty-four (24) hours) after receipt of any Alternative Parent Transaction Proposal or any initial request
for information from, or for the initiation of negotiations with, Parent or its Representatives concerning an Alternative Parent Transaction
Proposal, Parent shall provide the Company with an initial written notice of such Alternative Parent Transaction Proposal or request.
Such notice shall include a written summary of the material terms and conditions of such Alternative Parent Transaction Proposal or request
(including unredacted copies of any such written Alternative Parent Transaction Proposal or request), and the identity of the Person
or Group making such Alternative Parent Transaction Proposal or request. In addition, Parent shall (i) keep the Company reasonably
currently informed of the status of, and negotiations (if any) regarding, and any material developments affecting the terms and conditions
of, such Alternative Parent Transaction Proposal or request and (ii) provide the Company promptly (and in any event within forty-eight
(48) hours) with all non-public information concerning Parent or any of its Subsidiaries that is made available to the Person or Group
making such Alternative Parent Transaction Proposal or request (or any of their Representatives), which was not previously made available
to the Company or its Representatives. Without limiting the foregoing, Parent shall promptly (and in any event within twenty-four (24)
hours after any determination) advise the Company in writing if the Parent Special Committee or the Parent Board (acting at the recommendation
of the Parent Special Committee) determines to begin providing information or engaging in discussions concerning an Alternative Parent
Transaction Proposal pursuant to Section 5.5(b).
(d) Parent
shall not, and shall not permit any of its Subsidiaries, or any of its or their Representatives on Parent’s or its Subsidiaries’
behalf, to, enter into any confidentiality agreement that prohibits Parent or any of its Subsidiaries from complying with its obligations
to the Company under this Agreement.
Section 5.6 Parent
Change of Recommendation.
(a) Except
as expressly permitted by this Section 5.6, the Parent Board shall not, nor shall any committee thereof, including the Parent
Special Committee, directly or indirectly, (i) make a Parent Adverse Recommendation Change or (ii) approve or recommend, or
publicly propose to approve or recommend, or allow Parent or any of its Subsidiaries to execute or enter into, any letter of intent,
memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement,
partnership agreement or other similar agreement, arrangement or understanding (A) constituting, or providing for, any Alternative
Parent Transaction Proposal (other than a confidentiality agreement as contemplated by Section 5.5(b)(i)) or (B) requiring
it (or that would require it) to abandon, terminate or fail to consummate the Merger. Notwithstanding anything to the contrary set forth
in this Agreement, at any time prior to obtaining the Parent Requisite Approvals, the Parent Special Committee or Parent Board (acting
at the recommendation of the Parent Special Committee) may, subject to compliance with Section 5.6(b), solely in response
to (1) a Parent Intervening Event, make a Parent Adverse Recommendation Change under clause (a) of the definition thereof
or (2) a Superior Parent Proposal that did not result from a breach of Section 5.5, make a Parent Adverse Recommendation
Change, if, in either case, the Parent Special Committee or the Parent Board (acting at the recommendation of the Parent Special Committee)
determines in good faith, after consultation with its outside legal counsel and outside financial advisor, that the failure to take such
action would be inconsistent with its fiduciary duties under applicable Law.
(b) Parent
shall not make a Parent Adverse Recommendation Change in response to a Parent Intervening Event or a Superior Parent Proposal unless:
(i) in
the case of a Superior Parent Proposal, such Superior Parent Proposal has been made and has not been withdrawn and continues to be a
Superior Parent Proposal; and
(ii) Parent
shall have first (A) provided to the Company five (5) Business Days’ prior written notice (the “Parent Notice
Period”), which notice shall state expressly (1) that a Parent Intervening Event has occurred or that Parent has received
a Superior Parent Proposal, as applicable, (2) (x) in the case of a Parent Intervening Event, the material facts underlying
such Parent Intervening Event, in reasonable detail, or (y) in the case of a Superior Parent Proposal, the material terms and conditions
of the Superior Parent Proposal (including the form and per share value of the consideration offered therein and the identity of the
Person or Group making the Superior Parent Proposal), and Parent shall provide to the Company unredacted copies of the relevant transaction
agreements with the Person or Group making such Superior Parent Proposal and other material documents related thereto (it being understood
and agreed that any amendment (or subsequent amendment) to the financial terms, including to the proposed purchase price, or to any other
material term of such Superior Parent Proposal or any material change to the relevant facts and circumstances underlying the Parent Intervening
Event shall each require Parent to provide a new notice to the Company in accordance with this Section 5.6(b), provided,
that the Parent Notice Period in connection with any such new notice shall be four (4) Business Days (the “Amended Parent
Notice Period”), but no such Amended Parent Notice Period shall shorten the Parent Notice Period) and (3) that in response
to such Parent Intervening Event or Superior Parent Proposal, Parent intends to make a Parent Adverse Recommendation Change, and (B) prior
to making a Parent Adverse Recommendation Change, during the Parent Notice Period or the Amended Parent Notice Period, as applicable,
to the extent requested by the Company, engaged, and directed its Representatives to engage, in good faith negotiations with the Company
and its Representatives during such Parent Notice Period or Amended Parent Notice Period, as applicable, to amend this Agreement to permit
the Parent Special Committee or the Parent Board (acting at the recommendation of the Parent Special Committee) not to make such Parent
Adverse Recommendation Change, and considered in good faith any bona fide offer (a “Company Offer”) by the Company
to Parent, and, after such negotiations and good faith consideration of such Company Offer, if any, the Parent Special Committee or the
Parent Board (acting at the recommendation of the Parent Special Committee) again makes the determination described in the last sentence
of Section 5.6(a) (it being understood that the delivery of the notification contemplated by this Section 5.6(b) shall
not, in and of itself, constitute a Parent Adverse Recommendation Change).
(c) Notwithstanding
any Parent Adverse Recommendation Change, this Agreement shall be submitted to the Parent Stockholders at the Parent Stockholders Meeting
for the purpose of obtaining the Parent Requisite Approvals, and nothing contained herein (unless this Agreement is otherwise terminated
in accordance with its terms) shall relieve Parent of such obligation.
(d) Except
as expressly prohibited by this Section 5.6, nothing contained in this Agreement shall prohibit Parent or the Parent Board
from (i) taking and disclosing to the Parent Stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated
under the Exchange Act (or any similar communication to Company Stockholders in connection with the making or amendment of a tender offer
or exchange offer) or (ii) making any “stop-look-and-listen” or similar communication to the Parent Stockholders of
the nature contemplated by Rule 14d-9 under the Exchange Act; provided, that (A) in no event shall this Section 5.6(d) affect
the obligations specified in this Section 5.6 (or the consequences thereof in accordance with this Agreement) or the definition
of Parent Adverse Recommendation Change and (B) any such disclosure (other than the issuance by Parent of a “stop-look-and-listen”
or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) that is otherwise within the definition
of “Parent Adverse Recommendation Change” shall be deemed a Parent Adverse Recommendation Change for all purposes of this
Agreement.
Section 5.7 Registration
Statement and Joint Proxy Statement.
(a) As
promptly as practicable following the date of this Agreement, Parent and the Company shall prepare, and (assuming Parent has received
all required information from the Company) Parent shall file with the SEC a Registration Statement on Form S-4 (together with any
amendments thereof or supplements thereto, the “Registration Statement”), in which the joint proxy statement (together
with any amendments thereof or supplements thereto, the “Joint Proxy Statement”) furnished to (i) Company Stockholders
(including the holders of Company Series C Common Stock) in connection with the meeting of the Company Voting Stockholders for the
purpose of obtaining the Company Requisite Approvals (the “Company Stockholders Meeting”) and (ii) Parent Stockholders
in connection with the meeting of the Parent Stockholders for the purpose of obtaining the Parent Requisite Approvals (the “Parent
Stockholders Meeting”), will be included. Each of Parent and the Company shall use its reasonable best efforts to cause the
Registration Statement and the Joint Proxy Statement and any other filings required to be made with the SEC in connection with the transactions
contemplated by the Transaction Documents to comply with the rules and regulations promulgated by the SEC, to have the Registration
Statement declared effective under the Securities Act and to have the Staff of the SEC advise that it has no further comments on the
Joint Proxy Statement as promptly as practicable after such filing and to keep the Registration Statement effective as long as is necessary
to consummate the transactions contemplated hereby. Each of Parent and the Company shall furnish to the other all information concerning
it and its respective Subsidiaries and Affiliates as may reasonably be requested by the other Party in connection with such actions and
the preparation of the Joint Proxy Statement and the Registration Statement and any other filings required under applicable Law to be
made with the SEC in connection with the transactions contemplated by the Transaction Documents, and shall reasonably cooperate and assist
the other in connection with the preparation and filing of the Registration Statement and Joint Proxy Statement. The Company will cause
the Joint Proxy Statement to be mailed to Company Stockholders and Parent will cause the Joint Proxy Statement to be mailed to Parent
Stockholders, in each case as promptly as practicable after the Registration Statement is declared effective under the Securities Act.
(b) All
filings (including any amendments or supplements thereto) by the Company or Parent with the SEC in connection with the transactions contemplated
by the Transaction Documents and all mailings by the Company or Parent to the Company Stockholders or Parent Stockholders, as applicable,
in connection with the Merger and the other transactions contemplated by the Transaction Documents shall be subject to a reasonable period
of prior review and reasonable comment by the other Party and its Representatives and such Party shall incorporate the other Party’s
reasonable comments into such filings.
(c) Each
of Parent and the Company shall (i) as promptly as practicable notify the other of (A) the receipt of any comments from the
SEC and all other written correspondence and oral communications with the SEC relating to the Joint Proxy Statement or the Registration
Statement or any other filings required under applicable Law to be made with the SEC in connection with the transactions contemplated
by the Transaction Documents (including the time when the Registration Statement becomes effective and the issuance of any stop order
or suspension of qualifications of the Parent Class A Common Stock or the Parent Preferred Stock issuable in connection with the
Merger for offering or sale in any jurisdiction) and (B) any request by the SEC for any amendment or supplements to the Joint Proxy
Statement or the Registration Statement or any other filings required to be made with the SEC in connection with the transactions contemplated
by the Transaction Documents, or for additional information with respect thereto and (ii) supply each other with copies of (A) all
correspondence between it or any of its Representatives, on the one hand, and the SEC, on the other hand, with respect to (x) the
Joint Proxy Statement, (y) the Registration Statement or (z) any other filings required under applicable Law to be made with
the SEC in connection with the transactions contemplated by the Transaction Documents and (B) all Orders of the SEC relating to
the Registration Statement.
(d) If
at any time prior to the Effective Time in the case of the Registration Statement and if at any time prior to the receipt of the Company
Requisite Approvals and Parent Requisite Approvals in the case of the Joint Proxy Statement, any information relating to the Company,
Parent, Merger Sub, Merger LLC or any of their respective Affiliates and Subsidiaries, directors or officers, is discovered by the Company,
Parent, Merger Sub or Merger LLC, which such Party reasonably determines is required to be set forth in an amendment or supplement to
the Joint Proxy Statement or the Registration Statement or any other filing required under applicable Law to be made with the SEC and
disseminated to the Company Stockholders or the Parent Stockholders, so that none of such documents would include any misstatement of
a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which
they were made, not misleading, the Party which discovers such information shall promptly notify the other Parties and an appropriate
amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by Law, disseminated
to the Company Stockholders or the Parent Stockholders.
(e) Unless
this Agreement has been terminated pursuant to Section 7.1, the Company shall duly give notice of, convene and hold the Company
Stockholders Meeting (in compliance with applicable Law and the Company Governance Instruments) as promptly as practicable (but in no
event later than forty-five (45) days) following the date the Registration Statement is declared effective under the Securities Act and
the Staff of the SEC advises that it has no further comments on the Joint Proxy Statement or that the Company may commence mailing the
Joint Proxy Statement and use good faith efforts to schedule the Company Stockholders Meeting on the same day or as close in time as
reasonably practicable to the Parent Stockholders Meeting, for the purpose of seeking the Company Requisite Approvals and, subject to
Section 5.4, the Company shall use its reasonable best efforts to solicit such adoption and obtain the Company Requisite
Approvals. The Company (in consultation with Parent) shall set a single record date for persons entitled to notice of, and to vote at,
the Company Stockholders Meeting. Notwithstanding the foregoing, the Company shall not adjourn or postpone the Company Stockholders Meeting
without Parent’s prior written consent (acting through the Parent Special Committee) other than (A) to the extent necessary
to ensure that any supplement or amendment to the Joint Proxy Statement that the Company Board has determined in good faith after consultation
with outside legal counsel is necessary under Law is provided to the Company Stockholders in advance of a vote to obtain the Company
Requisite Approvals, (B) if, as of the time for which the Company Stockholders Meeting is originally scheduled, there are insufficient
shares of Company Capital Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of
such meeting, (C) if additional time is reasonably required to solicit proxies in favor of the adoption of this Agreement, or (D) otherwise
to comply with applicable Law; provided, that in the case of either clauses (A), (B), (C), or (D),
the Company Stockholders Meeting shall only be adjourned or postponed for a minimum time that the Company determines in good faith to
be reasonable under the circumstances (it being understood that any such adjournment or postponement shall not affect the Company’s
obligation to hold the Company Stockholders Meeting as aforesaid) and, in the case of clauses (B) and (C) the
Company Stockholders Meeting shall not be postponed more than once and shall not be postponed for a period of longer than 30 days following
the originally scheduled date of the Company Stockholders Meeting without Parent’s prior written consent. The Company shall ensure
that all proxies solicited in connection with the Company Stockholders Meeting are solicited in compliance with applicable Law and the
Company Governance Instruments. Without limiting the generality of the foregoing, the Company’s obligations pursuant to this Section 5.7(e) (including
its obligation to hold the Company Stockholders Meeting at which this Agreement shall be submitted to the Company Stockholders to obtain
the Company Requisite Approvals as aforesaid) shall not be affected by the commencement, public proposal, public disclosure or communication
to the Company of any Alternative Company Transaction Proposal or by a Company Adverse Recommendation Change. Prior to the date of the
Company Stockholders Meeting, the Company shall, upon the reasonable request of Parent, direct the proxy solicitor or other agent of
the Company to advise Parent as to the aggregate tally of proxies received by the Company with respect to the Company Requisite Approvals
at the same frequency as such information is provided to the Company. Without the prior written consent of Parent, the Company Requisite
Approvals shall be the only matters (other than matters of procedure and matters required by applicable Law to be voted on by the Company
Stockholders in connection therewith) that the Company shall propose to be voted on by Company Stockholders at the Company Stockholders
Meeting. The Company Board shall not take any action that would cause any approval by the Company Stockholders other than the Company
Requisite Approvals to be necessary to adopt the Transaction Documents and to consummate the transactions contemplated hereby and thereby.
Except to the extent expressly permitted by Section 5.4, (i) the Company Board shall recommend that the Company Stockholders
vote in favor of the adoption of this Agreement at the Company Stockholders Meeting and (ii) the Joint Proxy Statement shall include
a statement to the effect that the Company Board recommends that the Company Stockholders vote in favor of adoption of this Agreement
at the Company Stockholders Meeting.
(f) Unless
this Agreement has been terminated pursuant to Section 7.1, Parent shall duly give notice of, convene and hold the Parent
Stockholders Meeting (in compliance with applicable Law and the Parent Governance Instruments) as promptly as practicable (but in no
event later than forty-five (45) days) following the date the Registration Statement is declared effective under the Securities Act and
the Staff of the SEC advises that it has no further comments on the Joint Proxy Statement or that Parent may commence mailing the Joint
Proxy Statement and use good faith efforts to schedule the Parent Stockholders Meeting on the same day or as close in time as reasonably
practicable to the Company Stockholders Meeting, for the purpose of seeking the Parent Requisite Approvals and, subject to Section 5.6,
Parent shall use its reasonable best efforts to solicit such adoption and obtain the Parent Requisite Approvals. Parent (in consultation
with the Company) shall set a single record date for persons entitled to notice of, and to vote at, the Parent Stockholders Meeting.
Notwithstanding the foregoing, Parent shall not adjourn or postpone the Parent Stockholders Meeting without the Company’s prior
written consent other than (A) to the extent necessary to ensure that any supplement or amendment to the Joint Proxy Statement that
the Parent Special Committee or the Parent Board (acting at the direction of the Parent Special Committee) has determined in good faith
after consultation with outside legal counsel is necessary under Law is provided to the Parent Stockholders in advance of a vote to obtain
the Parent Requisite Approvals, (B) if, as of the time for which the Parent Stockholders Meeting is originally scheduled, there
are insufficient shares of Parent Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct
the business of such meeting, (C) if additional time is reasonably required to solicit proxies in favor of the approval of the Stock
Issuance or this Agreement and the transactions contemplated hereby, including the Merger, or (D) otherwise to comply with applicable
Law; provided, that in the case of either clauses (A), (B), (C), or (D), the Parent Stockholders Meeting
shall only be adjourned or postponed for a minimum time that Parent (acting at the direction of the Parent Special Committee) determines
in good faith to be reasonable under the circumstances (it being understood that any such adjournment or postponement shall not affect
Parent’s obligation to hold the Parent Stockholders Meeting to obtain the Parent Requisite Approvals as aforesaid) and, in the
case of clauses (B) and (C) the Parent Stockholders Meeting shall not be postponed more than once and shall not
be postponed for a period of longer than 30 days following the originally scheduled date of the Parent Stockholders Meeting without the
Company’s prior written consent. Parent shall ensure that all proxies solicited in connection with the Parent Stockholders Meeting
are solicited in compliance with applicable Law and the Parent Governance Instruments. Without limiting the generality of the foregoing,
Parent’s obligations pursuant to this Section 5.7(f) (including its obligation to hold the Parent Stockholders
Meeting at which this Agreement shall be submitted to the Parent Stockholders to obtain the Parent Requisite Approvals as aforesaid)
shall not be affected by the commencement, public proposal, public disclosure or communication to Parent of any Alternative Parent Transaction
Proposal or by a Parent Adverse Recommendation Change. Prior to the date of the Parent Stockholders Meeting, Parent shall, upon the reasonable
request of the Company, direct the proxy solicitor or other agent of Parent to advise the Company as to the aggregate tally of proxies
received by Parent with respect to the Parent Requisite Approvals at the same frequency as such information is provided to Parent. Without
the prior written consent of the Company, the Parent Requisite Approvals shall be the only matters (other than matters of procedure and
matters required by applicable Law to be voted on by the Parent Stockholders in connection therewith) that Parent shall propose to be
voted on by the Parent Stockholders at the Parent Stockholders Meeting. The Parent Board shall not take any action that would cause any
approval by the Parent Stockholders other than the Parent Requisite Approvals to be necessary to adopt the Transaction Documents and
to consummate the transactions contemplated hereby and thereby. Except to the extent expressly permitted by Section 5.6,
(i) the Parent Board shall recommend that the Parent Stockholders approve the Stock Issuance and this Agreement and the transactions
contemplated hereby, including the Merger, at the Parent Stockholders Meeting and (ii) the Joint Proxy Statement shall include a
statement to the effect that the Parent Board recommends that the Parent Stockholders vote in favor of approval of the Stock Issuance
and this Agreement and the transactions contemplated hereby, including the Merger, at the Parent Stockholders Meeting.
Section 5.8 Information
and Access.
(a) From
the date of this Agreement until the Effective Time, but subject to Section 5.27, upon reasonable notice and subject to applicable
Law, the Company will, and will cause its Subsidiaries, and will direct its and their officers, directors, employees, contractors, Representatives
and Affiliates to, afford to the officers, employees, counsel, bankers, accountants and other authorized Representatives of Parent and
the Parent Special Committee reasonable access during normal business hours and upon reasonable prior notice to all its properties, personnel,
books and records for purposes of satisfying Parent’s rights and obligations under this Agreement and furnish promptly to such
Persons such information concerning its business, properties, personnel and affairs as such Persons will from time to time reasonably
request for purposes of satisfying Parent’s rights and obligations under this Agreement. The Company shall be entitled to have
a Representative present at all times during any such inspection, and all such inspections granted pursuant to this Section 5.8
shall be subject to the Company’s reasonable security measures. Subject to the terms of this Agreement, the Company shall maintain
and exercise complete control and supervision over the Company and its Subsidiaries.
(b) From
the date of this Agreement until the Effective Time, subject to applicable Law, Parent shall act reasonably and in good faith in responding
to such requests for information as the Company will from time to time reasonably make, to the extent reasonably necessary to enable
the Company to consummate the transactions contemplated hereby in accordance with the terms herewith and consistent with the Company’s
rights and obligations under this Agreement.
(c) No
investigation or information provided pursuant to this Section 5.8 shall affect or otherwise obviate or diminish any representations
or warranties of any Party or conditions to the obligations of any Party.
(d) Each
of the Company and Parent will hold all information furnished by or behalf of the other Party or its Representatives pursuant to this
Section 5.8 in confidence in accordance with the provisions of that certain Non-Disclosure Agreement, dated as of August 29,
2024 (the “Confidentiality Agreement”), by and between the Company and Parent, provided that Parent shall be
permitted to provide information to A/N on a confidential basis as reasonably requested by A/N and Parent shall use reasonable best efforts
to cause A/N to comply with the confidentiality and use restrictions set forth in the Confidentiality Agreement with respect to such
information.
(e) Nothing
in this Section 5.8 or in any other part of this Agreement shall require the Company or Parent, as applicable, to permit
any inspection of, or to disclose:
(i) any
information concerning Alternative Company Transaction Proposals or Alternative Parent Transaction Proposals, which shall be governed
by Section 5.3 and Section 5.4 (in the case of Alternative Company Transaction Proposals) and Section 5.5
and Section 5.6 (in the case of Alternative Parent Transaction Proposals);
(ii) any
information regarding the deliberations of the Company Board, Parent Board or Parent Special Committee, as applicable, with respect to
the transactions contemplated hereby or any similar transaction or transactions with any other Person, the entry into this Agreement,
or any materials provided to the Company Board, Parent Board or Parent Special Committee, as applicable, in connection therewith;
(iii) materials
prepared by the Parent Special Committee’s or Parent’s financial or legal advisors or by the Company’s financial or
legal advisors; or
(iv) materials
the disclosure of which (A) would jeopardize any attorney-client or other privilege or (B) would contravene any applicable
Law, fiduciary duty or confidentiality obligation, provided, that Parent and the Company shall use commercially reasonable efforts
to take such actions as may be reasonably required to allow such disclosure to be provided to the other Party or its Representatives
without waiving privilege or causing a violation of applicable Law, fiduciary duty or confidentiality obligation.
(f) Without
limiting the generality of Section 5.8(a), from the date of this Agreement until the Effective Time, the Company will, and
will cause its applicable Non-GCI Subsidiaries (and, solely until the consummation of the GCI Divestiture, GCI and its Subsidiaries)
to, (i) with respect to any U.S. federal income or other material Tax Return of the Company or any of its Non-GCI Subsidiaries (or,
solely with respect to taxable periods (or portions thereof) that end on or prior to the consummation of the GCI Divestiture, GCI and
its Subsidiaries) that is required to be filed after the date of this Agreement, make commercially reasonable efforts to deliver a draft
of such Tax Return to Parent for review and comment at least fifteen (15) days before it is due and consider in good faith Parent’s
reasonable comments received by the Company within five (5) days after Parent received such Tax Return, (ii) with respect to
any material Tax audit, action or other proceeding with respect to the Company or any of its Non-GCI Subsidiaries (or, solely with respect
to taxable periods (or portions thereof) that end on or prior to the consummation of the GCI Divestiture, GCI and its Subsidiaries),
promptly provide any updates (including any communications from a Governmental Authority) to Parent, and (iii) provide to Parent
and its Subsidiaries such cooperation, documentation and information as Parent reasonably may request in connection with the foregoing.
Section 5.9 Reasonable
Best Efforts.
(a) Subject
to the terms and conditions herein provided, each of Parent, Merger Sub, Merger LLC and the Company shall use their reasonable best efforts
to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under
applicable Laws to consummate and make effective as promptly as reasonably practicable the transactions contemplated by or related to
the Transaction Documents to which such Party is a party (including the satisfaction, but not waiver, of the Closing conditions set forth
in Article VI).
(b) In
furtherance and not in limitation of the foregoing, each of Parent, Merger Sub, Merger LLC and the Company shall use their reasonable
best efforts to obtain consents of all Governmental Authorities and Third Parties necessary to consummate the transactions contemplated
by or related to the Transaction Documents. Each Party hereto shall, to the extent applicable, make appropriate filings, if necessary,
pursuant to the HSR Act (or any other Competition Law) with respect to the transactions contemplated by or related to the Transaction
Documents as promptly as reasonably practicable after the date that is one year prior to June 30, 2027 (and/or such other date as
reasonably determined by the Parties such that the end of the initial waiting period under the HSR Act is no earlier than one year prior
to the Closing); provided, that in connection with the GCI Divestiture, any such filing pursuant to the HSR Act shall be made
as promptly as reasonably practicable to permit the GCI Divestiture, including any distributions to Company Stockholders, to be completed
as contemplated by this Agreement, and shall supply as promptly as practicable to the appropriate Governmental Authorities any additional
information and documentary material that may be requested pursuant to the HSR Act (or any other Competition Law).
(c) Each
of the Parties hereto shall use its reasonable best efforts, subject to applicable Laws, to (i) cooperate in all respects with each
other in connection with any filing or submission with a Governmental Authority in connection with the transactions contemplated by the
Transaction Documents and in connection with any investigation or other inquiry by or before a Governmental Authority relating to such
transactions, including any proceeding initiated by a private party; (ii) promptly notify the other Party of any written communication
to that party from the Federal Trade Commission, the Antitrust Division of the Department of Justice or any other Governmental Authority
and permit the other Party to review in advance any proposed communication relating to the transactions contemplated by the Transaction
Documents; (iii) consult with the other Party prior to participating in any substantive meeting, telephone call or discussion with
any Governmental Authority in respect of any filings, investigation or inquiry concerning the Transaction Documents and provide the other
Party the opportunity to attend and participate in any such meeting, telephone call or discussion; and (iv) furnish the other party
with copies of all correspondence, filings, and written communications (or a reasonably detailed summary of any oral communications)
between them and their respective Representatives on the one hand, and any Governmental Authority or members of their respective staffs
on the other hand, with respect to Transaction Documents. Notwithstanding the foregoing or any other provision of this Agreement to the
contrary, other than in the case of the GCI Divestiture or any Company Representative’s conversion of Company Capital Stock pursuant
to Section 2.6, Parent will control (in a manner consistent with this Section 5.9) and lead all communications
and strategy relating to obtaining the required approvals, if any, pursuant to the HSR Act (and any other Competition Laws), and the
Company will not, and will cause its Subsidiaries and Representatives not to, (A) make any proposal to, or (except to the extent
required by Law) any filings with, Governmental Authorities in respect of any matter related to the such required approvals without the
prior written consent of Parent, given or withheld in Parent’s reasonable discretion (acting at the direction of the Parent Special
Committee) or (B) otherwise contact Governmental Authorities to communicate with them in respect of any matter related to such required
approvals without the prior written consent of Parent, given or withheld in Parent’s reasonable discretion (acting at the direction
of the Parent Special Committee); provided, that Parent shall keep the Company reasonably informed on a current basis, consult
with and consider in good faith the views and comments of the Company in connection with such communications and strategy.
(d) In
furtherance and not in limitation of the covenants of the Parties contained in this Section 5.9, each of the Parties shall
use its reasonable best efforts to resolve objections, if any, as may be asserted by a Governmental Authority or other Person with respect
to the Combination; provided, however, that, notwithstanding anything to the contrary in the Transaction Documents, but
subject to Section 5.24, (i) in no event shall the Company, Parent or any of their Subsidiaries, Affiliates or Representatives
be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or
accept or take any operational restriction, requirement or action, that is not conditional on the consummation of the Merger, and (ii) in
no event shall Parent or any of its Subsidiaries, GCI Spinco, or the Company’s Representatives, be required to become subject to,
consent to or offer or agree to, or otherwise take any action with respect to, any requirement, condition, limitation, understanding,
agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or
portion of business of the Company, Parent, GCI Spinco, Company Representative or any Subsidiary of any of the foregoing, (B) conduct,
restrict, operate, invest or otherwise change the assets, the business or portion of the business of the Company, Parent, GCI Spinco,
Company Representative or any Subsidiary of any of the foregoing in any manner or (C) impose any restriction, requirement or limitation
on the operation of the business or portion of the business of the Company, Parent, GCI Spinco, Company Representative or any Subsidiary
of any of the foregoing.
Section 5.10 Section 16
Matters. Prior to the Effective Time, each of Parent and the Company shall take all such steps as may be required (to the extent
permitted under applicable Law) to cause any acquisitions from or dispositions to Parent or the Company of shares of Parent Capital Stock
or Company Capital Stock, as applicable, resulting from the transactions contemplated by the Transaction Documents (including securities
deliverable upon exercise, vesting or settlement of any Company Equity Awards or Parent Equity Awards or other derivative securities)
by each Person who is subject to the reporting requirements of Section 16(a) of the Exchange Act with respect to Parent or
the Company, respectively, to be exempt under Rule 16b-3 promulgated under the Exchange Act, including in accordance with that certain
No-Action Letter dated January 12, 1999 issued by the SEC regarding such matters.
Section 5.11 Tax
Matters.
(a) Parent,
the Company, Merger LLC and Merger Sub intend that, for U.S. federal income tax purposes, (i) the Combination shall qualify as a
“reorganization” within the meaning of Section 368(a) of the Code, (ii) no gain or loss shall be recognized
by holders of Company Common Stock pursuant to the Combination (other than with respect to the receipt of GCI Spinco stock, cash received
in lieu of fractional shares of GCI Spinco stock, cash received in lieu of Fractional Shares, or cash paid in respect of Dissenting Shares)
under Sections 354 and 356 of the Code, (iii) the receipt of stock of GCI Spinco by holders of Company Common Stock in the GCI Divestiture,
if any, shall be treated as the receipt of “other property” described in Section 356 of the Code to which Section 356(a)(2) of
the Code does not apply, and (iv) no gain or loss shall be recognized by the Company as a result of the Combination, including upon
the receipt of proceeds pursuant to the Stockholders and Letter Agreement Amendment, which proceeds shall be treated as “other
property” the receipt of which qualifies for nonrecognition of gain or loss under Section 361(b)(1)(A) and (b)(3) of
the Code by reason of the transfers of such proceeds to the Company’s creditors in pursuance of the plan of reorganization (clauses
(i)-(iv), the “Intended Tax Treatment”). Each of Parent, the Company, Merger LLC and Merger Sub (A) shall, and
shall cause its respective Subsidiaries to, use its reasonable best efforts to cause the transactions described in the preceding sentence
to qualify for the Intended Tax Treatment, (B) shall, subject to the last sentence of this Section 5.11(a), file all
Tax Returns in a manner consistent with, and take no position inconsistent with (whether in audits, Tax Returns or otherwise) such Intended
Tax Treatment (unless otherwise required by a change in applicable Law occurring after the date hereof or a “determination,”
as defined in Section 1313(a) of the Code or corresponding provision of state, local or foreign applicable Law), (C) shall
use its reasonable best efforts to take or cause to be taken any action within its control reasonably necessary to ensure the receipt
of the Tax Opinions and (D) will cooperate with the tax counsel that are to render the Tax Opinions by providing appropriate representations
as to factual matters on the Closing Date and the date of any Tax Opinions delivered in connection with the Registration Statement, as
applicable, including in the case of the Company, the Company Tax Opinion Representations, and in the case of Parent, the Parent Tax
Opinion Representations. The parties’ obligations described in clause (B) above shall cease to apply if the Combination has
not occurred prior to the Drop Dead Date or the termination of this Agreement pursuant to Section 7.1.
(b) Parent,
the Company, Merger LLC and Merger Sub hereby adopt this Agreement, the Stockholders and Letter Agreement Amendment, and the GCI Divestiture
Documents, as well as any other agreements entered into pursuant to this Agreement, as a “plan of reorganization” within
the meaning of Sections 1.368-2(g) and 1.368-3(a) of the Treasury Regulations.
(c) Except
as expressly contemplated or permitted by this Agreement or the other Transaction Documents, none of Parent, the Company, Merger LLC
or Merger Sub shall, nor shall it permit its Affiliates to, take any action, and each of Parent, the Company, Merger LLC and Merger Sub
shall not, and shall ensure that its Affiliates do not, fail to take any action (provided, that such action is otherwise permitted
to be taken under this Agreement and the Transaction Documents to which such Party is a party), which action or failure to act would
prevent, preclude or impede (i) Company Tax Counsel from delivering the Company Tax Opinion or (ii) Parent Tax Counsel from
delivering the Parent Tax Opinion.
(d) Immediately
prior to the Closing, the Company shall execute and deliver the Company Tax Opinion Representation Letter to Parent Tax Counsel and Company
Tax Counsel.
(e) Immediately
prior to the Closing, Parent shall execute and deliver the Parent Tax Opinion Representation Letter to Parent Tax Counsel and Company
Tax Counsel.
(f) Notwithstanding
anything to the contrary in this Agreement, if, following the date hereof, there is a proposed change in U.S. federal income tax Law
(including, for this purpose, new or revised pronouncements of the United States Internal Revenue Service or Treasury Department) that
has an announced effective date, but is not yet effective, and Company Tax Counsel or Parent Tax Counsel, as applicable, indicates such
proposed change would (i) prevent Company Tax Counsel from delivering the Company Tax Opinion or (ii) prevent Parent Tax Counsel
from delivering the Parent Tax Opinion, in each case, if such change were effective (a “Proposed Change in Tax Law”),
then, at the election of the Company or Parent, Parent, the Company, Merger Sub and Merger LLC shall use reasonable best efforts to cause
the Closing to occur prior to the effective date of such Proposed Change in Tax Law.
(g) If,
following the date hereof, there is a change in U.S. federal income tax Law (including, for this purpose, new or revised pronouncements
of the United States Internal Revenue Service or Treasury Department) or a material change in facts, as set forth in the Tax Opinion
Representations, in either case, that Company Tax Counsel or Parent Tax Counsel, as applicable, indicates would (i) prevent Company
Tax Counsel from delivering the Company Tax Opinion, (ii) prevent Parent Tax Counsel from delivering the Parent Tax Opinion or (iii) cause
both (A) prong (iv) of the Intended Tax Treatment to fail to be satisfied and (B) the Company to recognize any income
or gain on loans from Parent as a result of the Combination, then, at the election of the Company or Parent, Parent, the Company, Merger
LLC and Merger Sub shall use reasonable best efforts to implement alternative transactions, if any, whereby, (A) following such
alternative transactions, the GCI Business is no longer owned by the Company, Parent or any of their Subsidiaries (other than GCI and
its Subsidiaries), (B) as part of the alternative transactions, either Parent or an Affiliate of Parent, directly or indirectly,
owns the Company Owned Parent Shares, or such Company Owned Parent Shares are no longer issued and outstanding, (C) pursuant to
such alternative transactions, each holder of shares of Company Series A Common Stock, Company Series B Common Stock, Company
Series C Common Stock or Company Preferred Stock is entitled to receive the same Common Consideration or Preferred Consideration,
as applicable, which such holder would have received pursuant to Section 2.6 of this Agreement, as well as consideration
contemplated to be paid to a holder pursuant to a GCI Divestiture, (D) pursuant to such alternative transactions, each holder of
Company Equity Awards is entitled to receive the same consideration such holder would have been entitled to receive pursuant to Section 2.8
of this Agreement (as well as any adjustments for a GCI Divestiture), (E) Company Tax Counsel is able to provide an opinion
that neither the Company nor holders of Company Common Stock “will” recognize gain or loss for U.S. federal income tax purposes
as a result of the completion of such alternative transactions (except any income, gain or loss of the Company or its shareholders with
respect to the GCI Divestiture (including the receipt of any stock of GCI Spinco),upon
the receipt of cash in lieu of Fractional Shares, or payment of cash to holders of Dissenting Shares), (F) Parent Tax Counsel is
able to provide an opinion that neither the Company nor holders of Company Common Stock “will” recognize gain or loss for
U.S. federal income tax purposes as a result of the completion of such alternative transactions (except any income, gain or loss of the
Company with respect to the GCI Divestiture (including the receipt of any stock of GCI Spinco), upon the receipt of cash in lieu of Fractional
Shares or payment of cash to holders of Dissenting Shares), and (G) such alternative transactions will not cause the Company to
recognize taxable income or gain on (i) share repurchases pursuant to the Stockholders and Letter Agreement Amendment by reason
of the transfers of such proceeds to the Company’s creditors in pursuance of the plan of reorganization or (ii) loans from
Parent as a result of the Combination (such alternative transactions, collectively the “Alternative Tax-Free Transactions”);
provided that such Alternative Tax-Free Transaction (x) does not impose any unreimbursed incremental costs on Parent, the
Company, or their shareholders, reduce the anticipated benefits of the Combination to Parent in any unreimbursed respect or otherwise
fail to satisfy the Intended Tax Treatment and (y) is not reasonably expected to delay the Closing past the Drop Dead Date. Following
any change of law or material change of facts described in the first sentence of this Section 5.11(g), the Company or Parent
may, at its election, present a proposed Alternative Tax-Free Transaction to Parent or the Company, as applicable, and Parent or Company,
as applicable, shall, within twenty days after receipt thereof, indicate whether it agrees such proposal qualifies as an Alternative
Tax-Free Transaction, or, if not, identify, in writing, the specific prongs of the definition of Alternative Tax-Free Transaction that
are not satisfied by the proposal. If an Alternative Tax-Free Transaction is identified, the parties shall amend the Transaction Documents
to implement such Alternative Tax-Free Transactions and to provide that the Parties shall cooperate in obtaining the opinion referred
to in clauses (E) and (F) of the preceding sentence, including by the provision of appropriate representation
letters.
(h) From
the date of this Agreement until the consummation of the GCI Divestiture, any acquisition by GCI or any of its Subsidiaries, directly
or indirectly, by purchase, merger, consolidation or otherwise, of the equity or material assets of another Person (other than GCI or
any of its Subsidiaries) shall be structured as a fully taxable acquisition, provided, however that if the acquisition is a purchase
of stock of such Person for applicable Tax purposes that does not result in a step-up in asset basis, then notwithstanding anything to
the contrary in the Separation Principles (including Annex A attached thereto), no Section 338(h)(10) Election or Section 336(e) Election
(in each case, as defined in Annex A to the Separation Principles) shall be made with respect to such Person.
Section 5.12 Public
Announcements. The Company and Parent shall consult with each other before issuing, and will provide each other the opportunity to
review and reasonably comment upon, and use reasonable best efforts to agree on, any press release or other public statements with respect
to the Transaction Documents and the transactions contemplated hereby and thereby, and shall not issue any such press release or make
any such public statement without the prior written consent of the other Party (which shall not be unreasonably withheld, delayed or
conditioned), except as either Party, after consultation with outside counsel, may determine is required by applicable Law, court process
or by obligations pursuant to any listing agreement with any national securities exchange or stock market if it has used reasonable best
efforts to consult with the other Party prior thereto regarding the timing, scope and content of any such press release or public statement;
provided, however, that no such consultation shall be required to make any disclosure or otherwise take any action expressly
permitted by Section 5.3, Section 5.4, Section 5.5 or Section 5.6 (or for the other Party
to respond to any such disclosure or action). In addition, except (i) to the extent disclosed in or consistent with the Registration
Statement or Joint Proxy Statement in accordance with the provisions of Section 5.7, (ii) to the extent necessary to
comply with such Party’s periodic reporting obligations under the Exchange Act, (iii) for any consent given in accordance
with this Section 5.12 or (iv) as expressly permitted by Section 5.3, Section 5.4, Section 5.5
or Section 5.6 (or for the other Party to respond to any such disclosure or action), neither Party shall issue any press
release or otherwise make any public statement or disclosure concerning the other Party or the other Party’s business, financial
condition or results of operations without the consent of such other Party, which consent shall not be unreasonably withheld, delayed
or conditioned. The Parties agree that the initial press release to be issued with respect to the transactions contemplated hereby shall
be in the form agreed to by the Parties. Notwithstanding the foregoing, after the issuance of any press release or the making of any
public statement with respect to which the consultation procedures set forth in this Section 5.12 have been followed, either
Party may issue such additional publications or press releases and make such other customary announcements without consulting with any
other Party hereto so long as such additional publications, press releases and announcements do not disclose any non-public information
regarding the transactions contemplated by the Transaction Documents beyond the scope of, and are reasonably consistent in tone and tenor
with, the disclosure included in the press release or public statement with respect to which the other Party had been consulted.
Section 5.13 Expenses.
Other than as expressly contemplated by Section 5.22 or Section 5.23, whether or not the Combination is consummated,
all costs and expenses incurred or to be incurred in connection with this Agreement and the transactions contemplated hereby will be
paid by the Party (or, in the case of Merger Sub and Merger LLC, by Parent) incurring such cost or expense.
Section 5.14 Indemnification
and Insurance.
(a) For
a period of six (6) years after the Effective Time (and until such later date as of which any Action against any Indemnified Party
commenced during such six (6)-year period shall have been finally disposed of) (such six (6)-year anniversary of the Effective Time or,
if applicable, such later date, the “Extended Date”), Parent shall, and shall cause the Surviving Corporation and
its Subsidiaries and, from and after the Upstream Merger, the Surviving Company and its Subsidiaries to, honor and fulfill in all respects
the obligations (including both indemnification and advancement of expenses) of the Company and its Subsidiaries under their respective
certificates of incorporation or bylaws (or any similar organizational documents) and under any indemnification agreements, in each case,
in effect on the date of this Agreement, for the benefit of (x) any of the Company’s or its Subsidiaries’ current or
former directors and officers and any Person who becomes a director or officer of the Company or any of its Subsidiaries prior to the
Effective Time or (y) any Person serving or who prior to the Effective Time has served on the board of directors or board of managers
(or similar governing body) of another Person, or as an officer, employee or agent of another Person, at the request of the Company or
its Subsidiaries, in the case of each of clauses (x) and (y), in each such individual’s capacity as described
in such clause (collectively, the “Indemnified Parties”); provided, that Parent shall be entitled to the benefit of
the same express limitations on such obligations as the Surviving Corporation and the Surviving Company under such organization documents,
indemnification agreements and applicable Law. In addition, for the period following the Effective Time and until the Extended Date,
Parent shall cause the certificates of incorporation, certificates of formation and bylaws and operating agreements, as applicable (and
other similar organizational documents) of the Surviving Corporation, the Surviving Company and their respective Subsidiaries to contain
provisions with respect to indemnification, advancement of expenses and exculpation in favor of the Indemnified Parties (in their capacities
as such) for events and Actions to the extent relating to periods at or prior to the Effective Time that are no less advantageous to
the Indemnified Parties (in their capacities as such) than the corresponding provisions in the certificate of incorporation and bylaws
(or other similar organizational documents) of the Company or its applicable Subsidiary, as the case may be, each as in effect on the
date of this Agreement, and during such period, such provisions shall not be amended, repealed or otherwise modified in any respect,
except as required by Law.
(b) Insurance.
Prior to or at the Effective Time, the Company shall obtain and fully pay, or if the Company is unable, Parent shall as of the Effective
Time cause to be obtained and fully paid, a non-cancellable tail policy (“D&O Tail”) for the directors’
and officers’ liability coverage of the Company’s existing directors’ and officers’ insurance policies and the
Company’s existing fiduciary liability insurance policies (collectively, “D&O Insurance”), which D&O
Tail shall (i) cover each individual covered by the D&O Insurance immediately prior to the Effective Time (in each case in his
or her applicable covered capacity), (ii) be for a claims reporting or discovery period of at least six (6) years from and
after the Effective Time with respect to any acts or omissions prior to, or any claim related to any period of time at or prior to, the
Effective Time, (iii) be from an insurance carrier with the same or better credit rating as the Company’s current insurance
carrier with respect to D&O Insurance and (iv) have terms, conditions, retentions and limits of liability that are no less favorable
to the intended beneficiaries than the coverage provided under the Company’s existing D&O Insurance, including with respect
to any actual or alleged error, misstatement, misleading statement, act, omission, neglect, breach of duty or any matter claimed against
an Indemnified Party by reason of his or her having served in such capacity that existed or occurred at or prior to the Effective Time
(including in connection with this Agreement or the transactions or actions contemplated hereby); provided, that the cost of such
D&O Tail shall in no event exceed three hundred percent (300%) of the amount of the last annual premium paid by the Company for the
D&O Insurance; and provided, further, that if the aggregate cost of D&O Tail exceeds such amount, the obligation
shall be to obtain a D&O Tail with the greatest coverage available, with respect to matters occurring prior to the Effective Time,
for a cost not exceeding such amount. If the Company or Parent for any reason fails to obtain (or cause to be obtained) such D&O
Tail as of the Effective Time, the Surviving Corporation or Surviving Company, as applicable, shall continue to maintain in effect, for
a period of at least six (6) years from and after the Effective Time, coverage provided by the D&O Insurance (whether with the
Company’s current insurance carrier or with an insurance carrier with the same or better credit rating as the Company’s current
insurance carrier with respect to D&O Insurance) with terms, conditions, retentions and limits of liability that are no less favorable
in the aggregate to the intended beneficiaries than the coverage provided under the Company’s existing D&O Insurance; provided,
that, in no event shall the Surviving Corporation or Surviving Company be required to expend for such policies pursuant to this sentence
an annual premium amount in excess of three hundred percent (300%) of the premium amount per annum for the Company’s existing D&O
Insurance; and provided, further, that if the aggregate premiums of such insurance coverage exceed such amount, the Surviving
Corporation or the Surviving Company, as applicable, shall be obligated to obtain a policy with the greatest coverage available, with
respect to matters occurring prior to the Effective Time, for a cost not exceeding such amount.
(c) Successors.
If Parent, the Surviving Corporation, the Surviving Company or any of their respective successors or assigns shall (i) consolidate
with, or merge with or into, any other Person and shall not be the continuing or surviving corporation or entity of such consolidation
or merger or (ii) transfer all or substantially all of its properties or assets to any Person (including, for the avoidance of doubt,
by cancelling or otherwise eliminating all or substantially all of its properties or assets), then, in each case, Parent, the Surviving
Corporation, the Surviving Company or any of their respective successors or assigns shall take such action as may be necessary so that
such Person (and its successors and assigns) shall assume all of the applicable obligations set forth in this Section 5.14
to the extent not assumed by operation of Law.
(d) Enforceability.
Each of the covered individuals described in Section 5.14(b)(i) and each Indemnified Party (in each case, in his or
her capacity as such) is intended, from and after the Effective Time, to be a third-party beneficiary of the applicable provisions of
this Section 5.14 with full rights of enforcement as if a party hereto. From and after the Effective Time, this Section 5.14
will be irrevocable, and no term of this Section 5.14 may be amended, waived or modified so as to adversely affect the
rights of the Indemnified Parties (and covered individuals described in Section 5.14(b)(i)) (in each case, in his or her
capacity as such) under this Section 5.14, without the prior written consent of each affected Indemnified Party. From and
after the Effective Time, any amendment, waiver or modification of this Section 5.14 without such consent shall be null and
void. The rights of the Indemnified Parties (and covered individuals described in Section 5.14(b)(i)) (in each case, in his
or her capacity as such) under this Section 5.14 shall be in addition to, and not in substitution for, any other rights that
such Persons may have under the certificate or articles of incorporation, bylaws or other equivalent organizational documents, any and
all indemnification agreements of or entered into by any corporation or entity whatsoever, or applicable Law (whether at law or in equity).
Section 5.15 Notification
of Certain Matters. The Company shall give prompt notice to Parent and Parent shall give prompt notice to the Company, as the case
may be, of (a) the occurrence or non-occurrence of any event of which would or would reasonably be expected to cause any representation
or warranty of the Company or Parent, as the case may be, to be untrue or inaccurate at the Closing Date such that the conditions to
Closing set forth in Article VI would fail to be satisfied and (b) any failure by the Company or Parent, as the case
may be, to materially comply with or materially satisfy any covenant or other agreement to be complied with by such Party hereunder such
that the conditions to Closing set forth in Article VI would or would reasonably be expected to fail to be satisfied; provided,
however, that the delivery of any notice pursuant to this Section 5.15 shall not limit or otherwise affect any remedies
available to Parent or the Company, as the case may be; provided, further, that a Party’s good faith failure to comply
with this Section 5.15 shall not provide any other Party the right not to effect the transactions contemplated by this Agreement,
except to the extent that any other provision of this Agreement independently provides such right.
Section 5.16 Defense
of Litigation.
(a) Prior
to the Effective Time, the Company shall promptly (and in any event, within two (2) Business Days) advise Parent, and Parent shall
promptly (and in any event, within two (2) Business Days) advise the Company, of any Action commenced or, to such Party’s
Knowledge, threatened to be commenced, after the date of this Agreement, against such Party or any of its directors or officers by any
stockholder relating to this Agreement and the transactions contemplated hereby, and shall keep Parent or the Company, as applicable,
reasonably informed regarding any such litigation.
(b) Prior
to the Effective Time, the Company shall give Parent the opportunity to consult with the Company regarding, and, if appropriate, subject
to a customary joint defense agreement, participate in (but not control), the defense or settlement of any such Action at Parent’s
own expense and shall consider Parent’s views with respect to such Action, and shall not settle, compromise or enter into any agreement
or arrangement, or consent to the entry of, or fail to defend against entry of, any order or judgment, with respect to any such Action
without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed).
(c) Prior
to the Effective Time, Parent shall give the Company the opportunity to consult with Parent regarding, and, if appropriate, subject to
a customary joint defense agreement, participate in (but not control), the defense or settlement of any such Action at the Company’s
own expense and shall consider the Company’s views with respect to such Action, and shall not settle, compromise or enter into
any agreement or arrangement, or consent to the entry of, or fail to defend against entry of, any order or judgment, with respect to
any such Action without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed);
provided, that such prior written consent of the Company shall not be required for, and Parent may enter into, any settlement,
compromise, agreement, arrangement, order or judgment of such Action so long as such settlement, compromise, agreement, arrangement,
order or judgment does not include an admission of liability or wrongdoing on the part of, and does not impose any monetary or non-monetary
remedy or relief against, the Company or any of its current or former directors or officers (to the extent such individuals are a party
to such Action).
(d) After
the Effective Time, Parent may enter into any settlement, compromise, agreement, arrangement, order or judgment of such Action so long
as such settlement, compromise, agreement, arrangement, order or judgment does not include an admission of liability or wrongdoing on
the part of, and does not impose any monetary or non-monetary remedy or relief against, any of the Company’s current or former
directors or officers (to the extent such individuals are a party to such Action).
(e) Each
Party shall use its reasonable best efforts to cause its Representatives to cooperate with the other Party in the defense against any
such Action relating to this Agreement and the transactions contemplated hereby.
Section 5.17 State
Takeover Laws. The Company and Parent shall (a) take all reasonable action necessary to ensure that no restriction in any “fair
price,” “business combination,” “control share acquisition” or other state takeover statute or similar
Law is or becomes applicable to this Agreement or any of the transactions contemplated by the Transaction Documents and (b) if the
restrictions of any “fair price,” “business combination,” “control share acquisition” or other state
takeover statute or similar Law becomes applicable to this Agreement or any of the transactions contemplated by the Transaction Documents,
take all reasonable action necessary to ensure that such transactions may be consummated as promptly as practicable on the terms required
by, or provided for, in this Agreement or the other Transaction Documents and otherwise to minimize the effect of such Law on the transactions
contemplated by the Transaction Documents.
Section 5.18 Stock
Exchange Delisting. Prior to the Closing Date, the Company and Parent shall cooperate and use their respective reasonable best efforts
to take, or cause to be taken, all actions, and do or cause to be done all things, reasonably necessary on their part under applicable
Law and the rules and policies of Nasdaq to enable the delisting of the shares of the Company Series A Common Stock, Company
Series C Common Stock and Company Preferred Stock from Nasdaq, the removal of the Company Series B Common Stock from the OTC
Markets and the deregistration of the shares of Company Capital Stock under the Exchange Act as promptly as practicable after the Effective
Time.
Section 5.19 Listing.
Parent shall use reasonable best efforts to cause the shares of Parent Class A Common Stock and Parent Preferred Stock issuable
under Article II to be authorized for listing on Nasdaq, subject to official notice of issuance, prior to the Closing.
Section 5.20 Reservation
of Parent Capital Stock. At or prior to the Effective Time, Parent shall reserve (free from preemptive rights) out of its authorized
but unissued shares of Parent Capital Stock for the purposes of effecting the conversion of the issued and outstanding shares of Company
Capital Stock and issued and outstanding Company Equity Awards, in each case pursuant to Article II, sufficient shares of
Parent Class A Common Stock and Parent Preferred Stock, as applicable, to provide for such conversion.
Section 5.21 Obligations
of Merger Sub and Merger LLC. Parent shall take all actions necessary to cause Merger Sub and Merger LLC to (i) perform their
respective obligations under this Agreement and to consummate the Merger on the terms and conditions set forth in this Agreement, including
the adoption of this Agreement by Merger LLC as the sole stockholder of Merger Sub, and (ii) consummate the Upstream Merger in accordance
with Section 267 of the DGCL and Section 18-209(i) of the DLLCA immediately following the Effective Time. Merger LLC has
taken all action as is necessary or advisable to authorize the Upstream Merger in accordance with Merger LLC’s governing documents
and Section 267 of the DGCL and Section 18-209(i) of the DLLCA, and such authorization is and shall be the only authorization
necessary to authorize the Upstream Merger.
Section 5.22 Financing
Matters.
(a) Early
Redemption.
(i) At
the request of Parent (and in consultation with the Company) at any time following the satisfaction of the conditions precedent set forth
in Section 6.1(a) and Section 6.1(b), the Company shall, with respect to any outstanding series of Exchangeable
Debentures and the Exchangeable Debentures Indenture relating thereto:
(1) (x) as
promptly as practicable (and in any event within ten (10) Business Days thereafter), unless the Company reasonably determines that
it does not have aggregate LBC Available Liquidity (it being understood and agreed that Parent shall be entitled to repurchase additional
shares of Parent Common Stock to enable the Company to satisfy its obligations contemplated by this clause (1) (provided that, for
the avoidance of doubt, any such repurchase shall not result in the pro forma Equity Interests (as defined in the Stockholders and Letter
Agreement Amendment) of the shares of Parent Common Stock then owned by the Company being less than 25.25% after giving effect to such
repurchase of shares from the Company)) and/or availability under any Parent Loan Facility (as of the date the notice of redemption is
delivered) sufficient in the reasonable judgment of the Company to meet the applicable redemption or reasonably expected exchange obligation
under the applicable Exchangeable Debenture Indenture (as set forth in an officer’s certificate delivered to Parent with reasonably
detailed calculations thereof), execute and deliver to the trustee and holders a notice of redemption (in form and substance reasonably
satisfactory to Parent) in accordance with such Exchangeable Debentures Indenture and the applicable series of Exchangeable Debentures
pursuant to which such Exchangeable Debentures are irrevocably called for redemption pursuant to Section 11.12(a) (or, solely
to the extent permitted by such Exchangeable Debentures Indenture at such time, Section 11.16(a)) of such Exchangeable Debentures
Indenture, as applicable, on the thirtieth (30th) day (or such later date permitted by such Exchangeable Debentures Indenture as may
be agreed by the Parent and the Company) after the date such notice of redemption is delivered and (y) take all actions necessary
to cause such Exchangeable Debentures to be redeemed in full in cash on such redemption date (or, in the event any such Exchangeable
Debentures are exchanged following delivery of such notice of redemption, take all actions necessary to settle any exchange obligation
(including any premium) in respect of such Exchangeable Debentures in full in cash in accordance with such Exchangeable Debentures Indenture
and such Exchangeable Debentures); provided that, with respect to any Exchangeable Debentures that are exchanged following delivery
of such notice of redemption, if the Company reasonably determines as of five (5) business days prior to the settlement date for
such exchange that it does not reasonably expect to have sufficient LBC Available Liquidity and/or availability under any Parent Loan
Facility to satisfy such exchange obligation in cash on such settlement date (the amount of such shortfall, the “Exchangeable
Shortfall Amount”) (as set forth in an officer’s certificate delivered to Parent with reasonably detailed calculations
thereof), Parent (or its applicable Subsidiary) shall, at Parent’s election, subject to Section 3(a)(vii) of the Stockholders
and Letter Agreement Amendment, (x) repurchase additional shares of Parent Common Stock in accordance with the Stockholders and
Letter Agreement Amendment (provided that, for the avoidance of doubt, any such repurchase shall not result in the pro forma Equity Interests
(as defined in the Stockholders and Letter Agreement Amendment) of the shares of Parent Common Stock then owned by the Company being
less than 25.25% after giving effect to such repurchase of shares from the Company) and/or (y) make loans to the Company under a
Parent Loan Facility in accordance with the terms thereof, in each case prior to such settlement date in an amount equal to the Exchangeable
Shortfall Amount; and
(2) in
connection with the transactions set forth in the foregoing clause (1), use reasonable best efforts to arrange for customary instruments
and acknowledgements of discharge of such Exchangeable Debentures Indenture and such Exchangeable Debentures, in each case in respect
of such Exchangeable Debentures, which documents and instruments the Company shall use its reasonable best efforts to deliver to Parent
as soon as practicable on or after (and in any case, no later than five (5) Business Days after) such redemption or settlement.
(ii) At
the request of Parent (but only at such request), the Company shall (or shall cause its applicable Subsidiary to) (A) execute and
deliver notices of redemption, prepayment and/or termination (which, at Parent’s request, shall be delivered in advance of the
Closing Date provided they are contingent upon the occurrence of the Closing), as applicable, in respect of any Company Debt specified
by Parent, in each case in accordance with the terms of such Company Debt and within the time periods requested by Parent in accordance
with such Company Debt, and deliver all other notices and take all other actions required by the terms of such Company Debt, or reasonably
requested by Parent, to facilitate the redemption or prepayment of all amounts outstanding in respect of (and the termination of) such
Company Debt, the release of any guarantees in connection therewith, and the release of any Encumbrances securing such obligations, on
or following the Closing Date, as the case may be (it being understood and agreed that any such redemption, prepayment, termination and/or
release shall be contingent upon the occurrence of the Closing and no actions shall be required which would obligate the Company or its
Subsidiaries to complete such redemption or prepayment prior to the occurrence of the Closing) and (B) use its reasonable best efforts
to arrange for customary payoff letters, terminations of commitments, lien terminations, releases and instruments and acknowledgements
of discharge, as applicable, in respect of such Company Debt, which documents and instruments shall be delivered to Parent on or prior
to the Closing Date (it being understood and agreed that the Company shall use reasonable best efforts to deliver drafts of such documents
and instruments to Parent no later than five (5) Business Days prior to the Closing Date).
(iii) The
Company shall provide Parent and its counsel reasonable opportunity to review and comment on all such documents described in Section 5.22(a)(i) and
(ii), and shall respond in good faith to the comments of Parent or its counsel with respect thereto.
(iv) Parent
shall indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives from and against any and all
losses, claims, damages, liabilities and expenses, including the reasonable and documented fees, charges and disbursements of counsel,
incurred by them in connection with, or as a result of, any actions taken pursuant to this Section 5.22(a), except in the
event such losses, claims, damages, liabilities or expenses arise out of (i) gross negligence, willful misconduct, fraud or bad
faith by the Company or any of its Subsidiaries or their respective Representatives, in each case, as determined by a court of competent
jurisdiction in a final and non-appealable judgment or (ii) a material breach by the Company of this Agreement or the applicable
Exchangeable Debentures Indenture.
(v) The
Company shall apply all LBC Available Liquidity (including by borrowing revolving loans under the Company Margin Facility) to the extent
necessary to consummate the transactions contemplated in this Section 5.22(a)(i)(1).
(b) Assumption.
Unless otherwise requested by Parent in writing, the Company shall (a) take such actions as may be required by Article IX of
each outstanding Exchangeable Debentures Indenture in connection with the Merger, including the preparation of, and the execution and
delivery of, supplemental indentures, officers’ certificates and opinions of counsel in accordance with such provisions; provided
that Parent shall (or shall cause its Subsidiaries or Representatives to) deliver any documentation regarding Merger Sub that may be
reasonably required by the trustee under such Exchangeable Debentures Indenture in order to comply with Article IX of such Exchangeable
Debentures Indenture in connection with the Merger and (b) use reasonable best efforts to facilitate Merger LLC taking such actions
as may be required by Article IX of each outstanding Exchangeable Debentures Indenture in connection with the Upstream Merger; provided,
that Parent shall (or shall cause its Subsidiaries or Representatives to) deliver any opinions of counsel, officers’ certificates
and other documentation on behalf of Merger LLC or in which Merger LLC is a party that may be reasonably required by the trustee under
such Exchangeable Debentures Indenture in order to comply with Article IX of such Exchangeable Debentures Indenture in connection
with the Upstream Merger. The Company shall provide Parent and its counsel reasonable opportunity to review and comment on any documents
prepared or to be executed by the Company or its Representatives in connection with this Section 5.22(b), and shall respond
in good faith to the comments of Parent or its counsel with respect thereto. Unless otherwise requested by Parent in writing, the Company
shall use reasonable best efforts to cause the trustee under each Exchangeable Debentures Indenture to execute any such applicable documents
described in this Section 5.22(b), subject to the proviso in the first sentence of this Section 5.22(b). For
the avoidance of doubt, this Section 5.22(b) shall not apply to any series of Exchangeable Debentures that ceases to
be outstanding prior to the Closing Date in accordance with Section 5.22(a) and/or Section 5.22(c).
(c) Exchange/Put/Call
of Exchangeable Debentures. In the event that (i) any holder of an outstanding Exchangeable Debenture exercises its put right
for the Company to repurchase such holder’s Exchangeable Debentures pursuant to Section 12.01(a) of the applicable Exchangeable
Debentures Indenture in accordance with the terms thereof, (ii) the Company (subject to the prior written consent of the Parent,
not to be unreasonably withheld, delayed or conditioned) exercises its call right to redeem Exchangeable Debentures pursuant to Section 11.16
of the applicable Exchangeable Debentures in accordance with the terms thereof; provided that, if the Parent does not consent to the
Company’s exercise of its call right to redeem on the put date such Exchangeable Debentures pursuant to Section 11.16 of the
applicable Exchangeable Debenture Indenture, then the Company shall not be obligated to exercise such call right while this Agreement
is in effect and, to the extent not previously requested, the Parent shall not be permitted to require the redemption of such Exchangeable
Debentures pursuant to Section 11.12(a) or Section 11.16(a) of such Exchangeable Debenture Indenture while this Agreement
is in effect; or (iii) any holder of any series of Exchangeable Debentures elects to exchange its Exchangeable Debentures pursuant
to Article XI of the applicable Exchangeable Debentures Indenture in accordance with the terms thereof, then, in each case, the
Company shall repurchase, redeem or settle its exchange obligation with respect to such Exchangeable Debentures in full in cash in accordance
with the terms of the applicable Exchangeable Debentures Indenture (and may, in connection with such cash settlement obligations, enter
into any amendment or modification to any Exchangeable Debentures Indenture in consultation with and in form and substance reasonably
satisfactory to Parent to irrevocably elect to settle any repurchase or exchange obligations in cash). The Company shall provide Parent
and its counsel reasonable opportunity to review and comment on the documents, instruments and procedures used to effectuate any repurchase,
redemption or exchange described in this Section 5.22(c), and shall respond in good faith to the comments of Parent or its
counsel with respect thereto.
(d) Compliance
with Stockholders and Letter Agreement Amendment. From and after the date of this Agreement until the Effective Time or the termination
of this Agreement, the Company shall, and shall cause its Subsidiaries to, comply in all respects with Section 9(a) and (b) of
the Stockholders and Letter Agreement Amendment.
(e) GCI
Divestiture Loan. The Company shall fund the payment of any Tax Liabilities incurred as a result of the GCI Divestiture with LBC
Available Liquidity (including after giving effect to the immediately succeeding sentence). If the Company has insufficient LBC Available
Liquidity to make any such payment required to be made by the Company or its Subsidiaries on any such date (the amount of any such shortfall
for such date, the “GCI Divestiture Shortfall Amount”) (as set forth in an officer’s certificate delivered to
Parent with reasonably detailed calculations thereof reasonably in advance of the third (3rd) business day before such date),
no later than three (3) business days prior to any date on which any such payment is expected to be required to be paid by the Company
or its Subsidiaries, Parent (or its applicable Subsidiary) shall, at Parent’s election, subject to Section 3(a)(vii) of
the Stockholders and Letter Agreement Amendment, (x) repurchase additional shares of Parent Common Stock in accordance with the
Stockholders and Letter Agreement Amendment (provided that, for the avoidance of doubt, any such repurchase shall not result in the pro
forma Equity Interests (as defined in the Stockholders and Letter Agreement Amendment) of the shares of Parent Common Stock then owned
by the Company being less than 25.25% after giving effect to such repurchase of shares from the Company) and/or (y) make loans to
the Company under a Parent Loan Facility in accordance with the terms thereof in an amount equal to the GCI Divestiture Shortfall Amount,
the proceeds of which shall be promptly applied to repay revolving borrowings under the Company Margin Facility.
(f) Margin
Loan Parent Loan. If the LTV Ratio (as defined in the Margin Loan Agreement as in effect on the date of this Agreement) under the
Margin Loan Agreement equals or exceeds 50%, then the Parent shall, at Parent’s election, subject to Section 3(a)(vii) of
the Stockholders and Letter Agreement Amendment, (x) repurchase additional shares of Parent Common Stock in accordance with the
Stockholders and Letter Agreement Amendment (provided, that, for the avoidance of doubt, any such repurchase shall not result in the
pro forma Equity Interests (as defined in the Stockholders and Letter Agreement Amendment) of the shares of Parent Common Stock then
owned by the Company being less than 25.25% after giving effect to the repurchase of shares from the Company), (y) make loans to
the Company under a Parent Loan Facility in accordance with the terms thereof and/or (z) instruct the Company and its Subsidiaries
to pledge unencumbered Company Owned Parent Shares to support the Company Margin Facility, in each case, such that the LTV Ratio under
the Margin Loan Agreement would be reduced to 30%; provided that, subject to Section 3(a)(vii) of the Stockholders and Letter
Agreement Amendment, Parent shall be obligated to make loans to the Company under a Parent Loan Facility in accordance with the terms
thereof pursuant to the immediately preceding clause (y) if the pledge of all unencumbered Company Owned Parent Shares to support
the Company Margin Facility would not be sufficient to reduce the LTV Ratio under the Margin Loan Agreement to 30% (and the LTV Ratio
is not otherwise reduced to 30% pursuant to the preceding clause (x)); provided further that, if at the time the Parent is required to
make a loan to the Company pursuant to this Section 5.22(f) there is or after giving effect to such loan would be a Company
Liquidity Event (as defined in the Stockholders and Letter Agreement Amendment), the amount of such loans shall be an amount sufficient
to reduce the LTV Ratio to 40% rather than 30%.
Section 5.23 Financing
Cooperation.
(a) Prior
to the Closing Date, the Company shall, and shall cause its Subsidiaries to, and shall direct its and their respective Representatives
to, in each case, use reasonable best efforts to provide all cooperation reasonably requested by Parent in connection with Parent’s
financing arrangements for long term debt for borrowed money, as Parent may reasonably determine necessary or advisable. Such cooperation
shall include, to the extent reasonably requested by Parent, using reasonable best efforts to furnish Parent and any of its financing
sources with (A) customary authorization and representation letters in connection with such financing arrangements in form and substance
reasonably satisfactory to the Company, (B) information with respect to the Company and its Subsidiaries reasonably requested by
Parent or any of its financing sources to facilitate such financing arrangements, including reasonably assisting Parent in connection
with the preparation of pro forma financial information to be included in any applicable offering document (provided nothing in this
Agreement shall be deemed to require the Company to prepare any pro forma financial statements or projections, including pro forma cost
savings, synergies, capitalization or other pro forma adjustments desired to be incorporated into any pro forma financial information)
and (C) such other customary financial information that may reasonably be requested by Parent; provided that in no case shall the
Company or its Subsidiaries or its Representatives be obligated to provide any financial information with respect to the Company and
its Subsidiaries that is publicly available. The Company shall, promptly upon written request of by the Company, be reimbursed by Parent
for any reasonable and documented expenses incurred or otherwise payable by the Company or any of its Subsidiaries or its Representatives
in connection with its cooperation and other obligations pursuant to this Section 5.23.
(b) Notwithstanding
the foregoing, the Company and its Subsidiaries and their respective Representatives shall not be required to enter into any agreement,
document, certificate or instrument pursuant to this Section 5.23 (other than customary authorization and representation
letters in form and substance reasonably satisfactory to the Company in connection with the financing arrangements contemplated by Section 5.23(a))
that will be effective prior to the Closing and nothing in this Section 5.23 shall require (i) such cooperation to the
extent it would unreasonably interfere with the business or operations of the Company or any of its Subsidiaries or require any of them
to take any actions that would reasonably be expected to violate applicable law or any organizational document of the Company or any
of its Subsidiaries, (ii) the Company or any of its Subsidiaries to pay or incur any commitment or other fee, cost or expense (other
than customary expenses in connection with the cooperation described in this Section 5.23 that are promptly reimbursed by
Parent) for which it is not indemnified hereunder, (iii) the Company or any of its Subsidiaries to incur any other liability or
provide or agree to provide any indemnity for which it is not indemnified hereunder or that is not conditioned upon the Closing, (iv) the
Company or any of its Subsidiaries to disclose any information (A) that is subject to attorney client or similar privilege or constitutes
attorney work product, (B) the disclosure of which (x) is prohibited by any Company Material Contract not entered into for
the purpose of qualifying for the exclusion in this clause (B) or (y) would cause the incurrence of any cost or
expense not subject to reimbursement by Parent or any of its Subsidiaries pursuant to Section 5.23(a), (v) the Company
or any of its Subsidiaries to cooperate in a manner that would cause any representation or warranty in this Agreement to be breached
by the Company or any of its Subsidiaries, (vi) any director, officer or employee or stockholder of the Company or any of its Subsidiaries
to incur any personal liability or (vii) the preparation of any financial statements that are not available to it and prepared in
the ordinary course of its financial reporting practice.
(c) Parent
shall indemnify and hold harmless the Company and its Subsidiaries and their respective Representatives from and against any and all
losses, claims, damages, liabilities and expenses, including the reasonable and documented fees, charges and disbursements of counsel,
incurred by them in connection with, or as a result of, any actions taken pursuant to this Section 5.23, except in the event
such losses, claims, damages, liabilities or expenses arise out of (i) gross negligence, willful misconduct, fraud or bad faith
by the Company or any of its Subsidiaries or their respective Representatives, in each case, as determined by a court of competent jurisdiction
in a final and non-appealable judgment or (ii) the material inaccuracy of any written information (standing on its own) provided
to Parent in writing by the Company or any of its Subsidiaries specifically for inclusion in any materials relating to Parent’s
financing arrangements.
(d) The
Company hereby consents to the reasonable use of its and its Subsidiaries’ logos in connection with the financing arrangements
contemplated by this Section 5.23 so long as such logos are used solely in a manner that is not intended or reasonably likely
to harm, disparage or otherwise adversely affect the Company or any of its Subsidiaries or the reputation or goodwill of the Company
or any of its Subsidiaries and its or their respective marks.
(e) Notwithstanding
anything in this Agreement to the contrary in no event shall the receipt or availability of any funds or financing by or to Parent or
any of its Affiliates or any other financing transaction be a condition to any of Parent’s, Merger Sub’s or Merger LLC’s
obligations hereunder.
Section 5.24 GCI
Divestiture.
(a) Prior
to the Effective Time (with the exact timing prior to the Effective Time to be determined by the Company (and the Company shall keep
Parent reasonably apprised of such timing)), the Company shall, and shall cause its Subsidiaries to, divest the business of GCI Spinco,
GCI and their respective Subsidiaries (the “GCI Business”), by way of a dividend to the Company Stockholders (unless
Parent (acting at the direction of the Parent Special Committee) consents to different terms) in accordance with the principles set forth
in Section 5.24 of the Company Disclosure Letter (the “Separation Principles”) and otherwise on terms
mutually acceptable to Parent and the Company with each acting reasonably (such transaction or series of transactions contemplated by
this clause (a), collectively, the “GCI Divestiture”). Notwithstanding anything in this Agreement to the contrary,
including in Section 5.1, Section 5.3 and Section 5.4, the Company and its Subsidiaries shall take
such actions and engage in such conduct as the Company shall reasonably determine are necessary, advisable or appropriate that are not
in inconsistent with this Section 5.24 or the Separation Principles to pursue, negotiate, discuss, enter into, announce,
perform and consummate a GCI Divestiture. In furtherance of the foregoing:
(i) the
Company shall, and shall cause its Subsidiaries to, (A) keep Parent reasonably informed of all material preparations in connection
with, and the status of, the GCI Divestiture, (B) give Parent and its Representatives reasonable time and opportunity to review
and comment upon any proposed terms and conditions of, or Contract relating to, the GCI Divestiture, or any filings with Governmental
Authorities relating thereto (which Contracts shall be consistent in all material respects with the Separation Principles), (C) not
enter into, amend, modify, terminate or cancel any Contract relating to the GCI Divestiture that is inconsistent with this Section 5.24
or the Separation Principles without the prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed),
and (D) in respect of any Contract relating to the GCI Divestiture, not agree to any non-compete, non-solicitation or other restrictive
covenant that would or would reasonably expected to bind or restrict, or give the counterparty rights in respect of, the conduct of the
business of Parent and its Subsidiaries following the Effective Time or cover businesses or operations of the Company and its Subsidiaries
greater than the scope of the existing operations of the GCI Business;
(ii) (A) the
Company shall, and shall cause its Subsidiaries to, and Parent shall, and shall cause its Subsidiaries to, reasonably consult and reasonably
cooperate with the other Party and its Subsidiaries throughout the planning process with respect to the structure and any internal restructuring
steps necessary, appropriate or advisable (as reasonably determined by the Company) to effect the GCI Divestiture, and (B) the Company
shall, and shall cause its Subsidiaries to, provide Parent a reasonable opportunity to review and comment on any step plan structuring
the sequence of the GCI Divestiture and any such internal restructuring steps;
(iii) the
Company shall cause GCI or another applicable Subsidiary of the Company determined to be the publicly traded parent company with respect
to the GCI Business following the closing of the GCI Divestiture (“GCI Spinco”) to (A) file a registration statement
on Form 10 (or such other registration statement under the Exchange Act or the Securities Act) with the SEC to effect the registration
of shares of such entity pursuant to the Exchange Act at such time as the Company shall reasonably determine in order to permit the consummation
of the GCI Divestiture prior to the Effective Time, (B) file any amendments or supplements to such Form 10 (or such other registration
statement) as may be necessary or advisable in order to cause the Form 10 (or such other registration statement) to become and remain
effective as required by the SEC or federal, state or other applicable securities Laws, and (C) take all such actions as may be
necessary or, in the reasonable determination of the Company, appropriate under the securities or blue sky Laws of the United States
(and any comparable Laws under any foreign jurisdiction) in connection with the GCI Divestiture;
(iv) the
Company shall make all required filings with the FCC and State Commissions, and take all such actions as may be necessary or appropriate,
in connection with the transfer of control and/or assignment of the Communications Licenses held by GCI or its Subsidiaries, and shall
enter into the GCI Divestiture Documents with GCI, in each case, at such time as the Company shall reasonably determine in order to permit
the consummation of the GCI Divestiture prior to the Effective Time;
(v) upon
consummation of the GCI Divestiture, the Company shall ensure that none of the Company or any of its Non-GCI Subsidiaries have (A) any
Indebtedness or other liability in respect of any GCI Debt or (B) any Encumbrance on any of their respective assets or property
securing any GCI Debt (and, solely to the extent the Company or any Subsidiary (excluding GCI and its Subsidiaries) have any Indebtedness
or other liability in respect of any GCI Debt at any time prior to the consummation of the GCI Divestiture, the Company shall deliver
customary payoff letters, guarantee releases, lien terminations, releases and instruments and acknowledgements of discharge, as applicable,
in each case in form and substance reasonably satisfactory to Parent on behalf of the Persons to whom such GCI Debt is owed); and
(vi) subject
to Section 5.24(a)(i)(B), Section 5.24(a)(i)(C) and Section 5.24(c), the Company, GCI Spinco,
GCI and their respective Subsidiaries shall have the right to enter into such Contracts that are necessary, appropriate or advisable
to effect the GCI Divestiture and that are not inconsistent with the other provisions of this Section 5.24 or the Separation
Principles, including any Contracts that are required to be entered into by existing Contracts between the Company or any of its Subsidiaries,
on the one hand, and any other Person, on the other hand.
(b) Except
for any transaction in the ordinary course of business consistent with past practice between the Company or any of its Non-GCI Subsidiaries,
on the one hand, and GCI or any of its Subsidiaries, on the other hand, from the date of this Agreement until the earlier of the Effective
Time and the consummation of the GCI Divestiture, the Company and its Subsidiaries shall (i) conduct the operations and business
of the GCI Business solely in GCI Spinco, GCI and any of their respective Subsidiaries, and (ii) not enter into any Contract between
the Company and the Non-GCI Subsidiaries, on the one hand, and GCI Spinco, GCI and any of their respective Subsidiaries, on the other
hand that cannot be terminated in connection with the GCI Divestiture without Liability (other than (x) any Tax Liability resulting
from or in connection with the GCI Divestiture expressly contemplated by the Separation Principles or (y) any de minimis
Liabilities or reasonable fees, cost and expenses of advisors and legal counsel) to the Company and the Non-GCI Subsidiaries, other than
any documents entered into in connection with the GCI Divestiture in accordance with Section 5.24, the Separation Principles,
the GCI Divestiture Documents and as may be mutually agreed by Parent and the Company.
(c) For
the avoidance of doubt, without limiting the generality of the foregoing, any agreements entered into by the Company or its Subsidiaries
relating the GCI Divestiture shall be reasonably acceptable to Parent (it being understood Parent cannot withhold its consent if such
agreements are consistent with this Section 5.24 or the Separation Principles) and shall provide, in accordance with the
Separation Principles, that GCI Spinco, GCI and their respective Subsidiaries shall be responsible for all Liabilities and obligations
(other than any Tax Liability resulting from or in connection with the GCI Divestiture expressly contemplated by the Separation Principles)
incurred or accrued by GCI or any of its Subsidiaries in the operation of the GCI Business, whether accruing or arising prior to, on
or after the effective time of the GCI Divestiture.
(d) The
Company may make reasonable adjustments to the Company Equity Awards outstanding at the time of a GCI Divestiture, as applicable (which
adjustments may vary by award type and award holder) in order to preserve the value of such awards as of immediately prior to and immediately
following the GCI Divestiture, as determined by the Company Board (or an authorized committee thereof) in consultation with Parent, in
accordance with the adjustment provisions of the applicable Company Stock Plan under which the Company Equity Award was issued and which
adjustments shall be consistent in all material respects with the Separation Principles.
(e) Immediately
prior to the Closing, Parent shall enter into a joinder (in a form reasonably acceptable to the Company and Parent), effective immediately
after Closing, to the GCI Divestiture Tax Sharing Agreement, the GCI Divestiture Separation and Distribution Agreement, and the GCI Divestiture
Tax Receivables Agreement, as provided in the Separation Principles.
(f) Without
limiting the generality of the foregoing, if, no later than December 31, 2025, the Company in good faith determines that the GCI
Divestiture is not reasonably capable of being achieved prior to June 30, 2027 on the terms set forth in this Section 5.24
and the Separation Principles and in compliance with applicable Law solely as a result of any of the events set forth in Section 5.24(f) of
the Company Disclosure Letter, then the Company and Parent will consider in good faith alternative courses of action, including but not
limited to, formal or informal debt refinancing actions (such alternative actions, a “GCI Event”). The provisions
of Sections 5.24(a), 5.24(b) and 5.24(c) shall apply mutatis mutandis to a GCI Event; provided
that none of the Company, GCI or their Subsidiaries shall take any material step in furtherance of a GCI Event, propose a GCI Event
to any third party creditor or enter into any binding agreement with respect to a GCI Event without the consent of Parent (not to be
unreasonably withheld, conditioned or delayed). Upon completion of a GCI Event on terms mutually agreed by Parent and the Company,
such GCI Event shall be deemed to constitute a GCI Divestiture for all purposes hereunder.
Section 5.25 Termination
of Affiliate Contracts. Effective upon the Closing, the Company shall terminate all Affiliate Contracts, other than the Transaction
Documents and those listed on Section 5.25 of the Company Disclosure Letter, without further liability to Parent, the Company
or any of their respective Subsidiaries.
Section 5.26 Voting
of Parent Common Stock. Subject to the Stockholders Agreement, including any voting limitations or restrictions therein, the Company
shall vote all shares of Parent Common Stock beneficially owned by it or any of its Subsidiaries as of the record date for the Parent
Stockholders Meeting, if any, in favor of (a) approval of the Stock Issuance and (b) any proposal to adjourn or postpone the
Parent Stockholders Meeting to a later date if there are not sufficient votes to approve the Stock Issuance or this Agreement and the
transactions contemplated hereby, including the Merger, and the Company shall cause all such shares to be present at the Parent Stockholders
Meeting for quorum purposes.
Section 5.27 Waiver
of Conflicts Regarding Representation.
(a) The
Parties agree that, notwithstanding any current or prior representation of (i) the Company (which, for the avoidance of doubt, excludes
the Surviving Corporation and the Surviving Company) or any of its Subsidiaries, or any and all of their respective predecessors and
successors, (ii) officers or directors of the Company or any of its Subsidiaries as of immediately prior to the Effective Time,
(iii) former members of the Company Board, (iv) the Malone Group, (v) the Maffei Group, (vi) Liberty Media or (vii) any
Covered Person (collectively, the “Represented Persons”) or any of their respective Affiliates by O’Melveny,
Baker Botts, Potter Anderson, Sherman or Skadden, each of O’Melveny, Baker Botts, Potter Anderson, Sherman and Skadden will be
allowed to represent any of the Represented Persons or any of their respective Affiliates in any matters or disputes that, directly or
indirectly, arise out of or relate to (x) the Transaction Documents or any of the transactions and matters contemplated hereby or
thereby (including the transactions contemplated by the Voting Agreement) or (y) the GCI Divestiture (any such matter or dispute,
a “Post-Closing Representation”). Parent does hereby, and agrees to cause its controlled Affiliates (and agrees to
use its reasonable best efforts to cause its other Affiliates) to, (A) agree that O’Melveny, Baker Botts, Potter Anderson,
Sherman and Skadden may each represent (and none of Parent or any of its Affiliates or Representatives will seek to disqualify or otherwise
prevent O’Melveny, Baker Botts, Potter Anderson, Sherman or Skadden from representing) any of the Represented Persons or such Affiliates
in connection with a Post-Closing Representation and (B) waive any claim they have or may have that O’Melveny, Baker Botts,
Potter Anderson, Sherman or Skadden has a conflict of interest or is otherwise prohibited from engaging in a Post-Closing Representation,
even if, in any case, the interests of the Represented Persons or such Affiliates may be directly adverse to Parent or its Affiliates
and even though O’Melveny, Baker Botts, Potter Anderson, Sherman or Skadden may have represented the Represented Persons or such
Affiliates in a matter substantially related to such dispute, or may be handling ongoing matters for any of the Represented Persons or
such Affiliates.
(b) Parent
acknowledges and agrees, on behalf of itself and its Affiliates, that (i) all Protected Information and all Privileged Information
(and, in each case, all rights and privileges related thereto) shall, subject to the terms of this Section 5.27, be excluded
from the assets possessed by the Company and its Subsidiaries at and after the Effective Time and shall be controlled and solely owned
by Liberty Media on behalf of all Represented Persons for all purposes of this Section 5.27 and Section 1 of the Liberty
Media Side Letter, and shall not pass to or be claimed by the Surviving Company, Surviving Corporation, Parent or its Affiliates, and
(ii) notwithstanding Section 5.8 above, neither the Company nor any of its Affiliates or Representatives shall be obligated
to provide Parent or any of its Affiliates, or any of their respective Representatives, with access to any Protected Information or any
Privileged Information, in each case, other than as provided in Section 5.27(c) below.
(c) To
the extent access to (i) some of the Protected Information (other than Privileged Information) described in clause (i), (ii) or
(iii) of the definition thereof is reasonably necessary (upon the advice of Parent’s external legal counsel acting
reasonably) or (ii) some of the Protected Information described in clause (i), (ii) or (iii) of the
definition thereof that constitutes Privileged Information is reasonably necessary, in either case, for or in furtherance of Parent’s
or its applicable Affiliates’ (A) defense against (or prosecution of) any Action brought by or against (as applicable) any
third Person (which for the avoidance of doubt shall exclude the Represented Persons and their Affiliates), (B) only as to Protected
Information that is not Privileged Information, defense against (which may include bringing counterclaims) any Action brought by any
Represented Persons or any of their Affiliates (for the avoidance of doubt, in the case of clauses (A) and (B), including
in connection with Parent’s or its Subsidiaries’ obligations under Section 5.11(a) and Section 5.11(b))
or (C) compliance with reporting, filing or other legal or regulatory requirements imposed on Parent or such Affiliates by a Governmental
Authority having jurisdiction over Parent or such Affiliates with respect to such matters, including for the avoidance of doubt through
a discovery process in which the applicable Governmental Authority requires production of such Protected Information (each of clause
(A), (B) or (C), a “Permitted Parent Access Circumstance”), Parent or such Affiliates, as applicable,
shall be permitted by Liberty Media (who, as described in Section 5.27(b) shall, subject to the terms of this Section 5.27,
have sole ownership and control of all Protected Information and all Privileged Information (and, in each case, all rights and privileges
related thereto) on behalf of all Represented Persons for all purposes of this Section 5.27 and Section 1 of the Liberty
Media Side Letter) access solely to such reasonably necessary portion of the Protected Information (“Necessary Information”);
provided, that, with respect to any such Necessary Information that also constitutes Privileged Information, (1) with respect
to any Permitted Parent Access Circumstance described in clause (A) or (C) above, such Privileged Information
will only be made available to Parent or its applicable Affiliates if Parent agrees not to (and does not), and agrees to use reasonable
best efforts to cause its Affiliates and Representatives not to (and they do not), disclose or use, or allow to be disclosed or used,
any such Privileged Information for any purpose, whatsoever, other than the applicable Permitted Parent Access Circumstance described
in clause (A) or (C) above, and (2) under no circumstances will access to such Privileged Information be
deemed reasonably necessary in connection with a Permitted Parent Access Circumstance described in clause (B) above. To the
extent any Privileged Information may be accessed pursuant to this Section 5.27(c), Parent and Liberty Media shall use reasonable
best efforts and cooperate with each other to enter into customary and reasonable joint defense, confidentiality, or similar arrangements
that, to the extent reasonably practicable, will preserve and protect the privileged nature of such Privileged Information from being
waived or impaired.
(d) For
the avoidance of doubt, except as expressly provided in Section 5.27(c), none of Parent, the Surviving Corporation, the Surviving
Company or their respective Affiliates will have any rights or access to any Protected Information or any Privileged Information, wherever
maintained. Further, notwithstanding Section 5.27(c), none of Parent, the Surviving Corporation, the Surviving Company or
their respective Affiliates will have any rights or access to any Privileged Information in the files of O’Melveny, Baker Botts,
Potter Anderson, Sherman or Skadden (for clarity, this sentence does not impact any rights or access to any such Privileged Information
other than in the files of such law firms (even if also in the files of such law firms)).
(e) This
Section 5.27 shall not apply to any information properly obtained by Parent or its Affiliates or their respective Representatives
other than pursuant to Section 5.27(c) and without any breach of this Agreement. Further, nothing contained in this
Section 5.27 is intended to, and this Section 5.27 shall not in any respect, limit or expand the rights and obligations
of the Parties pursuant to Section 5.3 or Section 5.4 hereof. For the avoidance of doubt, to the extent a Governmental
Authority with jurisdiction over a relevant proceeding determines (notwithstanding the express intent of the Parties set forth in this
Section 5.27) to grant access to, or use of, any Protected Information (including Privileged Information) to which Parent
or its applicable Affiliates would not otherwise have the right to access or use pursuant to Section 5.27(c), such access
or use will be limited to that which has been mandated or determined by such Governmental Authority and will not serve as a basis to
restrict or limit any other rights or protections specified herein.
(f) This
Section 5.27 will be irrevocable, and no term of this Section 5.27 may be amended, waived or modified in respect
of any Protected Information or any Privileged Information without the prior written consent of Liberty Media, on behalf of the Represented
Persons. Any such amendment, waiver or modification of this Section 5.27 as to which no such consent is obtained shall be
null and void. This Section 5.27 is for the benefit of the applicable Represented Persons, Liberty Media and their respective
Affiliates, each of which is an intended third-party beneficiary of this Section 5.27 and will be entitled to enforce this
Section 5.27 against the Parties hereto in such capacity.
(g) For
all purposes of this Section 5.27 and Section 1 of the Liberty Media Side Letter, (i) references to Affiliates
of Parent shall include the Surviving Corporation following the Effective Time and the Surviving Company following the Upstream Effective
Time, and (ii) references to Affiliates of the Malone Group shall include The Tracy M. Amonette Trust A (also known as The Tracy
L. Neal Trust A) and The Evan D. Malone Trust A.
Article VI
CONDITIONS
PRECEDENT
Section 6.1 Conditions
Precedent to the Obligations of Each Party. The respective obligations of each Party to effect the Merger shall be subject to the
satisfaction, or, to the extent permitted by Law, waiver in writing by each of Parent (acting at the direction of the Parent Special
Committee) and the Company (provided, that the conditions set forth in clauses (b) and (d) shall not be
waivable), at or prior to the Closing, of the following conditions:
(a) Company
Stockholder Approval. The Company Stockholder Approval shall have been obtained.
(b) Company
Disinterested Stockholder Approval. The Company Disinterested Stockholder Approval shall have been obtained.
(c) Parent
Stockholder Approval. The Parent Stockholder Approval shall have been obtained.
(d) Parent
Disinterested Stockholder Approval. The Parent Disinterested Stockholder Approval shall have been obtained.
(e) Competition
Law Approval. To the extent applicable, any waiting period (and any extension thereof), and any commitments by the Parties not to
close before a certain date under a timing agreement entered into with a Governmental Authority, applicable to the consummation of the
Mergers or any Company Representative’s conversion of Company Capital Stock pursuant to Section 2.6 under the HSR Act shall
have expired or early termination thereof shall have been granted.
(f) No
Injunction or Restraints. No Order or Law entered, enacted, promulgated, enforced or issued by any court or other Governmental Authority
of competent jurisdiction, shall be in effect which prevents, prohibits, renders illegal or enjoins the consummation of the Combination
or any of the other transactions contemplated by any of the Transaction Documents.
(g) Registration
Statement. The Registration Statement shall have become effective under the Securities Act, and no stop order or proceedings seeking
a stop order shall have been initiated by the SEC and not rescinded.
(h) Listing.
The shares of Parent Class A Common Stock and Parent Preferred Stock issuable to the Company Stockholders in connection with the
Merger as provided in Article II shall have been authorized for listing on Nasdaq, subject to official notice of issuance.
Section 6.2 Conditions
Precedent to the Obligations of Parent, Merger Sub and Merger LLC. The obligations of Parent, Merger Sub and Merger LLC to effect
the Combination shall be subject to the satisfaction, or, to the extent permitted by Law, waiver in writing by Parent (acting at the
direction of the Parent Special Committee), at or prior to the Closing of the following conditions:
(a) Representations
and Warranties.
(i) The
representations and warranties of the Company contained in Sections 3.1 (Organization; Standing and Power), 3.2 (Capitalization),
3.3 (Subsidiaries), 3.4 (Authorization), 3.8(a) (Absence of Certain Changes), 3.18 (Anti-Takeover Statutes),
3.19 (Ownership in Parent) and 3.20 (Brokers and Other Advisors) shall be true and correct in all respects (other than
in the case of the representations and warranties in the first sentence of clause (b), clause (d) and clause (e) of
Section 3.2, each of which shall be true and correct other than de minimis inaccuracies, and clause (c) of
Section 3.3, which shall be true and correct in all material respects) as of the date of this Agreement and as of the Closing
Date as though made on and as of such date (except to the extent that any such representation and warranty expressly speaks as of an
earlier date, in which case, as of such earlier date).
(ii) The
other representations and warranties of the Company contained in this Agreement shall be true and correct in all respects (disregarding
all materiality and “Company Material Adverse Effect” qualifiers contained therein) as of the date of this Agreement and
as of the Closing Date as though made on and as of such date (except to the extent such representations and warranties speak as of an
earlier date, in which case, as of such earlier date), except where all failures of such representations and warranties referred to in
this clause (ii) to be true and correct have not had, and would not, individually or in the aggregate, reasonably be expected
to have a Company Material Adverse Effect.
(b) Performance
of Obligations of the Company. The Company shall have performed, in all material respects, its covenants and agreements required
to be performed by it under this Agreement at or prior to the Closing Date.
(c) GCI
Divestiture. The GCI Divestiture shall have been completed.
(d) Officer’s
Certificate. Parent, Merger Sub and Merger LLC shall have received a certificate of an executive officer of the Company as to the
satisfaction of the conditions set forth in Sections 6.2(a), 6.2(b) and 6.2(c).
(e) Tax
Opinion. Parent shall have received the opinion of Wachtell Lipton (or other nationally recognized counsel reasonably acceptable
to Parent) (“Parent Tax Counsel”), addressed to Parent and dated as of the Closing Date, in form and substance reasonably
satisfactory to Parent, to the effect that, based upon the Tax Opinion Representations and any other facts, representations and assumptions
set forth or referred to in such opinion, and subject to such qualifications and limitations as may be set forth in such opinion, for
U.S. federal income tax purposes, (i) the Combination will qualify as a “reorganization” within the meaning of Section 368(a) of
the Code, (ii) no gain or loss will be recognized by holders of Company Common Stock pursuant to the Combination (other than with
respect to the receipt of GCI Spinco stock, cash received in lieu of fractional shares of GCI Spinco stock, cash received in lieu of
Fractional Shares, or cash paid in respect of Dissenting Shares) under Sections 354 and 356 of the Code, and (iii) no gain or loss
(other than, for the avoidance of doubt, gain or loss recognized on the receipt of or distribution of property other than Parent Capital
Stock) will be recognized by the Company on the deemed exchange of its assets for Parent Capital Stock in the Combination under Sections
361(a) or 361(b) of the Code. The condition set forth in this Section 6.2(e) shall not be waivable after the
effective date of the Registration Statement.
Section 6.3 Conditions
Precedent to the Obligations of the Company. The obligation of the Company to effect the Merger shall be subject to the satisfaction,
or, to the extent permitted by Law, waiver in writing by the Company, at or prior to the Closing of the following conditions:
(a) Representations
and Warranties.
(i) The
representations and warranties of Parent, Merger Sub and Merger LLC contained in Sections 4.1 (Organization; Standing and Power),
4.2 (Capitalization), 4.3 (Authorization), 4.7 (Absence of Certain Changes), 4.12 (Brokers and Other Advisors),
4.15 (Ownership of Company Common Stock) and 4.17 (Anti-Takeover Statutes) shall be true and correct in all respects (other
than in the case of the representations and warranties in the first sentence of clause (b) and clause (d) of
Section 4.2, each of which shall be true and correct other than de minimis inaccuracies) as of the date of this Agreement
and as of the Closing Date as though made on and as of such date (except to the extent that any such representation and warranty expressly
speaks as of an earlier date, in which case, as of such earlier date).
(ii) The
other representations and warranties of Parent, Merger Sub and Merger LLC contained in this Agreement shall be true and correct in all
respects (disregarding all materiality and “Parent Material Adverse Effect” qualifiers contained therein) as of the date
of this Agreement and as of the Closing Date as though made on and as of such date (except to the extent such representations and warranties
speak as of an earlier date, in which case, as of such earlier date), except where all failures of such representations and warranties
referred to in this clause (ii) to be true and correct have not had, and would not, individually or in the aggregate, reasonably
be expected to have a Parent Material Adverse Effect.
(b) Performance
of Obligations of Parent, Merger Sub and Merger LLC. Each of Parent, Merger Sub and Merger LLC shall have performed, in all material
respects, its covenants and agreements required to be performed by it under this Agreement at or prior to the Closing Date.
(c) Officer’s
Certificate. The Company shall have received a certificate of an executive officer of Parent as to the satisfaction of the conditions
set forth in Sections 6.3(a) and 6.3(b).
(d) Tax
Opinion. The Company shall have received the opinion of Skadden (or other nationally recognized counsel reasonably acceptable to
the Company) (“Company Tax Counsel”), addressed to the Company and dated as of the Closing Date, in form and substance
reasonably satisfactory to the Company, to the effect that, based upon the Tax Opinion Representations and any other facts, representations
and assumptions set forth or referred to in such opinion, and subject to such qualifications and limitations as may be set forth in such
opinion, for U.S. federal income tax purposes, (i) the Combination will qualify as a “reorganization” within the meaning
of Section 368(a) of the Code, (ii) no gain or loss will be recognized by holders of Company Common Stock pursuant to
the Combination (other than with respect to the receipt of GCI Spinco stock, cash received in lieu of fractional shares of GCI Spinco
stock, cash received in lieu of Fractional Shares, or cash paid in respect of Dissenting Shares) under Sections 354 and 356 of the Code,
and (iii) no gain or loss (other than, for the avoidance of doubt, gain or loss recognized on the receipt of or distribution of
property other than Parent Capital Stock) will be recognized by the Company on the deemed exchange of its assets for Parent Capital Stock
in the Combination under Sections 361(a) or 361(b) of the Code. The condition set forth in this Section 6.3(d) shall
not be waivable after the effective date of the Registration Statement.
Article VII
TERMINATION
Section 7.1 Termination.
This Agreement may be terminated, and the transactions contemplated hereby may be abandoned at any time prior to the Effective Time (and
except as set forth below notwithstanding the receipt of the Company Requisite Approvals, the Parent Requisite Approvals or the adoption
of this Agreement by Merger LLC as the sole stockholder of Merger Sub), as authorized by the Company Board or the Parent Special Committee
or the Parent Board (acting at the recommendation of the Parent Special Committee), as applicable, as follows:
(a) by
mutual written consent of each of Parent and the Company;
(b) by
either the Company or Parent if:
(i) subject
to Section 8.14, the Merger has not been consummated on or before August 31, 2027 or such other date and time mutually
agreed in writing between Parent and the Company (the “Drop Dead Date” ); provided, that the right to terminate
this Agreement pursuant to this Section 7.1(b)(i) shall not be available (x) to the Party seeking to terminate
this Agreement if such Party’s (in the case of Parent, including Merger Sub or Merger LLC) failure to comply in all material respects
with this Agreement has been a primary cause of the failure of the Effective Time to occur on or before the Drop Dead Date or (y) to
any Party during the pendency of any Action brought by the other Party to enforce the provisions of this Agreement;
(ii) any
Governmental Authority shall have issued or granted an Order or taken any other action permanently restraining, enjoining or otherwise
prohibiting the Merger, the Upstream Merger or the other transactions contemplated by the Transaction Documents and such Order or other
action is, or shall have become, final and non-appealable; provided, that the right to terminate this Agreement under this Section 7.1(b)(ii) shall
not be available to a Party if such Party’s (in the case of Parent, including Merger Sub or Merger LLC) failure to comply in all
material respects with its obligations under Section 5.9 has been a primary cause of the issuance of such Order or other
action;
(iii) the
Company Requisite Approvals shall not have been obtained at the Company Stockholders Meeting, or at any adjournment or postponement thereof,
at which a vote on the adoption of this Agreement was taken (the date on which such vote was taken, the “Company Vote Date”);
or
(iv) the
Parent Requisite Approvals shall not have been obtained at the Parent Stockholders Meeting, or at any adjournment or postponement thereof,
at which a vote on the Stock Issuance and this Agreement was taken (the date on which such vote was taken, the “Parent Vote
Date”).
(c) by
the Company:
(i) prior
to receipt of the Parent Requisite Approvals, if Parent, the Parent Board or the Parent Special Committee shall have made a Parent Adverse
Recommendation Change; or
(ii) if
(A) a breach of any representation or warranty or (B) failure to perform any covenant or agreement, in either case, on the
part of Parent, Merger Sub or Merger LLC set forth in this Agreement shall have occurred such that any condition set forth in Section 6.3(a) or
Section 6.3(b) would not reasonably be capable of being satisfied and such breach or failure is incapable of being cured
by the Drop Dead Date or, if curable, shall not have been cured by the earlier of the Drop Dead Date or the forty-fifth (45th) day after
written notice thereof from the Company shall have been received by Parent; provided, that the right to terminate this Agreement
under this Section 7.1(c)(ii) shall not be available to the Company if the Company has failed to comply with any of
its representations, warranties, covenants or agreements under this Agreement such that a condition set forth in Section 6.2(a) or
Section 6.2(b) would not be then satisfied, measured as of such time.
(d) by
Parent:
(i) prior
to receipt of the Company Requisite Approvals, if the Company or the Company Board shall have made a Company Adverse Recommendation Change;
or
(ii) if
(A) a breach of any representation or warranty or (B) a failure to perform any covenant or agreement, in either case, on the
part of the Company set forth in this Agreement shall have occurred such that any condition set forth in Section 6.2(a) or
Section 6.2(b) would not reasonably be capable of being satisfied and such breach or failure is incapable of being cured
by the Drop Dead Date, or, if curable, shall not have been cured by the earlier of the Drop Dead Date or the forty-fifth (45th) day after
written notice thereof from Parent shall have been received by the Company; provided, that the right to terminate this Agreement
under this Section 7.1(d)(ii) shall not be available to Parent if Parent, Merger Sub or Merger LLC has failed to comply
with any of its representations, warranties, covenants or agreements under this Agreement such that a condition set forth in Section 6.3(a) or
Section 6.3(b) would not be then satisfied, measured as of such time.
Section 7.2 Effect
of Termination. In the event of termination of this Agreement as provided in Section 7.1 (other than pursuant to Section 7.1(a)),
written notice thereof shall be given to Parent, in the case of termination by the Company, or to the Company, in the case of termination
by Parent, specifying the provisions hereof pursuant to which such termination is made and the basis therefor, and this Agreement shall
forthwith become null and void and of no effect and the obligations of the Parties under this Agreement shall terminate, without Liability
of any Party (or any stockholder, director, officer, employee, agent, consultant or Representative of such Party) to the other Parties
hereto; provided, that no termination of this Agreement pursuant to Section 7.1 shall relieve any Party from any Liability
or damages resulting from fraud in the making of the representations and warranties contained in this Agreement or Willful Breach by
such Party prior to such termination; provided, further, that the obligations and other provisions set forth in Section 5.13
(Expenses), this Section 7.2 and Section 7.3 (Payments), as well as Article VIII (Miscellaneous),
and the definitions of all defined terms appearing in such Sections or Article shall survive any termination of this Agreement.
No termination of this Agreement shall affect the rights and obligations of the Parties under the Confidentiality Agreement, which shall
survive termination of this Agreement in accordance with its terms.
Section 7.3 Payments.
(a) In
the event that prior to the Company Vote Date, Parent terminates this Agreement pursuant to Section 7.1(d)(i), then the Company
shall pay Parent a one-time fee equal to $460,000,000 (the “Termination Fee”) by wire transfer of immediately available
funds to an account designated by Parent within two (2) Business Days of the later of the date of such termination and the date
Parent identifies the account to which the Termination Fee shall be paid.
(b) In
the event that (i) this Agreement is terminated (A) by the Company or Parent pursuant to Section 7.1(b)(i) or
Section 7.1(b)(iii) or (B) by Parent pursuant to Section 7.1(d)(ii) and (ii) (A) at
any time after the date of this Agreement and prior to such termination (except in the case of a termination pursuant Section 7.1(b)(iii),
prior to the Company Vote Date), an Alternative Company Transaction Proposal shall have been publicly announced or publicly made known
to the Company Stockholders (or, in the case of a termination pursuant to Section 7.1(d)(ii), made known to the Company Board)
and not withdrawn (or, in the case of any Alternative Company Transaction Proposal that has been publicly announced or publicly made
known, not publicly withdrawn), and (B) within twelve (12) months after such termination, the Company or any of its Subsidiaries
shall have (x) entered into a definitive agreement with respect to any Alternative Company Transaction Proposal (regardless if consummated
during or subsequent to such twelve (12) month period) or (y) consummated any Alternative Company Transaction, then, in any such
event, the Company shall pay or cause to be paid to Parent the Termination Fee by wire transfer (to an account designated by Parent)
of immediately available funds at or prior to the later of (i) the earlier of the entry into such definitive agreement or the consummation
of such Alternative Company Transaction and (ii) two (2) Business Days after the date Parent identifies the account to which
the Termination Fee shall be paid; provided, that for purposes of this Section 7.3(b), each reference to twenty-five
percent (25%) in the definition of “Alternative Company Transaction”, including when used in the definition of “Alternative
Company Transaction Proposal” shall be replaced with a reference to fifty percent (50%).
(c) In
the event that, prior to the Parent Vote Date, the Company terminates this Agreement pursuant to Section 7.1(c)(i), then
Parent shall pay the Company the Termination Fee by wire transfer of immediately available funds to an account designated by the Company
within two (2) Business Days of the later of the date of such termination and the date the Company identifies the account to which
the Termination Fee shall be paid.
(d) In
the event that (i) this Agreement is terminated (A) by the Company or Parent pursuant to Section 7.1(b)(i) or
Section 7.1(b)(iv) or (B) by the Company pursuant to Section 7.1(c)(ii), and (ii) (A) at
any time after the date of this Agreement and prior to such termination (except in the case of a termination pursuant Section 7.1(b)(iv),
prior to the Parent Vote Date), an Alternative Parent Transaction Proposal shall have been publicly announced or publicly made known
to the Parent Stockholders (or, in the case of a termination pursuant to Section 7.1(c)(ii), made known to the Parent Board)
and not withdrawn (or, in the case of any Alternative Parent Transaction Proposal that has been publicly announced or publicly made known,
not publicly withdrawn), and (B) within twelve (12) months after such termination, Parent or any of its Subsidiaries shall have
(x) entered into a definitive agreement with respect to any Alternative Parent Transaction Proposal (regardless if consummated during
or subsequent to such twelve (12) month period) or (y) consummated any Alternative Parent Transaction Proposal, then, in any such
event, Parent shall pay or cause to be paid to the Company the Termination Fee by wire transfer (to an account designated by the Company)
of immediately available funds at or prior to the later of (i) the earlier of the entry into such definitive agreement or the consummation
of such Alternative Parent Transaction Proposal and (ii) two (2) Business Days after the date the Company identifies the account
to which the Termination Fee shall be paid; provided, that for purposes of this Section 7.3(d), each reference to
twenty-five percent (25%) in the definition of “Alternative Parent Transaction”, including when used in the definition of
“Alternative Parent Transaction Proposal” shall be replaced with a reference to fifty percent (50%).
(e) Each
of the Parties hereto acknowledges that (i) the agreements contained in this Section 7.3 are an integral part of the
transactions contemplated by this Agreement, and (ii) without these agreements, the Parties would not enter into this Agreement;
accordingly, if either Party fails to timely pay the Termination Fee pursuant to this Section 7.3 and, in order to obtain
such payment, the other Party commences a suit that results in a judgment against such Party for the payment of the applicable fee set
forth in this Section 7.3 and prevails, such Party shall pay the other Party its costs and expenses in connection with such
suit (including reasonable attorneys’ fees) together with interest on such amount at an annual rate equal to the prime rate established
in the Wall Street Journal in effect on the date such payment was required to be made through the date such payment was actually
received, or such lesser rate as is the maximum permitted by applicable Law.
(f) Subject
to Section 7.2, Section 7.3(e) and Parent’s right to specific performance set forth in Section 8.14,
(i) Parent’s right to receive payment of the Termination Fee pursuant to Section 7.3(a) shall be Parent,
Merger Sub and Merger LLC’s sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against the
Company, any of its Subsidiaries, or any former, current or future direct or indirect equity holder, controlling Person, general or limited
partner, stockholder, member, manager, director, officer, employee, agent, Affiliate, assignee or Representative of the Company or its
Subsidiaries (any such Person, other than the Company and its Subsidiaries, a “Company Recourse Related Party”) for
any damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated (other than any
such failure with respect to which no Company Termination Fee is payable), and (ii) upon payment of such Termination Fee to Parent
in a circumstance with respect to which such Termination Fee is payable pursuant to the terms hereof, neither Parent, Merger Sub nor
Merger LLC shall have any rights or claims against the Company or its Subsidiaries or any Company Recourse Related Party under this Agreement,
whether at law or equity, in contract, in tort or otherwise, and the Company shall have no further Liability to Parent or any of its
Subsidiaries with respect to this Agreement or the transactions contemplated hereby.
(g) Subject
to Section 7.2, Section 7.3(e) and the Company’s right to specific performance set forth in Section 8.14,
(i) the Company’s right to receive payment of the Termination Fee pursuant to Section 7.3(c) shall be the
Company’s sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against Parent, Merger Sub,
Merger LLC, any of their respective Subsidiaries, or any former, current or future direct or indirect equity holder, controlling Person,
general or limited partner, stockholder, member, manager, director, officer, employee, agent, Affiliate, assignee or Representative of
Parent, Merger Sub, Merger LLC or their respective Subsidiaries (any such Person, other than Parent, Merger Sub, Merger LLC and their
respective Subsidiaries, a “Parent Recourse Related Party”) for any damages suffered as a result of the failure of
the transactions contemplated by this Agreement to be consummated (other than any such failure with respect to which no Termination Fee
is payable to the Company by Parent), and (ii) upon payment of such Termination Fee to the Company in a circumstance with respect
to which such Termination Fee is payable pursuant to the terms hereof, the Company shall not have any rights or claims against Parent,
Merger Sub, Merger LLC or their respective Subsidiaries or any Parent Recourse Related Party under this Agreement, whether at law or
equity, in contract, in tort or otherwise, and Parent shall have no further Liability to the Company or any of its Subsidiaries with
respect to this Agreement or the transactions contemplated hereby.
Article VIII
MISCELLANEOUS
Section 8.1 Effectiveness
of Representations, Warranties and Agreements. Except as set forth in the next sentence, the respective representations, warranties,
covenants and agreements of the Parties contained herein or in any certificate delivered pursuant hereto prior to or at the Closing will
terminate at the Effective Time. The terms of Article I, Section 5.14, Section 5.27 and this Article VIII,
as well as the covenants and other agreements set forth in this Agreement that by their terms apply, or that are to be performed, in
whole or in part, after the Effective Time, shall survive the consummation of the Merger and the passing of the Effective Time. For the
avoidance of doubt, it is agreed and acknowledged by each of the Parties that the statements and representations set forth in the Company
Tax Opinion Representation Letter and the Parent Tax Opinion Representation Letter are made solely to Company Tax Counsel and Parent
Tax Counsel, as applicable, and are not intended to and shall not confer upon any of the Parties or any other Person any rights or remedies
(including serving as the basis of a claim for, or a defense against, any Action by any Party or other Person).
Section 8.2 Notices.
All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be deemed given (a) on
the date of delivery if delivered personally or sent via e-mail (provided, that no transmission error is received) or (b) on
the first (1st) Business Day following the date of dispatch if sent by a nationally recognized overnight courier (providing proof of
delivery), in each case to the Parties at the following addresses (or at such other address for a Party as shall be specified by like
notice):
if to Parent, Merger Sub, Merger LLC or the Parent Special
Committee, to:
Charter
Communications, Inc.
400 Washington Blvd.
Stamford, CT 06902
Attention: Executive Vice President, General Counsel and Corporate Secretary
Email: [Separately provided]
with a copy to (which shall not constitute notice):
Wachtell,
Lipton, Rosen & Katz
51 W 52nd St.
New York, NY 10019
Facsimile: (212) 403-1000
Attention: Steven A. Cohen
Steven
R. Green
Email: SACohen@wlrk.com
SRGreen@wlrk.com
if to the Company, to:
Liberty
Broadband Corporation
12300 Liberty Boulevard
Englewood, CO 80112
Attention: Chief Legal Officer
Email: [Separately provided]
with a copy to (which shall not constitute notice):
O’Melveny &
Myers LLP
1301 6th Ave Suite 1700
New York, NY 10019
Attention: C. Brophy Christensen
Noah
K. Kornblith
Email: bchristensen@omm.com
nkornblith@omm.com
Section 8.3 Entire
Agreement; No Third-Party Beneficiaries. This Agreement, the documents and the instruments referred to herein, the other Transaction
Documents and the Confidentiality Agreement constitute the entire agreement, and supersede all prior agreements and understandings, both
written and oral, among the Parties with respect to the subject matter hereof and neither Party is relying on any other oral or written
representation, agreement or understanding and no Party makes any express or implied representation or warranty in connection with the
transactions contemplated by this Agreement, in each case other than as set forth in this Agreement. This Agreement is not intended to
and shall not confer upon any Person other than the Parties any rights or remedies except as provided in Section 5.14 and
Section 5.27.
Section 8.4 Assignment.
Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned, in whole or in part, by
operation of Law or otherwise by any of the Parties hereto without the prior written consent of the other Parties; provided, that,
without the consent of any other party hereto, Liberty Media may assign all of its rights and obligations (in full, and together, not
in part or separately) under Section 5.27 (other than Section 5.27(a)) and Section 1 of the Liberty Media
Side Letter to any other Covered Person (who, at the time of such assignment is a publicly traded company on Nasdaq or the New York Stock
Exchange with a market capitalization of at least $2,000,000,000) and that irrevocably agrees to expressly assume all such rights and
obligations (including in respect of any breaches of such obligations by Liberty Media prior to such assignment) in a signed instrument
for the benefit of Parent and the Company (which must be delivered to Parent and the Company at least five (5) Business Days in
advance of the effective date of any such assignment), in which such assignee Covered Person and Liberty Media each represent and warrant
(without qualification or limitation) to Parent and the Company that such assignee Covered Person has sole ownership of and control over
all Protected Information (to the same degree as Liberty Media prior to such assignment) on behalf of all Represented Persons for all
purposes of Section 5.27 and Section 1 of the Liberty Media Side Letter and the wherewithal to be legally, financially
and practically capable of fulfilling the assumed obligations of Liberty Media (including in respect of any breaches of such obligations
by Liberty Media prior to such assignment), and following such delivery of such irrevocable written instrument to Parent and the Company
by Liberty Media and such Represented Person, upon the effectiveness of such assignment, Liberty Media shall be automatically replaced
with such Covered Person for all such purposes under Section 5.27 (other than Section 5.27(a)) and Section 1
of the Liberty Media Side Letter. For the avoidance of doubt, notwithstanding any such assignment, Liberty Media shall continue to be
a Represented Person in its own right under Section 5.27 and a third party beneficiary of Section 5.27 in such
capacity. Any assignment in violation of the preceding sentence shall be void. Subject to the preceding two sentences, this Agreement
will be binding upon, inure to the benefit of, and be enforceable by, the Parties and their respective successors and assigns.
Section 8.5 Amendment
and Supplements. This Agreement may be amended or supplemented at any time by additional written agreements signed by the Parties
(following, in the case of Parent, the approval of the Parent Special Committee and any approvals required under the Stockholders Agreement)
as necessary, desirable or expedient to further the purpose of this Agreement or to clarify the intention of the Parties, whether before
or after receipt of the Company Requisite Approvals, receipt of the Parent Requisite Approvals or adoption of this Agreement by Merger
LLC as sole stockholder of Merger Sub; provided, however, that, after the Company Requisite Approvals, the Parent Requisite
Approvals or the adoption of this Agreement by the sole stockholder of Merger Sub has been obtained, no amendment shall be made that
pursuant to applicable Law requires further approval or adoption by the Company Stockholders, the Parent Stockholders or the sole stockholder
of Merger Sub under applicable Law without such requisite approval or adoption. This Agreement may not be amended, modified or supplemented
in any manner, whether by course of conduct or otherwise, except by an instrument in writing specifically designated as an amendment
hereto, signed on behalf of each of the Parties in interest at the time of the amendment and, with respect to Section 5.14
and Section 5.27, any other Person whose consent is required to effect such amendment.
Section 8.6 Headings.
The headings and table of contents contained in this Agreement are for reference purposes only and shall not affect in any way the meaning
or interpretation of this Agreement.
Section 8.7 Waiver.
No provision of this Agreement may be waived except by a written instrument signed by the Party against whom the waiver is to be effective
(including, in the case of Parent, upon the approval of the Parent Special Committee); provided, however, that, after the
Company Requisite Approvals, the Parent Requisite Approvals or the adoption of this Agreement by Merger LLC as sole stockholder of Merger
Sub, no waiver shall be granted that pursuant to applicable Law requires further approval or adoption by the Company Stockholders, the
Parent Stockholders or Merger LLC under applicable Law without such requisite approval or adoption. Any agreement on the part of a Party
to any such waiver shall be valid only if set forth in a written instrument executed and delivered by a duly authorized officer on behalf
of such Party (including, in the case of Parent, upon the approval of the Parent Special Committee). No failure or delay by any Party
in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies provided
herein shall be cumulative and not exclusive of any rights or remedies provided by Law. For the avoidance of doubt, the conditions to
Closing set forth in Section 6.1(b) and Section 6.1(d) may not be waived.
Section 8.8 No
Additional Representations.
(a) Except
for the representations and warranties expressly made by the Company in Article III and in any certificate, document or agreement
to be delivered by the Company pursuant to this Agreement, neither the Company nor any other Person makes, and each of Parent, Merger
Sub and Merger LLC disclaims any reliance upon, any express or implied representation or warranty whatsoever or with respect to any information
provided or made available in connection with the transactions contemplated by this Agreement with respect to the Company and its Subsidiaries
and their respective assets, Liabilities and businesses, including any information, documentation, forecasts, budgets, projections or
estimates provided by the Company or any of its Representatives, including in any “data rooms” or management presentations
or the accuracy or completeness of any of the foregoing.
(b) Except
for the representations and warranties expressly made by Parent, Merger Sub and Merger LLC in Article IV and in any certificate,
document or agreement to be delivered by Parent, Merger Sub or Merger LLC pursuant to this Agreement, neither Parent, Merger Sub, Merger
LLC nor any other Person makes, and the Company disclaims any reliance upon, any express or implied representation or warranty whatsoever
or with respect to any information provided or made available in connection with the transactions contemplated by this Agreement with
respect to Parent, Merger Sub and Merger LLC or their respective assets, Liabilities or businesses, including any information, documentation,
forecasts, budgets, projections or estimates provided by Parent, Merger Sub, Merger LLC or any of their respective Representatives, including
the Parent Special Committee and its advisors, including in any “data rooms” or management presentations or the accuracy
or completeness of any of the foregoing.
Section 8.9 Counterparts.
This Agreement may be executed in one (1) or more counterparts, all of which shall be considered one (1) and the same agreement
and shall become effective when one (1) or more counterparts have been signed by each of the Parties and delivered to the other
Parties, it being understood that all Parties need not sign the same counterpart. The exchange of copies of this Agreement and of signature
pages by facsimile or e-mail shall constitute effective execution and delivery of this Agreement as to the Parties and may be used
in lieu of the original Agreement for all purposes. Signatures of the Parties transmitted by facsimile or e-mail shall be deemed to be
their original signatures for all purposes.
Section 8.10 Applicable
Law. All disputes, claims or controversies arising out of or relating to this Agreement, or the negotiation, validity or performance
of this Agreement, or the transactions contemplated hereby shall be governed by and construed in accordance with the Laws of the State
of Delaware without regard to its rules of conflict of Laws.
Section 8.11 Jurisdiction.
Each of the Parties hereto (a) irrevocably and unconditionally consents to submit itself to the sole and exclusive personal jurisdiction
of the Court of Chancery of the State of Delaware, or, solely if that court does not have subject matter jurisdiction, the Superior Court
of the State of Delaware, or, solely if the subject matter of the action is one over which exclusive jurisdiction is vested in the courts
of the United States of America, a federal court sitting in the State of Delaware and, in each case, any appellate courts therefrom (collectively,
the “Delaware Courts”) in connection with any dispute, claim, or controversy arising out of or relating to this Agreement
or the transactions contemplated hereby, (b) waives any objection to the laying of venue of any such litigation in any of the Delaware
Courts, (c) agrees not to plead or claim in any such court that such litigation brought therein has been brought in an inconvenient
forum and agrees not otherwise to attempt to deny or defeat such personal jurisdiction or venue by motion or other request for leave
from any such court, and (d) agrees that it will not bring any Action in connection with any dispute, claim, or controversy arising
out of or relating to this Agreement or the transactions contemplated hereby, in any court or other tribunal, other than the Delaware
Courts (in the manner and priority set forth in subsection (a) of this Section 8.11). All Actions arising out of or
relating to this Agreement or the transactions contemplated hereby shall be heard and determined in the Delaware Courts. Each of the
Parties hereto hereby irrevocably and unconditionally agrees that service of process in connection with any dispute, claim, or controversy
arising out of or relating to this Agreement or the transactions contemplated hereby may be made upon such Party by prepaid certified
or registered mail, with a validated proof of mailing receipt constituting evidence of valid service, directed to such Party at the address
specified in Section 8.2. Service made in such manner, to the fullest extent permitted by applicable Law, shall have the
same legal force and effect as if served upon such Party personally within the State of Delaware. Nothing herein shall be deemed to limit
or prohibit service of process by any other manner as may be permitted by applicable Law.
Section 8.12 Waiver
of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THE ACTIONS OF ANY PARTY HERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT OF THIS AGREEMENT. EACH PARTY CERTIFIES
AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) IT UNDERSTANDS AND HAS CONSIDERED
THE IMPLICATIONS OF SUCH WAIVER, (C) IT MAKES SUCH WAIVER VOLUNTARILY AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS Section 8.12.
Section 8.13 Joint
Participation in Drafting this Agreement. The Parties acknowledge and confirm that each of their respective attorneys have participated
jointly in the drafting, review and revision of this Agreement and that it has not been written solely by counsel for one Party and that
each Party has had the benefit of its independent legal counsel’s advice with respect to the terms and provisions hereof and its
rights and obligations hereunder. Each Party hereto, therefore, stipulates and agrees that the rule of construction to the effect
that any ambiguities are to be or may be resolved against the drafting Party shall not be employed in the interpretation of this Agreement
to favor any Party against another and that no Party shall have the benefit of any legal presumption or the detriment of any burden of
proof by reason of any ambiguity or uncertain meaning contained in this Agreement.
Section 8.14 Enforcement
of this Agreement. The Parties acknowledge and agree that irreparable damage would occur and that the Parties would not have any
adequate remedy at Law in the event that any of the provisions of this Agreement were not performed in accordance with their specific
terms or were otherwise breached and that monetary damages, even if available, would not be an adequate remedy therefor. It is accordingly
agreed that the Parties shall be entitled to an injunction or injunctions, or any other appropriate form of equitable relief to prevent
breaches of this Agreement (without the obligation to post a bond therefor) and to enforce specifically the terms and provisions of this
Agreement, this being in addition to any other remedy to which they are entitled at law or in equity. In the event that any Action shall
be brought by any Party in equity to enforce the provisions of this Agreement, no Party shall allege, and each Party hereby waives the
defense, that there is an adequate remedy at law or that the award of specific performance is not an appropriate remedy for any reason
of law or equity. Notwithstanding anything to the contrary contained herein, any determination by the Parent Board with respect to the
enforcement (or non-enforcement) of Parent’s rights hereunder shall be made only with the approval of the Parent Special Committee.
Notwithstanding anything to the contrary in this Agreement, if any Party brings an Action to enforce specifically the terms of this Agreement
(other than an action to specifically enforce any provision that expressly survives termination of this Agreement), the Drop Dead Date
shall automatically be extended to (i) the twentieth (20th) Business Day following the resolution of such Action or (ii) such
other time period established by the court presiding over such Action.
Section 8.15 Limited
Liability. Notwithstanding any other provision of this Agreement, no stockholder, director, officer, Affiliate, agent or Representative
of any Party (other than Parent as the sole member of Merger LLC and Merger LLC as the sole stockholder of Merger Sub) will have any
Liability for a breach of the covenants, obligations, representations or warranties of the Company or Parent, respectively, hereunder
or under any certificate or letter delivered by the Company or Parent, respectively, with respect thereto and, to the fullest extent
legally permissible, each Party, for itself and its stockholders, directors, officers and Affiliates, waives and agrees not to seek to
assert or enforce any such Liability which any such Person otherwise might have pursuant to applicable Law.
Section 8.16 Severability.
If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of Law or public
policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect, insofar as the foregoing
can be accomplished without materially affecting the economic benefits anticipated by the Parties and, in the case of the Company, the
Company Stockholders. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the
Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as
possible to the fullest extent permitted by applicable Law in an acceptable manner to the end that the transactions contemplated hereby
are fulfilled to the greatest extent possible.
Section 8.17 Incorporation
of Exhibits. All Exhibits and Schedules attached hereto and referred to herein are hereby incorporated herein and made a part hereof
for all purposes as if fully set forth herein. Notwithstanding the foregoing or any other provision of this Agreement to the contrary,
the Company Disclosure Letter and the Parent Disclosure Letter are “facts ascertainable” as that term is used in Section 251(b) of
the DGCL, and do not form part of this Agreement but instead operate upon the terms of this Agreement as provided herein.
Section 8.18 No
Joint Venture. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or partnership between
any of the Parties hereto. No Party is by virtue of this Agreement is authorized as an agent, employee or legal Representative of any
other Party. No Party shall have the power to control the activities and operations of any other and their status is, and at all times
shall continue to be, that of independent contractors with respect to each other. No Party shall have any power or authority to bind
or commit any other Party. No Party shall hold itself out as having any authority or relationship in contravention of this Section 8.18.
Section 8.19 Special
Committee Matters. Prior to the Effective Time, without the consent of the Parent Special Committee, as applicable, (a) the
Parent Board shall not eliminate, revoke or diminish the authority of, the Parent Special Committee or (b) remove or cause the removal
of any director of the Parent Board that is a member of the Parent Special Committee either as a member of the Parent Board or of the
Parent Special Committee, other than as a result of the failure of such director to be re-elected to the Parent Board at the applicable
annual meeting of the Parent Stockholders. For the avoidance of doubt, any amendment or waiver of, or consent required by this Agreement
by Parent or the Parent Board shall require the approval of the Parent Special Committee. The Parent Special Committee (and, for so long
as the Parent Special Committee is in existence, only the Parent Special Committee) may pursue any action or litigation with respect
to breaches of this Agreement by the Company on behalf of Parent.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties
hereto have executed this Agreement and Plan of Merger as of the date first above written.
| | CHARTER COMMUNICATIONS, INC. |
| | | |
| | By: | /s/
Jessica M. Fischer |
| | Name: |
Jessica M. Fischer |
| | Title: |
Chief Financial Officer |
| | FUSION MERGER SUB 2, INC. |
| | | |
| | By: | /s/ Jessica M. Fischer |
| | Name: |
Jessica M. Fischer |
| | Title: |
Chief Financial Officer |
| | FUSION MERGER SUB 1, LLC |
| | | |
| | By: | /s/ Jessica M. Fischer |
| | Name: |
Jessica M. Fischer |
| | Title: |
Chief Financial Officer |
| | LIBERTY BROADBAND CORPORATION |
| | | |
| | By: | /s/
Renee L. Wilm |
| | Name: |
Renee L. Wilm |
| | Title: |
Chief Legal Officer and Chief Administrative Officer |
Exhibit 10.1
Execution Version
VOTING AGREEMENT
This Voting Agreement (this
“Agreement”), dated as of November 12, 2024, is entered into by and among Charter Communications, Inc., a
Delaware corporation (“Parent”), Liberty Broadband Corporation, a Delaware corporation (the “Company”),
and each of the undersigned stockholders of the Company (each, a “Stockholder” and together, the “Stockholders”).
WHEREAS, subject to the terms
and conditions of the Agreement and Plan of Merger (as the same may be amended, supplemented or modified, the “Merger Agreement”),
dated as of the date hereof, among Parent, Fusion Merger Sub 1, LLC, a Delaware limited liability company and direct Wholly Owned Subsidiary
of Parent (“Merger LLC”), Fusion Merger Sub 2, Inc., a Delaware corporation and direct Wholly Owned Subsidiary
of Merger LLC (“Merger Sub”), and the Company, among other transactions contemplated by the Merger Agreement, Merger
Sub will be merged with and into the Company (the “Merger”), with the Company surviving the Merger as a Wholly Owned
Subsidiary of Parent, and immediately thereafter the Company will be merged with and into Merger LLC (the “Upstream Merger”),
with Merger LLC surviving the Upstream Merger as a direct Wholly Owned Subsidiary of Parent;
WHEREAS, as of the date of
this Agreement, each Stockholder owns beneficially (references herein to “beneficial owner,” “beneficial ownership”
and “owns beneficially” shall have the meanings assigned to such terms under Rule 13d-3 of the Securities Exchange Act
of 1934, and the rules and regulations promulgated thereunder, as amended from time to time, but without duplication of the conversion
of any shares of Company Series B Common Stock into Company Series A Common Stock in accordance with the Company Charter or
any shares of Company Series B Common Stock into Company Series C Common Stock (or vice versa) in accordance with the Exchange
Agreement), or of record, and, with respect to the Merger and the other transactions contemplated by the Merger Agreement, has the power
to vote or direct the voting of, certain shares of Company Series A Common Stock, Company Series B Common Stock and Company
Preferred Stock listed on Schedule A hereto (all such shares, the “Existing Shares”, and shares of Company Series A
Common Stock, shares of Company Series B Common Stock and shares of Company Preferred Stock referred to collectively as, the “Voting
Stock”); and
WHEREAS, as a condition and
inducement for Parent and the Company to enter into the Merger Agreement, Parent and the Company have required that each Stockholder,
in his, her or its capacity as a stockholder of the Company, enter into this Agreement, and each Stockholder has agreed to enter into
this Agreement.
NOW THEREFORE, in consideration
of the foregoing, the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, intending to be legally bound, the parties hereto agree as follows:
1. Definitions.
Capitalized terms not defined in this Agreement have the meaning assigned to those terms in the Merger Agreement.
2. Effectiveness;
Termination. This Agreement shall be effective upon signing. This Agreement shall automatically terminate upon the earliest to
occur (the “Expiration Date”) of (a) such date and time as the Merger Agreement shall have been validly terminated
in accordance with Article VII thereof, (b) the Effective Time, (c) the written agreement of Parent, the Company and the
Stockholders to terminate this Agreement and (d) the date of any material modification, waiver or amendment of the Merger Agreement
as in effect on the date of this Agreement that adversely affects the value or tax treatment of the consideration payable to the Stockholders
or causes such consideration to include any property other than (i) Parent Class A Common Stock for Company Common Stock (and
cash in lieu of Fractional Shares), (ii) Parent Preferred Stock for Company Preferred Stock, or adds new conditions or modifies any
existing conditions to the consummation of the Merger that materially adversely affect any Stockholder or the Merger, without the prior
written consent of Dr. Malone or (iii) property received or entitled to be received in connection with the GCI Divestiture; provided,
that (x) this Section 2 and Sections 10 through 26 of this Agreement shall survive any such
termination, and (y) such termination shall not relieve any party of any liability or damages resulting from (1) fraud or (2) Willful
Breach by such party prior to termination, in each case, as determined by a court of competent jurisdiction pursuant to a final and nonappealable
judgment. For purposes of this Agreement, (A) “fraud” means intentional and knowing common law fraud under Delaware
law in the representations and warranties set forth in this Agreement and (B) “Willful Breach” means a
material breach of a party’s covenants and agreements set forth in this Agreement that is the consequence of an act or omission
by a party with the knowledge that the taking of such act or failure to take such action would be a material breach of such party’s
covenants or agreements.
3. Voting
Agreement. From the date hereof until the Expiration Date (the “Support Period”), each Stockholder irrevocably
and unconditionally hereby agrees that at any meeting (whether annual or special and each postponement, recess, adjournment or continuation
thereof) of the Company Stockholders, however called, and in connection with any written consent of the Company Stockholders, such Stockholder
shall:
(a) appear at
such meeting or otherwise cause all of the Existing Shares and all other shares of Voting Stock or voting securities of the Company
over which he, she or it has acquired beneficial or record ownership after the date hereof or otherwise has the power to vote or
direct the voting of (including any shares of Voting Stock acquired by means of purchase, dividend or distribution, or issued upon
the exercise of any stock options to acquire Voting Stock or the conversion of any convertible securities, or pursuant to any other
equity awards or derivative securities or otherwise over which he, she or it has the power to vote) (together with the Existing
Shares, collectively, the “Shares”), which he, she or it owns or controls as of the applicable record date, to be
counted as present thereat for purposes of calculating a quorum; and
(b) subject
to Section 3(c), vote or cause to be voted (including by proxy or written consent, if applicable) all such Shares (i) in
favor of the adoption of the Merger Agreement and the approval of the transactions contemplated thereby, including the Merger, (ii) in
favor of any proposal to adjourn or postpone such meeting of the Company Stockholders to a later date if such adjournment or postponement
is proposed in compliance with the provisions of Section 5.7(e) of the Merger Agreement, (iii) against any action or proposal
in favor of any Alternative Company Transaction, without regard to the terms of such Alternative Company Transaction or (iv) against
any action, proposal, transaction, agreement or amendment of the Company Charter or Company Bylaws, in each case of this clause (iv), for
which the Stockholders have received prior notice from either Parent or the Company that it reasonably expects that such action, proposal,
transaction, agreement or amendment would (A) result in a breach of any covenant, representation or warranty or any other obligation
or agreement of the Company contained in the Merger Agreement, or of any Stockholder contained in this Agreement, or (B) prevent,
impede, interfere with, delay, postpone, or adversely affect the consummation of the transactions contemplated by the Merger Agreement,
including the Merger.
(c) Notwithstanding
anything to the contrary herein, if at any time during the Support Period the Company Board (or any duly authorized committee thereof)
makes a Company Adverse Recommendation Change pursuant to Section 5.4 of the Merger Agreement (the “Change of Recommendation
Event”), then the obligations, covenants and restrictions of the Stockholders set forth in Section 3(b) shall
be limited to the number of shares of Company Series A Common Stock, Company Series B Common Stock and Company Preferred Stock
held by the Stockholders equal in aggregate to the sum of (x) 33.37% of the total voting power of the Covered Company Voting Stock
minus (y) the total voting power of the Covered Company Voting Stock beneficially owned by the Maffei Group (such shares,
the “Covered Shares”); provided that if a Change of Recommendation Event occurs, notwithstanding any other obligations
hereunder, the Stockholders shall deliver a written consent executed on behalf of, or vote at any meeting of stockholders of the Company,
as applicable, their respective Shares that are not Covered Shares with respect to the adoption of the Merger Agreement and approval of
the transactions contemplated thereby, including the Merger, and any other matters described in Section 3(b) in the same
proportion as written consents executed or votes cast, as applicable, by the Company Stockholders other than the Stockholders and the
Maffei Group (such proportion determined without inclusion of the votes cast by the Stockholders and the Maffei Group) with respect to
any such matter; provided, further, that in the event of a Change of Recommendation Event, the Stockholders shall have the
right to determine which of the Shares held by the Stockholders will be included in the Covered Shares (it being understood that this
proviso is not intended to change the total number or percentage of Covered Shares as determined pursuant to this Section 3(c)).
For purposes of this Agreement, the “Covered Company Voting Stock” shall mean the total number of shares of Company
Series A Common Stock, Company Series B Common Stock and Company Preferred Stock outstanding as of the record date established
by the Company with respect to such action by written consent, or vote at any meeting of Company Stockholders, as applicable.
For the avoidance of doubt, the foregoing commitments
apply to any Shares held by any trust, limited partnership or other entity directly or indirectly holding Shares for which any Stockholder
serves as a partner, stockholder, trustee or in a similar capacity so long as, and to the extent, such Stockholder exercises voting control
over such Shares. To the extent any Stockholder does not have sole control of the voting determinations of such entity, such Stockholder
agrees to exercise all voting rights or other voting determination rights he, she or it has in such entity to carry out the intent and
purposes of his, her or its support and voting obligations in this paragraph and otherwise set forth in this Agreement. Each Stockholder
represents, covenants and agrees that, (x) except for this Agreement, he, she or it has not entered into, and shall not enter into
during the Support Period, any commitment, agreement, understanding or other similar arrangement with any person to vote or give instructions
in any manner with respect to any Shares, including any voting agreement or voting trust and (y) except as expressly set forth herein
or with respect to routine matters at an annual meeting of the Company Stockholders, he, she or it has not granted, and shall not grant
during the Support Period, a proxy, consent or power of attorney with respect to any Shares. Each Stockholder agrees not to enter into
any agreement or commitment with any person the effect of which would violate, or frustrate the intent of, the provisions of this Agreement.
In furtherance and not in limitation of the foregoing, but only in the event and in each case that a Stockholder fails to be counted as
present or fails to vote all of such Stockholder’s Shares in accordance with this Agreement until the Expiration Date, each Stockholder
hereby appoints Renee Wilm, for so long as she serves as Chief Legal Officer of the Company, or any other person acting as Chief Legal
Officer of the Company and any designee thereof, and each of them individually, its proxy and attorney-in-fact, with full power of substitution
and resubstitution, to vote or act by written consent (and to instruct nominees or record holders to vote or act by written consent) during
the Support Period with respect to any and all of such Stockholder’s Shares in accordance with this Section 3. This
proxy and power of attorney are given to secure the performance of the duties of such Stockholder under this Agreement. Each Stockholder
hereby agrees that this proxy and power of attorney granted by each such Stockholder shall be irrevocable until the Expiration Date, and
shall be deemed to be coupled with an interest sufficient under applicable Law to support an irrevocable proxy and shall revoke any and
all prior proxies granted by such Stockholder with respect to any Shares regarding the matters set forth in this Section 3.
The power of attorney granted by each Stockholder herein is a durable power of attorney and shall survive the bankruptcy, death or incapacity
of such Stockholder.
4. Non-Solicitation.
Each Stockholder hereby agrees, and agrees to cause his, her or its controlled Affiliates (which, for the avoidance of doubt, does not
include the Company or Parent) and its and their representatives not to, take any action which, were it taken by the Company or its Representatives,
would violate Section 5.3 or Section 5.4 of the Merger Agreement, it being understood that any action in compliance with Section 5.3
or Section 5.4 of the Merger Agreement shall not be deemed a breach by any Stockholder of this Section 4.
5. Transfer
Restrictions Prior to the Merger. Each Stockholder hereby agrees that he, she or it will not, during the Support Period, without
the prior written consent of Parent and the Company, (a) convert any shares of Company Series B Common Stock into shares of
Company Series A Common Stock or, other than pursuant to the Exchange Agreement or the Exchange Side Letter, into Company Series C
Common Stock (or vice versa), or (b) other than pursuant to this Agreement, the Exchange Side Letter, the Exchange Agreement or the
Merger Agreement, directly or indirectly, offer for sale, sell, transfer, exchange, convert, assign, give, tender in any tender or exchange
offer, pledge, encumber, hypothecate or otherwise dispose of (by merger, by testamentary disposition, by operation of Law or otherwise),
either voluntarily or involuntarily, enter into any swap or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of, enter into any contract, option or other arrangement or understanding with respect to the sale,
transfer, assignment, pledge, encumbrance, hypothecation or other disposition of (by merger, by testamentary disposition, by operation
of Law or otherwise) or otherwise convey or dispose of, any of the Shares, or any interest therein (including by merger, by testamentary
disposition, by operation of Law or otherwise), including the right to vote any such Shares, as applicable (a “Transfer”); provided,
that such Stockholder may Transfer Shares for estate-planning purposes, or by testamentary disposition, or to a controlled Affiliate or
with respect to a trust over which such Stockholder has sole or shared investment power, in each case, so long as the transferee, prior
to the time of Transfer (or, in the case of a testamentary disposition, as promptly as reasonably practicable after such Transfer), agrees
in a signed writing reasonably satisfactory to Parent and the Company to be bound by and comply with the provisions of this Agreement,
and such Stockholder (except as otherwise provided above in the case of such Stockholder’s death) provides at least five (5) Business
Days’ prior written notice (which shall include the written consent of the transferee agreeing to be bound by and comply with the
provisions of this Agreement) to Parent and the Company, in which case such Stockholder shall remain responsible for any breach of this
Agreement by such transferee, and provided, further, that the death of a Stockholder shall itself not be a Transfer
of Shares so long as a Stockholder, or a controlled Affiliate of a Stockholder, continues to own such Shares as Shares covered under this
Agreement and such controlled Affiliate agrees in a signed writing reasonably satisfactory to Parent and the Company to be bound by and
comply with the provisions of this Agreement (unless such controlled Affiliate is already subject to the terms of this Agreement and by
virtue thereof such Shares would continue to be covered by this Agreement). Notwithstanding anything contained herein, each Stockholder
will be permitted to (i) effect a bona fide pledge of Series A Common Stock, Series C Common Stock or Company Preferred
Stock (including any existing pledge) to any financial institution in connection with a bona fide financing transaction (a “Permitted
Pledge”) (so long as such pledge does not prevent or otherwise restrict in any manner such Stockholder from voting such shares
pursuant to the provisions of this Agreement prior to any default and foreclosure under the indebtedness underlying such pledge) and (ii) grant
a revocable proxy with respect to routine matters at an annual meeting of the Company Stockholders (provided such proxy does not apply
with respect to any of the matters set forth in this Agreement, even if such matters are submitted to a vote at an annual meeting of the
Company Stockholders).
6. Appraisal
Rights. Each Stockholder hereby waives, and agrees not to exercise or assert, if applicable pursuant to Section 2.6(e) of
the Merger Agreement, any appraisal rights under Section 262 of the DGCL in connection with the Merger.
7. Representations
of the Stockholders. Each Stockholder, severally on its own behalf and not jointly with any other Stockholder, represents and
warrants to Parent and the Company as follows: (a) the Stockholder has full legal right, capacity and authority to execute and deliver
this Agreement, to perform the Stockholder’s obligations hereunder and to consummate the transactions contemplated hereby; (b) this
Agreement has been duly and validly executed and delivered by the Stockholder and constitutes a valid and legally binding agreement of
the Stockholder, enforceable against the Stockholder in accordance with its terms, and no other action is necessary to authorize the execution
and delivery of this Agreement by the Stockholder or the performance of his, her or its obligations hereunder; (c) the execution
and delivery of this Agreement by the Stockholder do not, and the consummation of the transactions contemplated hereby and the compliance
with the provisions hereof will not, conflict with or violate any Law applicable to such Stockholder or result in any breach of or violation
of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or result in the creation of an Encumbrance on any of the Shares pursuant
to, any agreement or other instrument or obligation binding upon the Stockholder or any of the Shares, nor require any authorization,
consent or approval of, or filing with, any Governmental Authority other than pursuant to the Exchange Act, the Securities Act and, if
applicable, the HSR Act; (d) subject to the Permitted Pledges, the Stockholder owns beneficially and has the power to vote or direct
the voting of, the Stockholder’s Shares, including the Existing Shares of such Stockholder, a complete and accurate schedule of
which is set forth opposite such Stockholder’s name on Schedule A; (e) the Stockholder owns beneficially the Stockholder’s
Shares, including the Existing Shares of such Stockholder, free and clear of any proxy, voting restriction, adverse claim or other Encumbrance
(other than any Permitted Pledge and any restrictions created by the Transaction Documents or under applicable federal or state securities
Laws); and (f) the Stockholder or his, her or its advisers has read and is familiar with the terms of the Merger Agreement and the
other agreements and documents contemplated herein and therein, and the Stockholder understands and acknowledges that the Company and
Parent are entering into the Merger Agreement in reliance upon the Stockholder’s execution and delivery of this Agreement.
8. Representations
of Parent and the Company.
(a) Parent
represents and warrants to each Stockholder as follows: (1) Parent has full legal right, capacity and authority to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby; (2) this Agreement has
been duly and validly executed and delivered by Parent and constitutes a valid and legally binding agreement of Parent, enforceable against
Parent in accordance with its terms, and no other action is necessary to authorize the execution and delivery of this Agreement by Parent
or the performance of its obligations hereunder; (3) the execution and delivery of this Agreement by Parent does not, and the consummation
of the transactions contemplated hereby and the compliance with the provisions hereof will not, conflict with or violate any Law applicable
to Parent or result in any breach of or violation of, or constitute a default (or an event that with notice or lapse of time or both would
become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation
of an Encumbrance on any property of Parent pursuant to, any agreement or other instrument or obligation binding upon Parent or any of
its property, nor require any authorization, consent or approval of, or filing with, any Governmental Authority other than pursuant to
the Exchange Act, the Securities Act or, if applicable, the HSR Act.
(b) The
Company represents and warrants to each Stockholder as follows: (1) the Company has full legal right, capacity and authority to execute
and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby; (2) this
Agreement has been duly and validly executed and delivered by the Company and constitutes a valid and legally binding agreement of the
Company, enforceable against the Company in accordance with its terms, and no other action is necessary to authorize the execution and
delivery of this Agreement by the Company or the performance of its obligations hereunder; (3) the execution and delivery of this
Agreement by the Company does not, and the consummation of the transactions contemplated hereby and the compliance with the provisions
hereof will not, conflict with or violate any Law applicable to the Company or result in any breach of or violation of, or constitute
a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of an Encumbrance on any property of the Company pursuant to, any
agreement or other instrument or obligation binding upon the Company or any of its property, nor require any authorization, consent or
approval of, or filing with, any Governmental Authority other than pursuant to the Exchange Act, the Securities Act or, if applicable,
the HSR Act.
9. Antitrust
Filings. Parent, the Company and each Stockholder shall make an appropriate filing, if necessary, pursuant to the HSR Act with
respect to the transactions contemplated by or related to the Merger Agreement, including distributions to Stockholders, as promptly as
reasonably practicable after the date that is one year prior to June 30, 2027 (and/or such other date as reasonably determined by
the Company such that the end of the initial waiting period under the HSR Act is no earlier than one year prior to the Closing; provided,
that in connection with the GCI Divestiture, any such filing pursuant to the HSR Act shall be made as promptly as reasonably practicable
to permit the GCI Divestiture, including any distributions to Stockholders, to be completed as contemplated by the Merger Agreement) and
shall supply as promptly as practicable to the appropriate Governmental Authorities any additional information and documentary material
that may be reasonably requested pursuant to the HSR Act. Prior to making any application to or filing with any Governmental Authority
in connection with the transactions contemplated by or related to the Merger Agreement, each party hereto will provide the other party
with any information or documents that the other party may reasonably require to prepare any such filing or application.
10. Publicity.
Each Stockholder hereby authorizes Parent and the Company to publish and disclose in any documents and schedules filed with the SEC, and
any press release or other disclosure document that Parent or the Company determines to be necessary or desirable in connection with this
Agreement, the other Transaction Documents or the transactions contemplated hereby or thereby (including in the Registration Statement,
the Joint Proxy Statement or any other filing with any Governmental Authority made in connection with the Merger) such Stockholder’s
identity and ownership of the Shares, this Agreement and the nature of such Stockholder’s commitments, arrangements and understandings
under this Agreement and such other information required in connection with such disclosure. Each Stockholder agrees to notify Parent
and the Company as promptly as practicable of any inaccuracies or omissions in any information relating to the Stockholders that is so
published or disclosed. Each Stockholder shall not be permitted to make any public statement regarding this Agreement, the Merger Agreement
or the transactions contemplated hereby or thereby without the prior written consent of the Company and Parent; provided, that
the foregoing shall not restrict any Stockholder from making any disclosure or other public statement required to be made by such Stockholder
under applicable Law, including any amendment filed with the SEC on Schedule 13D, so long as such Stockholder provides the Company and
Parent with reasonable prior written notice (including reasonable opportunity to review and comment) of such disclosure.
11. Indemnification.
(a) Each
of the Company and, effective from and following the Effective Time, Parent (including for any Losses indemnifiable hereunder arising
prior to, on or after the Effective Time), jointly and severally, from and following the Effective Time (the “Indemnifying Party”)
covenants and agrees, on the terms and subject to the limitations set forth in this Agreement, to indemnify and hold harmless each Stockholder
(and each of his or her respective successors, assigns and Representatives), in each case in his or her capacity as a holder of shares
of Company Capital Stock (each in such capacity, an “Indemnified Party”), from and against any and all Losses (as defined
below) incurred in connection with, arising out of or resulting from any claims, demands, actions, proceedings or investigations (each,
an “Action” and collectively, “Actions”) arising out of this Agreement or the performance of such
Indemnified Party hereunder or any Actions relating to the Merger Agreement and the transactions contemplated thereby (including any Actions
brought by any of the stockholders, directors, officers or employees of the Company). For purposes of this Section 11, “Losses”
means any loss (including disgorgement of consideration), liability, cost, damage or expense (including, without duplication, reasonable
fees and expenses of counsel, accountants, consultants and other experts) related to an Action for which an Indemnified Party is entitled
to indemnification pursuant to this Agreement; provided, however, that any diminution in value of Parent Capital Stock or
Company Capital Stock shall not constitute a Loss.
(b) Notwithstanding
anything herein to the contrary, the Indemnifying Party will not be obligated to provide indemnity hereunder to an Indemnified Party with
respect to any Losses which (x) result from such Indemnified Party’s fraud (as defined herein), bad faith, Willful Breach or
gross negligence or (y) result from any breach of any representation and warranty of such Indemnified Party contained in this Agreement
or any breach of any covenant or agreement made or to be performed by such Indemnified Party under this Agreement.
(c) The
Indemnifying Party will indemnify each Indemnified Party pursuant to this Section 11 regardless of whether such Losses are
incurred prior to or after the Effective Time. The indemnification provided pursuant to this Section 11 is in addition to,
and not in derogation of, any other rights an Indemnified Party may have under applicable law, the Company Charter or the Company Bylaws,
or pursuant to any contract, agreement or arrangement (including, for the avoidance of doubt, under the Merger Agreement); provided,
however, that Losses will not be duplicated. If an Indemnified Party receives an indemnification payment pursuant to this Agreement
and later receives insurance proceeds or other third-party recovery proceeds in respect of the related Losses, then the Indemnified Party
shall promptly remit to the Indemnifying Party, amounts equal to the lesser of (x) the amount of such insurance proceeds or other
third-party recovery proceeds, if any, and (y) the amount of the indemnification payment previously paid by or on behalf of the Indemnifying
Party with respect to such Losses.
(d) Promptly
after the receipt by an Indemnified Party of notice with respect to any Action that is or may be subject to indemnification hereunder
(each, an “Indemnifiable Claim”) (and in no event more than ten (10) Business Days after such event), such Indemnified
Party shall give written notice thereof to the Indemnifying Party, which notice will include, to the extent known, the basis for such
Indemnifiable Claim and copies of any pleadings or written demands relating to such Indemnifiable Claim and, promptly following request
therefor, shall provide any additional information in respect thereof that the Indemnifying Party may reasonably request; provided,
that (x) any delay in giving or failure to give such notice will not affect the obligations of the Indemnifying Party hereunder except
to the extent the Indemnifying Party is actually prejudiced as a result of such delay in or failure to notify and (y) no such notice
shall be required to be given to the Indemnifying Party to the extent that the Indemnifying Party or any of its respective Affiliates
(i) is a party to any such Indemnifiable Claim or (ii) has received notice pursuant to Sections 5.14 and 5.15 of the Merger
Agreement to the extent applicable to such Indemnifiable Claim.
(e) Subject
to Section 11(f) and Section 11(g), the Indemnifying Party shall be entitled to exercise full control of
the defense, compromise or settlement of any Indemnifiable Claim in respect of an Action commenced or made by a Person who is not a party
to this Agreement or an Affiliate of a party to this Agreement (a “Third Party Indemnifiable Claim”) so long as, within
ten (10) Business Days after the receipt of notice of such Third Party Indemnifiable Claim from the Indemnified Party (pursuant to
Section 11(d)), the Indemnifying Party: (x) delivers a written confirmation to such Indemnified Party that the indemnification
provisions of Section 11 are applicable, subject only to the limitations set forth in this Agreement, to such Third Party
Indemnifiable Claim and that the Indemnifying Party will indemnify such Indemnified Party in respect of such Third Party Indemnifiable
Claim to the extent required by this Section 11, and (y) notifies such Indemnified Party in writing that the Indemnifying
Party will assume the control of the defense thereof. Following notification to such Indemnified Party of the assumption of the defense
of such Third Party Indemnifiable Claim, the Indemnifying Party shall retain legal counsel reasonably satisfactory to such Indemnified
Party to conduct the defense of such Third Party Indemnifiable Claim. If the Indemnifying Party so assumes the defense of any such Third
Party Indemnifiable Claim in accordance herewith, subject to the provisions of subsections (d) through (f) of this Section 11,
(A) the Indemnifying Party shall be entitled to exercise full control of the defense, compromise or settlement of such Third Party
Indemnifiable Claim and such Indemnified Party shall cooperate (subject to the Indemnifying Party’s agreement to reimburse such
Indemnified Party for all documented reasonable out-of-pocket expenses incurred by such Indemnified Party in connection with such cooperation)
with the Indemnifying Party in any manner that the Indemnifying Party reasonably may request in connection with the defense, compromise
or settlement thereof (subject to the last sentence of this Section 11(e)), and (B) such Indemnified Party shall have
the right to employ separate counsel selected by such Indemnified Party and to participate in (but not control) the defense, compromise
or settlement thereof and the Indemnifying Party shall pay the reasonable fees and expenses of one such separate counsel, and, if reasonably
necessary, one local counsel. No Indemnified Party shall settle or compromise or consent to entry of any judgment with respect to any
such Action (or part thereof) for which it is entitled to indemnification and to which the Indemnifying Party has provided the written
confirmation specified in clause (x) above without the prior written consent of the Indemnifying Party (which consent shall not be
unreasonably withheld, delayed or conditioned). Without the prior written consent of each of the Indemnified Parties who are named in
the Action subject to the Third Party Indemnifiable Claim (which consent shall not be unreasonably withheld, delayed or conditioned),
the Indemnifying Party will not settle or compromise or consent to the entry of judgment with respect to any Indemnifiable Claim (or part
thereof) unless such settlement, compromise or consent (x) includes an unconditional release of such Indemnified Parties, (y) does
not include any admission of wrongdoing on the part of such Indemnified Parties and (z) does not enjoin or restrict in any way the
future actions or conduct of such Indemnified Parties (other than in a manner consistent with the terms of the subject instruments or
pursuant to customary confidentiality obligations).
(f) Notwithstanding
Section 11(e), an Indemnified Party, at the expense of the Indemnifying Party (it being understood, however, that the Indemnifying
Party shall not be liable for the expenses of more than one separate counsel (in addition to one local counsel in each applicable jurisdiction)
representing the Indemnified Party), shall, subject to the last sentence of this Section 11(f), be entitled to separately
control the defense, compromise or settlement of any Third Party Indemnifiable Claim (x) as to such Indemnified Party if the Indemnified
Party with the opinion of external counsel shall have reasonably concluded that there exists any actual conflict of interest relating
to the defense of such Action between the Indemnified Party and the Indemnifying Party, (y) as to which the Indemnifying Party has
previously assumed control in the event the Indemnifying Party is not diligently pursuing such defense, or (z) if the Indemnifying
Party has not assumed the defense thereof in accordance with Section 11(e). No Indemnified Party shall settle or compromise
or consent to entry of any judgment with respect to any Action with respect to which it controls the defense thereof pursuant to this
Section 11(f) and for which it is entitled to indemnification without the prior written consent of the Indemnifying Party,
which consent shall not be unreasonably withheld, conditioned or delayed.
(g) In
all instances under this Section 11 where the Indemnifying Party has agreed to pay the fees, costs and expenses of the Indemnified
Parties, such fees, costs and expenses shall be reasonable. The parties agree to cooperate and coordinate in connection with the defense,
compromise or settlement of any Indemnifiable Claims.
(h) In
addition to (but without duplication of) the Indemnified Party’s right to indemnification as set forth in this Section 11,
if so requested by an Indemnified Party, the Indemnifying Party shall also advance to such Indemnified Party (within ten (10) Business
Days of such request) any and all documented reasonable out-of-pocket fees, costs and expenses incurred by an Indemnified Party in accordance
with this Section 11 in connection with investigating, defending, being a witness in or participating in (including any appeal),
or preparing to defend, be a witness in or participate in, any Indemnifiable Claim (other than an Indemnifiable Claim initiated by the
Indemnified Party or in which Parent or Company alleges a breach by the Indemnified Party of any representation and warranty of such Indemnified
Party contained in this Agreement or any breach of any covenant or agreement made or to be performed by such Indemnified Party under this
Agreement), including, without duplication, reasonable fees and expenses of legal counsel, accountants, consultants and other experts
(“Expense Advances”).
(i) Each
Stockholder agrees that such Stockholder will repay Expense Advances made to such Stockholder (or paid on such Stockholder’s behalf)
by the Indemnifying Party pursuant to this Section 11 if it is ultimately finally determined by a court of competent jurisdiction
that he or she is not entitled to be indemnified pursuant to this Section 11.
12. Entire
Agreement. This Agreement (including the schedules hereto) and the Merger Agreement constitute the entire agreement among the
parties with respect to the subject matter hereof and supersede all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof. Nothing in this Agreement, express or implied, is intended to or shall confer
upon any person not a party to this Agreement any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Parent acknowledges and agrees that, except as expressly provided herein, nothing in this Agreement shall be deemed to vest in Parent
any direct or indirect ownership or incidence of ownership of or with respect to any Shares.
13. Assignment.
Except as provided in Section 5 of this Agreement, neither this Agreement nor any of the rights or obligations hereunder
shall be assigned by any of the parties hereto without the prior written consent of the other parties. Any attempted assignment in violation
of this Section 13 shall be null and void ab initio. Subject to the preceding two sentences, this Agreement
will be binding upon, inure to the benefit of and be enforceable by, the parties and their respective successors and assigns and, in the
event of a Stockholder’s death, such Stockholder’s heirs, executors, administrators, testamentary trustees, legatees or beneficiaries.
14. Director/Officer.
Notwithstanding anything to the contrary contained in this Agreement, each Stockholder is entering into this Agreement solely in his,
her or its capacity as a beneficial owner of such Stockholder’s Shares, and nothing herein is intended to or shall limit, affect
or restrict any director or officer of the Company or any of its Subsidiaries solely in his or her capacity as a director or officer of
the Company or any of its Subsidiaries (including voting on matters put to such board or any committee thereof, influencing officers,
employees, agents, management or the other directors of the Company or any of its Subsidiaries and taking or failing to take any action
or making any statement at any meeting of such board or any committee thereof), in each case solely in his or her capacity as a director
or officer of the Company or any of its Subsidiaries in the exercise of his or her fiduciary duties as a director or officer of the Company
or its Subsidiaries.
15. Further
Assurances. Each party hereto agrees, from time to time, at the reasonable request of any other party hereto and without further
consideration, to execute and deliver such additional consents, documents and other instruments and to take such further actions as are
reasonably requested to effectuate the matters covered by this Agreement.
16. Remedies/Specific
Enforcement. Each of the parties hereto agrees that this Agreement is intended to be legally binding and specifically enforceable
pursuant to its terms and that the other parties would be irreparably harmed if any of the provisions of this Agreement are not performed
in accordance with its specific terms and that monetary damages would not provide adequate remedy in such event. Accordingly, in the event
of any breach or threatened breach by any party hereto of any covenant or obligation contained in this Agreement, in addition to any other
remedy to which the other parties may be entitled (whether at law or in equity), the other parties shall be entitled to injunctive relief
to prevent breaches or threatened breaches of this Agreement and to specifically enforce the terms and provisions hereof, and each party
hereto hereby waives any defense in any action for specific performance or an injunction or other equitable relief, that a remedy at law
would be adequate. Each party hereto further agrees that no party or any other person or entity shall be required to obtain, furnish or
post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this paragraph, and each
party hereto irrevocably waives any right he, she or it may have to require the obtaining, furnishing or posting of any such bond or similar
instrument.
17. Governing
Law; Jurisdiction; Venue. All disputes, claims or controversies arising out of or relating to this Agreement, or the negotiation,
validity or performance of this Agreement, or the transactions contemplated hereby shall be governed by and construed in accordance with
the Laws of the State of Delaware without regard to its rules of conflict of Laws. Each party hereto (a) irrevocably and unconditionally
consents to submit itself to the sole and exclusive personal jurisdiction of the Court of Chancery of the State of Delaware, or, solely
if that court does not have subject matter jurisdiction, the Superior Court of the State of Delaware, or, solely if the subject matter
of the action is one over which exclusive jurisdiction is vested in the courts of the United States of America, a federal court sitting
in the State of Delaware (collectively, the “Delaware Courts”) in connection with any dispute, claim, or controversy
arising out of or relating to this Agreement or the transactions contemplated hereby, (b) waives any objection to the laying of venue
of any such litigation in any of the Delaware Courts, (c) agrees not to plead or claim in any such court that such litigation brought
therein has been brought in an inconvenient forum and agrees not otherwise to attempt to deny or defeat such personal jurisdiction or
venue by motion or other request for leave from any such court, and (d) agrees that it will not bring any Action in connection with
any dispute, claim, or controversy arising out of or relating to this Agreement or the transactions contemplated hereby, in any court
or other tribunal, other than the Delaware Courts (in the manner and priority set forth in subsection (a) of this Section 17).
All Actions arising out of or relating to this Agreement or the transactions contemplated hereby shall be heard and determined in the
Delaware Courts. Each of the parties hereto hereby irrevocably and unconditionally agrees that service of process in connection with any
dispute, claim, or controversy arising out of or relating to this Agreement or the transactions contemplated hereby may be made upon such
party by prepaid certified or registered mail, with a validated proof of mailing receipt constituting evidence of valid service, directed
to such party at the address specified in Section 18. Service made in such manner, to the fullest extent permitted by applicable
Law, shall have the same legal force and effect as if served upon such party personally within the State of Delaware. Nothing herein shall
be deemed to limit or prohibit service of process by any other manner as may be permitted by applicable Law.
18. Notice.
All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be deemed given (a) on
the date of delivery if delivered personally or sent via e-mail or (b) on the first (1st) Business Day following the date of dispatch
if sent by a nationally recognized overnight courier (providing proof of delivery), in each case to the parties hereto at the following
addresses (or at such other address for a party as shall be specified by like notice);
| |
If to Parent: |
| |
|
| |
Charter Communications, Inc. |
| |
400 Washington Blvd. |
| |
Stamford, CT 06902 |
| |
Attention: Executive Vice President,
General Counsel and Corporate Secretary |
| |
Email: |
[Separately
provided] |
| |
|
| |
With a copy to: |
| |
|
| |
Wachtell, Lipton, Rosen &
Katz |
| |
51 W 52nd St. |
| |
New York, NY 10019 |
| |
Facsimile: (212) 403-1000 |
| |
Attention: Steven A. Cohen |
| |
|
Steven R. Green |
| |
Email: |
SACohen@wlrk.com |
| |
|
SRGreen@wlrk.com |
| |
If to the Company: |
| |
|
| |
Liberty Broadband Corporation |
| |
12300 Liberty Boulevard |
| |
Englewood, CO 80112 |
| |
Attention: |
Chief Legal Officer |
| |
Email: |
[Separately provided] |
| |
|
| |
with a copy to (which shall not constitute
notice): |
| |
|
| |
O’Melveny & Myers LLP |
| |
1301 6th Ave Suite 1700 |
| |
New York, NY 10019 |
| |
Attention: C. Brophy Christensen |
| |
|
Noah K. Kornblith |
| |
Email: |
bchristensen@omm.com |
| |
|
nkornblith@omm.com |
| |
|
| |
If to the Stockholders: |
| |
|
| |
John C. Malone |
| |
[Separately provided] |
| |
12300 Liberty Boulevard, 2nd Floor |
| |
Englewood, CO 80112 |
| |
E-Mail: |
[Separately
provided] |
| |
|
| |
With a copy (which shall not constitute
notice) to: |
| |
|
| |
Steven D. Miller |
| |
[Separately provided] |
| |
E-Mail: |
[Separately provided] |
19. Severability.
Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such manner as to be effective
and valid under applicable Law. In the event that any provision of this Agreement, or the application thereof, becomes or is declared
by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of this Agreement will continue in full
force and effect and the application of such provision will be interpreted so as reasonably to effect the intent of the parties hereto.
Upon such determination that any term or other provision is invalid, illegal, void or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible to the
fullest extent permitted by applicable Law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled
to the greatest extent possible.
20. Amendments;
Waivers. Any provision of this Agreement may be modified, amended or waived if, and only if, such modification, amendment or waiver
is in writing and signed (a) in the case of an amendment, by Parent, the Company and each Stockholder, and (b) in the case of
a waiver, by the party against whom the waiver is to be effective, subject in each case to any approvals that may be required from the
Parent Special Committee or pursuant to the organizational documents of Parent (including the Stockholders Agreement as it may be amended
from time to time). No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power
or privilege.
21. Waiver
of Jury Trial. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF ANY PARTY HERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT
OF THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) IT
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (C) IT MAKES SUCH WAIVER VOLUNTARILY AND (D) IT HAS BEEN INDUCED
TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 21.
22. Counterparts.
The parties may execute this Agreement in one or more counterparts, including by facsimile or other electronic signature. All the counterparts
will be construed together and will constitute one Agreement. The exchange of copies of this Agreement and of signature pages by
facsimile or e-mail shall constitute effective execution and delivery of this Agreement as to the parties hereto and may be used in lieu
of the original Agreement for all purposes. Signatures of the parties hereto transmitted by facsimile or e-mail shall be deemed to be
their original signatures for all purposes.
23. Action
by Parent. Actions taken under this Agreement on behalf of Parent will be taken only with the approval of the Parent Special Committee
(if such committee is in existence at the time such action is to be taken).
24. Interpretation.
When a reference is made in this Agreement to a Section, such reference shall be to a Section of this Agreement unless otherwise
indicated. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation
of this Agreement. Whenever the words “include”, “includes” or “including” are used in this Agreement,
they shall be deemed to be followed by the words “without limitation”. The words “hereof”, “herein”
and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement. When this Agreement contemplates a certain number of securities, as of a particular date,
such number of securities shall be deemed to be appropriately adjusted to account for stock splits, dividends, recapitalizations, combinations
of shares or other changes affecting the such securities.
25. Expenses.
The Company shall pay the reasonable out-of-pocket costs and expenses incurred by each of the Stockholders in connection with the preparation,
negotiation, execution and delivery of this Agreement, the other Transaction Documents or the transactions contemplated hereby or thereby
(including the Registration Statement, the Joint Proxy Statement or any other filing with any Governmental Authority, including, if applicable,
a filing or filings pursuant to the HSR Act, made in connection with the Merger or the GCI Divestiture), including the reasonable fees,
charges and disbursements of advisors, representatives and counsel for the Stockholders in connection therewith (the “Voting
Agreement Fees”), and any required filing fee in connection with the filings made on behalf of the Stockholders described in
this Agreement and the Merger Agreement, including in connection with the GCI Divestiture; provided, however, that
the amount of costs and expenses the Company shall pay in the aggregate for the Voting Agreement Fees shall not exceed $200,000, which
such cap shall exclude any and all filing fees payable under the HSR Act. Except as otherwise provided herein, all costs, fees and expenses
incurred in connection with this Agreement and the transactions contemplated hereby, whether or not consummated, shall be paid by the
party incurring such cost or expense.
26. No
Additional Representations. Except for the representations and warranties expressly made in this Agreement, each party hereto
hereby agrees that no other party hereto makes, and each party hereto disclaims any reliance upon, any express or implied representation
or warranty whatsoever with respect to the matters set forth in this Agreement.
[Signature pages follow]
IN WITNESS WHEREOF, this Agreement has been duly
executed by the parties and is effective as of the date first set forth above.
| |
THE JOHN C. MALONE 1995 REVOCABLE TRUST |
| |
|
| |
By: |
/s/ John C. Malone |
| |
Name: |
John C. Malone |
| |
Title: |
Trustee |
| |
|
| |
THE LESLIE A. MALONE 1995 REVOCABLE TRUST |
| |
|
| |
By: |
/s/ John C. Malone |
| |
Name: |
John C. Malone |
| |
Title: |
Trustee |
| |
|
| |
JOHN C. MALONE JUNE 2003 CHARITABLE REMAINDER UNITRUST |
| |
|
| |
By: |
/s/ John C. Malone |
| |
Name: |
John C. Malone |
| |
Title: |
Trustee |
| |
|
| |
THE MALONE FAMILY LAND PRESERVATION FOUNDATION |
| |
|
|
| |
By: |
/s/ John C. Malone |
| |
Name: |
John C. Malone |
| |
Title: |
President |
[Signature Page to Malone Voting Agreement]
| |
CHARTER COMMUNICATIONS, INC. |
| |
|
|
| |
By: |
/s/ Jessica M. Fischer |
| |
Name: |
Jessica M. Fischer |
| |
Title: |
Chief Financial Officer |
| |
|
| |
LIBERTY BROADBAND CORPORATION |
| |
|
| |
By: |
/s/ Renee L. Wilm |
| |
Name: |
Renee L. Wilm |
| |
Title: |
Chief Legal Officer and Chief Administrative Officer |
[Signature Page to Malone Voting Agreement]
SCHEDULE A
Stockholder Information
| Stockholder |
Company Series A
Common
Stock |
Company Series B
Common
Stock |
Company Preferred
Stock |
| The John C. Malone 1995 Revocable Trust |
1,153,227 |
1,675,224 |
-- |
| The Leslie A. Malone 1995 Revocable Trust |
25,444 |
57,641 |
-- |
| John C. Malone June 2003 Charitable Remainder Unitrust |
-- |
122,649 |
-- |
| The Malone Family Land Preservation Foundation |
62,500 |
-- |
-- |
Exhibit 10.2
Execution Version
VOTING AGREEMENT
This Voting Agreement (this
“Agreement”), dated as of November 12, 2024, is entered into by and among Charter Communications, Inc., a
Delaware corporation (“Parent”), Liberty Broadband Corporation, a Delaware corporation (the “Company”),
and each of the undersigned stockholders of the Company (each, a “Stockholder” and together, the “Stockholders”).
WHEREAS, subject to the terms
and conditions of the Agreement and Plan of Merger (as the same may be amended, supplemented or modified, the “Merger Agreement”),
dated as of the date hereof, among Parent, Fusion Merger Sub 1, LLC, a Delaware limited liability company and direct Wholly Owned Subsidiary
of Parent (“Merger LLC”), Fusion Merger Sub 2, Inc., a Delaware corporation and direct Wholly Owned Subsidiary
of Merger LLC (“Merger Sub”), and the Company, among other transactions contemplated by the Merger Agreement, Merger
Sub will be merged with and into the Company (the “Merger”), with the Company surviving the Merger as a Wholly Owned
Subsidiary of Parent, and immediately thereafter the Company will be merged with and into Merger LLC (the “Upstream Merger”),
with Merger LLC surviving the Upstream Merger as a direct Wholly Owned Subsidiary of Parent;
WHEREAS,
as of the date of this Agreement, each Stockholder owns beneficially (references herein to “beneficial owner,” “beneficial
ownership” and “owns beneficially” shall have the meanings assigned to such terms under Rule 13d-3 of the Securities
Exchange Act of 1934, and the rules and regulations promulgated thereunder, as amended from time to time, but without duplication
of the conversion of any shares of Company Series B Common Stock into Company Series A Common Stock in accordance with the
Company Charter or any shares of Company Series B Common Stock into Company Series C Common Stock (or vice versa) in accordance
with that certain stipulation and order granted by the court on November 23, 2020 to settle that certain putative class action complaint
filed by two purported stockholders of GCI Liberty, Inc. on October 9, 2020 (the “Stipulation and Order”)),
or of record, and, with respect to the Merger and the other transactions contemplated by the Merger Agreement, has the power to vote
or direct the voting of, certain shares of Company Series A Common Stock, Company Series B Common Stock and Company Preferred
Stock listed on Schedule A hereto (all such shares, the “Existing Shares”, and shares of Company Series A Common
Stock, shares of Company Series B Common Stock and shares of Company Preferred Stock referred to collectively as, the “Voting
Stock”); and
WHEREAS, as a condition and
inducement for Parent and the Company to enter into the Merger Agreement, Parent and the Company have required that each Stockholder,
in his, her or its capacity as a stockholder of the Company, enter into this Agreement, and each Stockholder has agreed to enter into
this Agreement.
NOW THEREFORE, in consideration
of the foregoing, the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, intending to be legally bound, the parties hereto agree as follows:
1. Definitions.
Capitalized terms not defined in this Agreement have the meaning assigned to those terms in the Merger Agreement.
2. Effectiveness;
Termination. This Agreement shall be effective upon signing. This Agreement shall automatically terminate upon the earliest to
occur (the “Expiration Date”) of (a) such date and time as the Merger Agreement shall have been validly terminated
in accordance with Article VII thereof, (b) the Effective Time, (c) the written agreement of Parent, the Company and the
Stockholders to terminate this Agreement and (d) the date of any material modification, waiver or amendment of the Merger Agreement
as in effect on the date of this Agreement that adversely affects the value or tax treatment of the consideration payable to the Stockholders
or causes such consideration to include any property other than (i) Parent Class A Common Stock for Company Common Stock (and
cash in lieu of Fractional Shares), (ii) Parent Preferred Stock for Company Preferred Stock, or adds new conditions or modifies
any existing conditions to the consummation of the Merger that materially adversely affect any Stockholder or the Merger, without the
prior written consent of Mr. Maffei or (iii) property received or entitled to be received in connection with the GCI Divestiture; provided,
that (x) this Section 2 and Sections 10 through 26 of this Agreement shall survive any
such termination, and (y) such termination shall not relieve any party of any liability or damages resulting from (1) fraud
or (2) Willful Breach by such party prior to termination, in each case, as determined by a court of competent jurisdiction pursuant
to a final and nonappealable judgment. For purposes of this Agreement, (A) “fraud” means intentional and knowing
common law fraud under Delaware law in the representations and warranties set forth in this Agreement and (B) “Willful
Breach” means a material breach of a party’s covenants and agreements set
forth in this Agreement that is the consequence of an act or omission by a party with the knowledge that the taking of such act or failure
to take such action would be a material breach of such party’s covenants or agreements.
3. Voting
Agreement. From the date hereof until the Expiration Date (the “Support Period”), each Stockholder irrevocably
and unconditionally hereby agrees that at any meeting (whether annual or special and each postponement, recess, adjournment or continuation
thereof) of the Company Stockholders, however called, and in connection with any written consent of the Company Stockholders, such Stockholder
shall:
(a) appear
at such meeting or otherwise cause all of the Existing Shares and all other shares of Voting Stock or voting securities of the Company
over which he, she or it has acquired beneficial or record ownership after the date hereof or otherwise has the power to vote or direct
the voting of (including any shares of Voting Stock acquired by means of purchase, dividend or distribution, or issued upon the exercise
of any stock options to acquire Voting Stock or the conversion of any convertible securities, or pursuant to any other equity awards
or derivative securities or otherwise over which he, she or it has the power to vote) (together with the Existing Shares, collectively,
the “Shares”), which he, she or it owns or controls as of the applicable record date, to be counted as present thereat
for purposes of calculating a quorum; and
(b) vote
or cause to be voted (including by proxy or written consent, if applicable) all such Shares (i) in favor of the adoption of the
Merger Agreement and the approval of the transactions contemplated thereby, including the Merger, (ii) in favor of any proposal
to adjourn or postpone such meeting of the Company Stockholders to a later date if such adjournment or postponement is proposed in compliance
with the provisions of Section 5.7(e) of the Merger Agreement, (iii) against any action or proposal in favor of any Alternative
Company Transaction, without regard to the terms of such Alternative Company Transaction or (iv) against any action, proposal, transaction,
agreement or amendment of the Company Charter or Company Bylaws, in each case of this clause (iv), for which the Stockholders have
received prior notice from either Parent or the Company that it reasonably expects that such action, proposal, transaction, agreement
or amendment would (A) result in a breach of any covenant, representation or warranty or any other obligation or agreement of the
Company contained in the Merger Agreement, or of any Stockholder contained in this Agreement, or (B) prevent, impede, interfere
with, delay, postpone, or adversely affect the consummation of the transactions contemplated by the Merger Agreement, including the Merger.
For
the avoidance of doubt, the foregoing commitments apply to any Shares held by any trust, limited partnership or other entity directly
or indirectly holding Shares for which any Stockholder serves as a partner, stockholder, trustee or in a similar capacity so long
as, and to the extent, such Stockholder exercises voting control over such Shares. To the extent any Stockholder does not have sole control
of the voting determinations of such entity, such Stockholder agrees to exercise all voting rights or other voting determination rights
he, she or it has in such entity to carry out the intent and purposes of his, her or its support and voting obligations in this paragraph
and otherwise set forth in this Agreement. Each Stockholder represents, covenants and agrees that, (x) except for this Agreement,
he, she or it has not entered into, and shall not enter into during the Support Period, any commitment, agreement, understanding or other
similar arrangement with any person to vote or give instructions in any manner with respect to any Shares, including any voting agreement
or voting trust and (y) except as expressly set forth herein or with respect to routine matters at an annual meeting of the Company
Stockholders, he, she or it has not granted, and shall not grant during the Support Period, a proxy, consent or power of attorney with
respect to any Shares. Each Stockholder agrees not to enter into any agreement or commitment with any person the effect of which would
violate, or frustrate the intent of, the provisions of this Agreement. In furtherance and not in limitation of the foregoing, but only
in the event and in each case that a Stockholder fails to be counted as present or fails to vote all of such Stockholder’s Shares
in accordance with this Agreement until the Expiration Date, each Stockholder hereby appoints Renee Wilm, for so long as she serves as
Chief Legal Officer of the Company, or any other person acting as Chief Legal Officer of the Company and any designee thereof, and each
of them individually, its proxy and attorney-in-fact, with full power of substitution and resubstitution, to vote or act by written consent
(and to instruct nominees or record holders to vote or act by written consent) during the Support Period with respect to any and all
of such Stockholder’s Shares in accordance with this Section 3. This proxy and power of attorney are given to secure
the performance of the duties of such Stockholder under this Agreement. Each Stockholder hereby agrees that this proxy and power of attorney
granted by each such Stockholder shall be irrevocable until the Expiration Date, and shall be deemed to be coupled with an interest sufficient
under applicable Law to support an irrevocable proxy and shall revoke any and all prior proxies granted by such Stockholder with respect
to any Shares regarding the matters set forth in this Section 3. The power of attorney granted by each Stockholder herein
is a durable power of attorney and shall survive the bankruptcy, death or incapacity of such Stockholder.
4. Non-Solicitation.
Each Stockholder hereby agrees, and agrees to cause his, her or its controlled Affiliates (which, for the avoidance of doubt, does not
include the Company or Parent) and its and their representatives not to, take any action which, were it taken by the Company or its Representatives,
would violate Section 5.3 or Section 5.4 of the Merger Agreement, it being understood that any action in compliance with Section 5.3
or Section 5.4 of the Merger Agreement shall not be deemed a breach by any Stockholder of this Section 4.
5. Transfer
Restrictions Prior to the Merger. Each Stockholder hereby agrees that he, she or it will not, during the Support Period, without
the prior written consent of Parent and the Company, (a) convert any shares of Company Series B Common Stock into shares of
Company Series A Common Stock or, other than pursuant to the Stipulation and Order, into Company Series C Common Stock (or
vice versa) or (b) other than pursuant to this Agreement, the Stipulation and Order or the Merger Agreement, directly or indirectly,
offer for sale, sell, transfer, exchange, convert, assign, give, tender in any tender or exchange offer, pledge, encumber, hypothecate
or otherwise dispose of (by merger, by testamentary disposition, by operation of Law or otherwise), either voluntarily or involuntarily,
enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership
of, enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, assignment, pledge, encumbrance,
hypothecation or other disposition of (by merger, by testamentary disposition, by operation of Law or otherwise) or otherwise convey
or dispose of, any of the Shares, or any interest therein (including by merger, by testamentary disposition, by operation of Law or otherwise),
including the right to vote any such Shares, as applicable (a “Transfer”); provided, that such Stockholder
may Transfer Shares for estate-planning purposes, or by testamentary disposition, or to a controlled Affiliate or with respect to a trust
over which such Stockholder has sole or shared investment power, in each case, so long as the transferee, prior to the time of Transfer
(or, in the case of a testamentary disposition, as promptly as reasonably practicable after such Transfer), agrees in a signed writing
reasonably satisfactory to Parent and the Company to be bound by and comply with the provisions of this Agreement, and such Stockholder
(except as otherwise provided above in the case of such Stockholder’s death) provides at least five (5) Business Days’
prior written notice (which shall include the written consent of the transferee agreeing to be bound by and comply with the provisions
of this Agreement) to Parent and the Company, in which case such Stockholder shall remain responsible for any breach of this Agreement
by such transferee, and provided, further, that the death of a Stockholder shall itself not be a Transfer of
Shares so long as a Stockholder, or a controlled Affiliate of a Stockholder, continues to own such Shares as Shares covered under this
Agreement and such controlled Affiliate agrees in a signed writing reasonably satisfactory to Parent and the Company to be bound by and
comply with the provisions of this Agreement (unless such controlled Affiliate is already subject to the terms of this Agreement and
by virtue thereof such Shares would continue to be covered by this Agreement). Notwithstanding anything contained herein, each Stockholder
will be permitted to (i) effect a bona fide pledge of Series A Common Stock, Series C Common Stock or Company Preferred
Stock (including any existing pledge) to any financial institution in connection with a bona fide financing transaction (a “Permitted
Pledge”) (so long as such pledge does not prevent or otherwise restrict in any manner such Stockholder from voting such shares
pursuant to the provisions of this Agreement prior to any default and foreclosure under the indebtedness underlying such pledge) and
(ii) grant a revocable proxy with respect to routine matters at an annual meeting of the Company Stockholders (provided such proxy
does not apply with respect to any of the matters set forth in this Agreement, even if such matters are submitted to a vote at an annual
meeting of the Company Stockholders).
6. Appraisal
Rights. Each Stockholder hereby waives, and agrees not to exercise or assert, if applicable pursuant to Section 2.6(e) of
the Merger Agreement, any appraisal rights under Section 262 of the DGCL in connection with the Merger.
7. Representations
of the Stockholders. Each Stockholder, severally on its own behalf and not jointly with any other Stockholder, represents and
warrants to Parent and the Company as follows: (a) the Stockholder has full legal right, capacity and authority to execute and deliver
this Agreement, to perform the Stockholder’s obligations hereunder and to consummate the transactions contemplated hereby; (b) this
Agreement has been duly and validly executed and delivered by the Stockholder and constitutes a valid and legally binding agreement of
the Stockholder, enforceable against the Stockholder in accordance with its terms, and no other action is necessary to authorize the
execution and delivery of this Agreement by the Stockholder or the performance of his, her or its obligations hereunder; (c) the
execution and delivery of this Agreement by the Stockholder do not, and the consummation of the transactions contemplated hereby and
the compliance with the provisions hereof will not, conflict with or violate any Law applicable to such Stockholder or result in any
breach of or violation of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of an Encumbrance
on any of the Shares pursuant to, any agreement or other instrument or obligation binding upon the Stockholder or any of the Shares,
nor require any authorization, consent or approval of, or filing with, any Governmental Authority other than pursuant to the Exchange
Act, the Securities Act and, if applicable, the HSR Act; (d) subject to the Permitted Pledges, the Stockholder owns beneficially
and has the power to vote or direct the voting of, the Stockholder’s Shares, including the Existing Shares of such Stockholder,
a complete and accurate schedule of which is set forth opposite such Stockholder’s name on Schedule A; (e) the Stockholder
owns beneficially the Stockholder’s Shares, including the Existing Shares of such Stockholder, free and clear of any proxy, voting
restriction, adverse claim or other Encumbrance (other than any Permitted Pledge and any restrictions created by the Transaction Documents
or under applicable federal or state securities Laws); and (f) the Stockholder or his, her or its advisers has read and is familiar
with the terms of the Merger Agreement and the other agreements and documents contemplated herein and therein, and the Stockholder understands
and acknowledges that the Company and Parent are entering into the Merger Agreement in reliance upon the Stockholder’s execution
and delivery of this Agreement.
8. Representations
of Parent and the Company.
(a) Parent
represents and warrants to each Stockholder as follows: (1) Parent has full legal right, capacity and authority to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby; (2) this Agreement
has been duly and validly executed and delivered by Parent and constitutes a valid and legally binding agreement of Parent, enforceable
against Parent in accordance with its terms, and no other action is necessary to authorize the execution and delivery of this Agreement
by Parent or the performance of its obligations hereunder; (3) the execution and delivery of this Agreement by Parent does not,
and the consummation of the transactions contemplated hereby and the compliance with the provisions hereof will not, conflict with or
violate any Law applicable to Parent or result in any breach of or violation of, or constitute a default (or an event that with notice
or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation
of, or result in the creation of an Encumbrance on any property of Parent pursuant to, any agreement or other instrument or obligation
binding upon Parent or any of its property, nor require any authorization, consent or approval of, or filing with, any Governmental Authority
other than pursuant to the Exchange Act, the Securities Act or, if applicable, the HSR Act.
(b) The
Company represents and warrants to each Stockholder as follows: (1) the Company has full legal right, capacity and authority to
execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby; (2) this
Agreement has been duly and validly executed and delivered by the Company and constitutes a valid and legally binding agreement of the
Company, enforceable against the Company in accordance with its terms, and no other action is necessary to authorize the execution and
delivery of this Agreement by the Company or the performance of its obligations hereunder; (3) the execution and delivery of this
Agreement by the Company does not, and the consummation of the transactions contemplated hereby and the compliance with the provisions
hereof will not, conflict with or violate any Law applicable to the Company or result in any breach of or violation of, or constitute
a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of an Encumbrance on any property of the Company pursuant to, any
agreement or other instrument or obligation binding upon the Company or any of its property, nor require any authorization, consent or
approval of, or filing with, any Governmental Authority other than pursuant to the Exchange Act, the Securities Act or, if applicable,
the HSR Act.
9. Antitrust
Filings. Parent, the Company and each Stockholder shall make an appropriate filing, if necessary, pursuant to the HSR Act with
respect to the transactions contemplated by or related to the Merger Agreement, including distributions to Stockholders, as promptly
as reasonably practicable after the date that is one year prior to June 30, 2027 (and/or such other date as reasonably determined
by the Company such that the end of the initial waiting period under the HSR Act is no earlier than one year prior to the Closing; provided,
that in connection with the GCI Divestiture, any such filing pursuant to the HSR Act shall be made as promptly as reasonably practicable
to permit the GCI Divestiture, including any distributions to Stockholders, to be completed as contemplated by the Merger Agreement)
and shall supply as promptly as practicable to the appropriate Governmental Authorities any additional information and documentary material
that may be reasonably requested pursuant to the HSR Act. Prior to making any application to or filing with any Governmental Authority
in connection with the transactions contemplated by or related to the Merger Agreement, each party hereto will provide the other party
with any information or documents that the other party may reasonably require to prepare any such filing or application.
10. Publicity.
Each Stockholder hereby authorizes Parent and the Company to publish and disclose in any documents and schedules filed with the SEC,
and any press release or other disclosure document that Parent or the Company determines to be necessary or desirable in connection with
this Agreement, the other Transaction Documents or the transactions contemplated hereby or thereby (including in the Registration Statement,
the Joint Proxy Statement or any other filing with any Governmental Authority made in connection with the Merger) such Stockholder’s
identity and ownership of the Shares, this Agreement and the nature of such Stockholder’s commitments, arrangements and understandings
under this Agreement and such other information required in connection with such disclosure. Each Stockholder agrees to notify Parent
and the Company as promptly as practicable of any inaccuracies or omissions in any information relating to the Stockholders that is so
published or disclosed. Each Stockholder shall not be permitted to make any public statement regarding this Agreement, the Merger Agreement
or the transactions contemplated hereby or thereby without the prior written consent of the Company and Parent; provided, that
the foregoing shall not restrict any Stockholder from making any disclosure or other public statement required to be made by such Stockholder
under applicable Law, including any amendment filed with the SEC on Schedule 13D, so long as such Stockholder provides the Company and
Parent with reasonable prior written notice (including reasonable opportunity to review and comment) of such disclosure.
11. Indemnification.
(a) Each
of the Company and, effective from and following the Effective Time, Parent (including for any Losses indemnifiable hereunder arising
prior to, on or after the Effective Time), jointly and severally, from and following the Effective Time (the “Indemnifying Party”)
covenants and agrees, on the terms and subject to the limitations set forth in this Agreement, to indemnify and hold harmless each Stockholder
(and each of his or her respective successors, assigns and Representatives), in each case in his or her capacity as a holder of shares
of Company Capital Stock (each in such capacity, an “Indemnified Party”), from and against any and all Losses (as
defined below) incurred in connection with, arising out of or resulting from any claims, demands, actions, proceedings or investigations
(each, an “Action” and collectively, “Actions”) arising out of this Agreement or the performance
of such Indemnified Party hereunder or any Actions relating to the Merger Agreement and the transactions contemplated thereby (including
any Actions brought by any of the stockholders, directors, officers or employees of the Company). For purposes of this Section 11,
“Losses” means any loss (including disgorgement of consideration), liability, cost, damage or expense (including,
without duplication, reasonable fees and expenses of counsel, accountants, consultants and other experts) related to an Action for which
an Indemnified Party is entitled to indemnification pursuant to this Agreement; provided, however, that any diminution
in value of Parent Capital Stock or Company Capital Stock shall not constitute a Loss.
(b) Notwithstanding
anything herein to the contrary, the Indemnifying Party will not be obligated to provide indemnity hereunder to an Indemnified Party
with respect to any Losses which (x) result from such Indemnified Party’s fraud (as defined herein), bad faith, Willful Breach
or gross negligence or (y) result from any breach of any representation and warranty of such Indemnified Party contained in this
Agreement or any breach of any covenant or agreement made or to be performed by such Indemnified Party under this Agreement.
(c) The
Indemnifying Party will indemnify each Indemnified Party pursuant to this Section 11 regardless of whether such Losses are
incurred prior to or after the Effective Time. The indemnification provided pursuant to this Section 11 is in addition to,
and not in derogation of, any other rights an Indemnified Party may have under applicable law, the Company Charter or the Company Bylaws,
or pursuant to any contract, agreement or arrangement (including, for the avoidance of doubt, under the Merger Agreement); provided,
however, that Losses will not be duplicated. If an Indemnified Party receives an indemnification payment pursuant to this Agreement
and later receives insurance proceeds or other third-party recovery proceeds in respect of the related Losses, then the Indemnified Party
shall promptly remit to the Indemnifying Party, amounts equal to the lesser of (x) the amount of such insurance proceeds or other
third-party recovery proceeds, if any, and (y) the amount of the indemnification payment previously paid by or on behalf of the
Indemnifying Party with respect to such Losses.
(d) Promptly
after the receipt by an Indemnified Party of notice with respect to any Action that is or may be subject to indemnification hereunder
(each, an “Indemnifiable Claim”) (and in no event more than ten (10) Business Days after such event), such Indemnified
Party shall give written notice thereof to the Indemnifying Party, which notice will include, to the extent known, the basis for such
Indemnifiable Claim and copies of any pleadings or written demands relating to such Indemnifiable Claim and, promptly following request
therefor, shall provide any additional information in respect thereof that the Indemnifying Party may reasonably request; provided,
that (x) any delay in giving or failure to give such notice will not affect the obligations of the Indemnifying Party hereunder
except to the extent the Indemnifying Party is actually prejudiced as a result of such delay in or failure to notify and (y) no
such notice shall be required to be given to the Indemnifying Party to the extent that the Indemnifying Party or any of its respective
Affiliates (i) is a party to any such Indemnifiable Claim or (ii) has received notice pursuant to Sections 5.14 and 5.15 of
the Merger Agreement to the extent applicable to such Indemnifiable Claim.
(e) Subject
to Section 11(f) and Section 11(g), the Indemnifying Party shall be entitled to exercise full control of
the defense, compromise or settlement of any Indemnifiable Claim in respect of an Action commenced or made by a Person who is not a party
to this Agreement or an Affiliate of a party to this Agreement (a “Third Party Indemnifiable Claim”) so long as, within
ten (10) Business Days after the receipt of notice of such Third Party Indemnifiable Claim from the Indemnified Party (pursuant
to Section 11(d)), the Indemnifying Party: (x) delivers a written confirmation to such Indemnified Party that the indemnification
provisions of Section 11 are applicable, subject only to the limitations set forth in this Agreement, to such Third Party
Indemnifiable Claim and that the Indemnifying Party will indemnify such Indemnified Party in respect of such Third Party Indemnifiable
Claim to the extent required by this Section 11, and (y) notifies such Indemnified Party in writing that the Indemnifying
Party will assume the control of the defense thereof. Following notification to such Indemnified Party of the assumption of the defense
of such Third Party Indemnifiable Claim, the Indemnifying Party shall retain legal counsel reasonably satisfactory to such Indemnified
Party to conduct the defense of such Third Party Indemnifiable Claim. If the Indemnifying Party so assumes the defense of any such Third
Party Indemnifiable Claim in accordance herewith, subject to the provisions of subsections (d) through (f) of this Section 11,
(A) the Indemnifying Party shall be entitled to exercise full control of the defense, compromise or settlement of such Third Party
Indemnifiable Claim and such Indemnified Party shall cooperate (subject to the Indemnifying Party’s agreement to reimburse such
Indemnified Party for all documented reasonable out-of-pocket expenses incurred by such Indemnified Party in connection with such cooperation)
with the Indemnifying Party in any manner that the Indemnifying Party reasonably may request in connection with the defense, compromise
or settlement thereof (subject to the last sentence of this Section 11(e)), and (B) such Indemnified Party shall have
the right to employ separate counsel selected by such Indemnified Party and to participate in (but not control) the defense, compromise
or settlement thereof and the Indemnifying Party shall pay the reasonable fees and expenses of one such separate counsel, and, if reasonably
necessary, one local counsel. No Indemnified Party shall settle or compromise or consent to entry of any judgment with respect to any
such Action (or part thereof) for which it is entitled to indemnification and to which the Indemnifying Party has provided the written
confirmation specified in clause (x) above without the prior written consent of the Indemnifying Party (which consent shall not
be unreasonably withheld, delayed or conditioned). Without the prior written consent of each of the Indemnified Parties who are named
in the Action subject to the Third Party Indemnifiable Claim (which consent shall not be unreasonably withheld, delayed or conditioned),
the Indemnifying Party will not settle or compromise or consent to the entry of judgment with respect to any Indemnifiable Claim (or
part thereof) unless such settlement, compromise or consent (x) includes an unconditional release of such Indemnified Parties, (y) does
not include any admission of wrongdoing on the part of such Indemnified Parties and (z) does not enjoin or restrict in any way the
future actions or conduct of such Indemnified Parties (other than in a manner consistent with the terms of the subject instruments or
pursuant to customary confidentiality obligations).
(f) Notwithstanding
Section 11(e), an Indemnified Party, at the expense of the Indemnifying Party (it being understood, however, that the Indemnifying
Party shall not be liable for the expenses of more than one separate counsel (in addition to one local counsel in each applicable jurisdiction)
representing the Indemnified Party), shall, subject to the last sentence of this Section 11(f), be entitled to separately
control the defense, compromise or settlement of any Third Party Indemnifiable Claim (x) as to such Indemnified Party if the Indemnified
Party with the opinion of external counsel shall have reasonably concluded that there exists any actual conflict of interest relating
to the defense of such Action between the Indemnified Party and the Indemnifying Party, (y) as to which the Indemnifying Party has
previously assumed control in the event the Indemnifying Party is not diligently pursuing such defense, or (z) if the Indemnifying
Party has not assumed the defense thereof in accordance with Section 11(e). No Indemnified Party shall settle or compromise
or consent to entry of any judgment with respect to any Action with respect to which it controls the defense thereof pursuant to this
Section 11(f) and for which it is entitled to indemnification without the prior written consent of the Indemnifying
Party, which consent shall not be unreasonably withheld, conditioned or delayed.
(g) In
all instances under this Section 11 where the Indemnifying Party has agreed to pay the fees, costs and expenses of the Indemnified
Parties, such fees, costs and expenses shall be reasonable. The parties agree to cooperate and coordinate in connection with the defense,
compromise or settlement of any Indemnifiable Claims.
(h) In
addition to (but without duplication of) the Indemnified Party’s right to indemnification as set forth in this Section 11,
if so requested by an Indemnified Party, the Indemnifying Party shall also advance to such Indemnified Party (within ten (10) Business
Days of such request) any and all documented reasonable out-of-pocket fees, costs and expenses incurred by an Indemnified Party in accordance
with this Section 11 in connection with investigating, defending, being a witness in or participating in (including any appeal),
or preparing to defend, be a witness in or participate in, any Indemnifiable Claim (other than an Indemnifiable Claim initiated by the
Indemnified Party or in which Parent or Company alleges a breach by the Indemnified Party of any representation and warranty of such
Indemnified Party contained in this Agreement or any breach of any covenant or agreement made or to be performed by such Indemnified
Party under this Agreement), including, without duplication, reasonable fees and expenses of legal counsel, accountants, consultants
and other experts (“Expense Advances”).
(i) Each
Stockholder agrees that such Stockholder will repay Expense Advances made to such Stockholder (or paid on such Stockholder’s behalf)
by the Indemnifying Party pursuant to this Section 11 if it is ultimately finally determined by a court of competent jurisdiction
that he or she is not entitled to be indemnified pursuant to this Section 11.
12. Entire
Agreement. This Agreement (including the schedules hereto) and the Merger Agreement constitute the entire agreement among the
parties with respect to the subject matter hereof and supersede all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof. Nothing in this Agreement, express or implied, is intended to or shall confer
upon any person not a party to this Agreement any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Parent acknowledges and agrees that, except as expressly provided herein, nothing in this Agreement shall be deemed to vest in Parent
any direct or indirect ownership or incidence of ownership of or with respect to any Shares.
13. Assignment.
Except as provided in Section 5 of this Agreement, neither this Agreement nor any of the rights or obligations
hereunder shall be assigned by any of the parties hereto without the prior written consent of the other parties. Any attempted assignment
in violation of this Section 13 shall be null and void ab initio. Subject to the preceding two sentences,
this Agreement will be binding upon, inure to the benefit of and be enforceable by, the parties and their respective successors and assigns
and, in the event of a Stockholder’s death, such Stockholder’s heirs, executors, administrators, testamentary trustees, legatees
or beneficiaries.
14. Director/Officer.
Notwithstanding anything to the contrary contained in this Agreement, each Stockholder is entering into this Agreement solely in his,
her or its capacity as a beneficial owner of such Stockholder’s Shares, and nothing herein is intended to or shall limit, affect
or restrict any director or officer of Parent, the Company or any of their respective Subsidiaries solely in his or her capacity as a
director or officer of Parent, the Company or any of their respective Subsidiaries (including voting on matters put to such board or
any committee thereof, influencing officers, employees, agents, management or the other directors of Parent, the Company or any of their
respective Subsidiaries and taking or failing to take any action or making any statement at any meeting of such board or any committee
thereof), in each case solely in his or her capacity as a director or officer of Parent, the Company or any of their respective Subsidiaries
in the exercise of his or her fiduciary duties as a director or officer of Parent, the Company or any of their respective Subsidiaries.
15. Further
Assurances. Each party hereto agrees, from time to time, at the reasonable request of any other party hereto and without further
consideration, to execute and deliver such additional consents, documents and other instruments and to take such further actions as are
reasonably requested to effectuate the matters covered by this Agreement.
16. Remedies/Specific
Enforcement. Each of the parties hereto agrees that this Agreement is intended to be legally binding and specifically enforceable
pursuant to its terms and that the other parties would be irreparably harmed if any of the provisions of this Agreement are not performed
in accordance with its specific terms and that monetary damages would not provide adequate remedy in such event. Accordingly, in the
event of any breach or threatened breach by any party hereto of any covenant or obligation contained in this Agreement, in addition to
any other remedy to which the other parties may be entitled (whether at law or in equity), the other parties shall be entitled to injunctive
relief to prevent breaches or threatened breaches of this Agreement and to specifically enforce the terms and provisions hereof, and
each party hereto hereby waives any defense in any action for specific performance or an injunction or other equitable relief, that a
remedy at law would be adequate. Each party hereto further agrees that no party or any other person or entity shall be required to obtain,
furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this paragraph,
and each party hereto irrevocably waives any right he, she or it may have to require the obtaining, furnishing or posting of any such
bond or similar instrument.
17. Governing
Law; Jurisdiction; Venue. All disputes, claims or controversies arising out of or relating to this Agreement, or the negotiation,
validity or performance of this Agreement, or the transactions contemplated hereby shall be governed by and construed in accordance with
the Laws of the State of Delaware without regard to its rules of conflict of Laws. Each party hereto (a) irrevocably and unconditionally
consents to submit itself to the sole and exclusive personal jurisdiction of the Court of Chancery of the State of Delaware, or, solely
if that court does not have subject matter jurisdiction, the Superior Court of the State of Delaware, or, solely if the subject matter
of the action is one over which exclusive jurisdiction is vested in the courts of the United States of America, a federal court sitting
in the State of Delaware (collectively, the “Delaware Courts”) in connection with any dispute, claim, or controversy
arising out of or relating to this Agreement or the transactions contemplated hereby, (b) waives any objection to the laying of
venue of any such litigation in any of the Delaware Courts, (c) agrees not to plead or claim in any such court that such litigation
brought therein has been brought in an inconvenient forum and agrees not otherwise to attempt to deny or defeat such personal jurisdiction
or venue by motion or other request for leave from any such court, and (d) agrees that it will not bring any Action in connection
with any dispute, claim, or controversy arising out of or relating to this Agreement or the transactions contemplated hereby, in any
court or other tribunal, other than the Delaware Courts (in the manner and priority set forth in subsection (a) of this Section 17).
All Actions arising out of or relating to this Agreement or the transactions contemplated hereby shall be heard and determined in the
Delaware Courts. Each of the parties hereto hereby irrevocably and unconditionally agrees that service of process in connection with
any dispute, claim, or controversy arising out of or relating to this Agreement or the transactions contemplated hereby may be made upon
such party by prepaid certified or registered mail, with a validated proof of mailing receipt constituting evidence of valid service,
directed to such party at the address specified in Section 18. Service made in such manner, to the fullest extent permitted
by applicable Law, shall have the same legal force and effect as if served upon such party personally within the State of Delaware. Nothing
herein shall be deemed to limit or prohibit service of process by any other manner as may be permitted by applicable Law.
18. Notice.
All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be deemed given (a) on
the date of delivery if delivered personally or sent via e-mail or (b) on the first (1st) Business Day following the date of dispatch
if sent by a nationally recognized overnight courier (providing proof of delivery), in each case to the parties hereto at the following
addresses (or at such other address for a party as shall be specified by like notice);
| |
If to Parent: |
| |
|
| |
Charter Communications, Inc. |
| |
400 Washington Blvd. |
| |
Stamford, CT 06902 |
| |
Attention: Executive Vice President,
General Counsel and Corporate Secretary |
| |
Email: |
[Separately
provided] |
| |
|
| |
With a copy to: |
| |
|
| |
Wachtell, Lipton, Rosen &
Katz |
| |
51 W 52nd St. |
| |
New York, NY 10019 |
| |
Facsimile: (212) 403-1000 |
| |
Attention: |
Steven A. Cohen |
| |
|
Steven R. Green |
| |
Email: |
SACohen@wlrk.com |
| |
|
SRGreen@wlrk.com |
| |
|
| |
If to the Company: |
| |
|
| |
Liberty Broadband Corporation |
| |
12300 Liberty Boulevard |
| |
Englewood, CO 80112 |
| |
Attention: |
Chief Legal Officer |
| |
Email: |
[Separately provided] |
| |
|
| |
with a copy to (which shall not constitute
notice): |
| |
|
| |
O’Melveny & Myers LLP |
| |
1301 6th Ave Suite 1700 |
| |
New York, NY 10019 |
| |
|
| |
Attention: C. Brophy Christensen |
| |
|
Noah K. Kornblith |
| |
Email: |
bchristensen@omm.com |
| |
|
nkornblith@omm.com |
| |
If to the Stockholders: |
| |
|
| |
Gregory B. Maffei |
| |
c/o Liberty Media Corporation |
| |
12300 Liberty Boulevard |
| |
Englewood, CO 80112 |
| |
E-Mail: |
[Separately
provided] |
| |
|
| |
With a copy (which shall not constitute
notice) to: |
| |
|
| |
Sherman & Howard L.L.C. |
| |
675 Fifteenth Street |
| |
Suite 2300 |
| |
Denver, CO 80202 |
| |
Attention: |
Jeffrey R. Kesselman |
| |
E-Mail: |
jkesselman@shermanhoward.com |
19. Severability.
Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such manner as to be effective
and valid under applicable Law. In the event that any provision of this Agreement, or the application thereof, becomes or is declared
by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of this Agreement will continue in
full force and effect and the application of such provision will be interpreted so as reasonably to effect the intent of the parties
hereto. Upon such determination that any term or other provision is invalid, illegal, void or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible
to the fullest extent permitted by applicable Law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled
to the greatest extent possible.
20. Amendments;
Waivers. Any provision of this Agreement may be modified, amended or waived if, and only if, such modification, amendment or
waiver is in writing and signed (a) in the case of an amendment, by Parent, the Company and each Stockholder, and (b) in the
case of a waiver, by the party against whom the waiver is to be effective, subject in each case to any approvals that may be required
from the Parent Special Committee or pursuant to the organizational documents of Parent (including the Stockholders Agreement as it may
be amended from time to time). No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of
any other right, power or privilege.
21. Waiver
of Jury Trial. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF ANY PARTY HERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT
OF THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) IT
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (C) IT MAKES SUCH WAIVER VOLUNTARILY AND (D) IT HAS BEEN INDUCED
TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 21.
22. Counterparts.
The parties may execute this Agreement in one or more counterparts, including by facsimile or other electronic signature. All the counterparts
will be construed together and will constitute one Agreement. The exchange of copies of this Agreement and of signature pages by
facsimile or e-mail shall constitute effective execution and delivery of this Agreement as to the parties hereto and may be used in lieu
of the original Agreement for all purposes. Signatures of the parties hereto transmitted by facsimile or e-mail shall be deemed to be
their original signatures for all purposes.
23. Action
by Parent. Actions taken under this Agreement on behalf of Parent will be taken only with the approval of the Parent Special
Committee (if such committee is in existence at the time such action is to be taken).
24. Interpretation.
When a reference is made in this Agreement to a Section, such reference shall be to a Section of this Agreement unless otherwise
indicated. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation
of this Agreement. Whenever the words “include”, “includes” or “including” are used in this Agreement,
they shall be deemed to be followed by the words “without limitation”. The words “hereof”, “herein”
and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not
to any particular provision of this Agreement. When this Agreement contemplates a certain number of securities, as of a particular date,
such number of securities shall be deemed to be appropriately adjusted to account for stock splits, dividends, recapitalizations, combinations
of shares or other changes affecting the such securities.
25. Expenses.
The Company shall pay the reasonable out-of-pocket costs and expenses incurred by each of the Stockholders in connection with the preparation,
negotiation, execution and delivery of this Agreement, the other Transaction Documents or the transactions contemplated hereby or thereby
(including the Registration Statement, the Joint Proxy Statement or any other filing with any Governmental Authority, including, if applicable,
a filing or filings pursuant to the HSR Act, made in connection with the Merger or the GCI Divestiture), including the reasonable fees,
charges and disbursements of advisors, representatives and counsel for the Stockholders in connection therewith (the “Voting
Agreement Fees”), and any required filing fee in connection with the filings made on behalf of the Stockholders described in
this Agreement and the Merger Agreement, including in connection with the GCI Divestiture; provided, however, that
the amount of costs and expenses the Company shall pay in the aggregate for the Voting Agreement Fees shall not exceed $200,000, which
such cap shall exclude any and all filing fees payable under the HSR Act. Except as otherwise provided herein, all costs, fees and expenses
incurred in connection with this Agreement and the transactions contemplated hereby, whether or not consummated, shall be paid by the
party incurring such cost or expense.
26. No
Additional Representations. Except for the representations and warranties expressly made in this Agreement, each party hereto
hereby agrees that no other party hereto makes, and each party hereto disclaims any reliance upon, any express or implied representation
or warranty whatsoever with respect to the matters set forth in this Agreement.
[Signature pages follow]
IN WITNESS WHEREOF, this Agreement has been duly
executed by the parties and is effective as of the date first set forth above.
| |
/s/ Gregory B. Maffei |
| |
GREGORY B. MAFFEI |
| |
|
| |
MAVEN GRAT 1, LLC |
| |
|
| |
By: |
/s/ Jeffrey C. Kirwood |
| |
|
Name: |
Jeffrey C. Kirwood |
| |
|
Title: |
Manager |
| |
|
| |
MAVEN 2017-1 GRAT, LLC |
| |
|
| |
By: |
/s/ Jeffrey C. Kirwood |
| |
|
Name: |
Jeffrey C. Kirwood |
| |
|
Title: |
Manager |
| |
|
| |
MAFFEI FOUNDATION |
| |
|
|
| |
By: |
/s/ Gregory B. Maffei |
| |
|
Name: |
Gregory B. Maffei |
| |
|
Title: |
President |
[Signature Page to Maffei
Voting Agreement]
| |
CHARTER COMMUNICATIONS, INC. |
| |
|
| |
By: |
/s/ Jessica M. Fischer |
| |
|
Name: |
Jessica M. Fischer |
| |
|
Title: |
Chief Financial Officer |
| |
|
|
|
| |
LIBERTY BROADBAND CORPORATION |
| |
|
| |
By: |
/s/ Renee L. Wilm |
| |
|
Name: |
Renee L. Wilm |
| |
|
Title: |
Chief Legal Officer and Chief Administrative Officer |
[Signature Page to Maffei
Voting Agreement]
SCHEDULE A
Stockholder Information
| Stockholder |
Company
Series A Common
Stock |
Company
Series B Common
Stock |
Company
Preferred
Stock |
| Gregory
B. Maffei |
256,830 |
104,582
(1) |
- |
| Maven
GRAT 1, LLC |
116,290 |
- |
- |
| Maven
2017-1 GRAT, LLC |
- |
- |
- |
| Maffei
Foundation |
86,248 |
- |
- |
| (1) | Includes beneficial ownership of 95,410 LBRDB
shares that may be acquired upon exercise of, or which relate to, stock options exercisable
within 60 days after the date of this Agreement. |
Exhibit 10.3
FINAL
AMENDMENT NO.
1 TO THE SECOND AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT AND THE LETTER AGREEMENT
This
AMENDMENT NO. 1 TO THE SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT AND THE LETTER AGREEMENT, dated as of November 12, 2024
(this “Amendment”), is by and among Charter Communications, Inc., a Delaware corporation and successor to CCH
I, LLC, a Delaware limited liability company (the “Company”), Liberty Broadband Corporation, a Delaware corporation
(“Liberty”) and Advance/Newhouse Partnership, a New York general partnership (“A/N”).
RECITALS:
A. On
May 23, 2015, the Company, A/N and Liberty entered into that certain Second Amended and Restated Stockholders Agreement (as amended
prior to the date hereof, the “Existing Stockholders Agreement”).
B. On
February 23, 2021, the Company and Liberty entered into that certain letter agreement regarding stock repurchases (the “Existing
Letter Agreement”).
C. On
the date hereof, the Company, Fusion Merger Sub 1, LLC, a wholly owned subsidiary of the Company (“Merger Sub LLC”),
Fusion Merger Sub 2, Inc., a wholly owned subsidiary of Merger Sub LLC (“Merger Sub”) and Liberty entered into
an Agreement and Plan of Merger (the “Merger Agreement”), pursuant to which Merger Sub will merge with and into Liberty,
with Liberty continuing as the surviving corporation and immediately thereafter Liberty will merge with and into Merger Sub LLC, with
Merger Sub LLC continuing as the surviving company and a wholly owned subsidiary of the Company.
D. Effective
as of the date hereof, the parties are amending the Existing Stockholders Agreement and the Existing Letter Agreement as set forth herein.
NOW,
THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements contained herein and for other good and
valuable consideration, the receipt and adequacy of which are hereby acknowledged, intending to be legally bound, the parties hereto
agree as follows:
1. Definitions.
All capitalized terms that are used but not defined in this Amendment shall have the respective meanings ascribed to such terms in the
Existing Stockholders Agreement, the Existing Letter Agreement or the Merger Agreement, as applicable, except as otherwise indicated.
The following terms shall have the meanings ascribed to them below:
“Aggregate
Shortfall Amount” means the aggregate Shortfall Amount for all Repurchase Periods that has not been reduced by repurchases
of Common Stock pursuant to Section 3(a)(ii) or loans provided by the Company pursuant to Section 3(b) after the
applicable Repurchase Period.
“Company
Loan Facility” means a loan facility provided by the Company (or its designated subsidiary) to Liberty, which facility:
(a) shall
be a term loan;
(b) shall
accrue interest at a floating rate based on the three-month secured overnight financing rate (applicable to SOFR borrowings under Charter
Communications Operating, LLC’s pro rata term loan A facility with financial institutions (for the avoidance of doubt, not the
term loan A tranche with CoBank), as may be amended, refinanced or replaced from time to time) plus 2.0%, payable in cash on a quarterly
basis (or such other time period as jointly agreed to by the Company and Liberty);
(c) shall
mature on the earlier of (x) the six (6) month anniversary of the Drop Dead Date (as defined in the Merger Agreement) and (y) the
six (6) month anniversary of the termination of the Merger Agreement;
(d) shall
not be subject to any amortization payments;
(e) may,
at the option of the Company, be guaranteed by the U.S. subsidiaries of Liberty (excluding GCI, GCI Spinco and their respective Subsidiaries
and any Subsidiary of Liberty that is a borrower under the Liberty Margin Facility as of the date
of this Agreement (or any Permitted Margin Loan Refinancing)) (the “Guarantors”), subject to customary exceptions
to be reasonably agreed;
(f) may,
at the option of the Company, be secured by the equity interests of any Guarantor, subject to customary exceptions to be reasonably agreed;
(g) shall
be prepayable or repaid at maturity or otherwise without premium or penalty (following termination of the Merger Agreement, to the extent
funded direct or indirectly with the proceeds of Indebtedness, in whole and not in part);
(h) shall
require that Liberty and its Subsidiaries comply with (x) Section 5.1 of the Merger Agreement (whether or not the Merger Agreement
is in effect) excluding any covenants that prohibit the incurrence of debt (and liens securing such debt) the proceeds of which are applied
substantially concurrently to repay a Company Loan Facility and (y) other certain limited covenants to be reasonably agreed; and
(i) shall
have other terms and conditions and be governed by definitive documents in each case in form and substance reasonably satisfactory to
the Company and Liberty.
“Company
MAE Event” means, as of any date, the Company’s good faith determination that the proposed repurchase of shares of Company
Common Stock and/or proposed lending under the Company Loan Facility, in each case, contemplated by this Amendment or the Merger Agreement
in the upcoming Repurchase Period or on such date (or the borrowing of the funds and transfer and application thereof for such repurchase
or lending, as applicable) would or would reasonably be expected to (x) violate any negative covenant or result in a breach of a
financial covenant of the Company or its Subsidiaries set forth in or applicable to existing or future Indebtedness of the Company and/or
its Subsidiaries incurred in good faith and not for the purpose of avoiding its repurchase obligations under this Amendment payable to
a non-affiliated third party bank or institution which violation or breach would, with or without the giving of notice, the lapse of
time or both, entitle or permit such non-affiliated third party bank or institution to seek acceleration or prepayment of such Indebtedness
prior to the date it would otherwise be due and payable or to require the prepayment, repurchase (or offer to repurchase), redemption
or defeasance thereof or (y) result in a Parent Material Adverse Effect (as defined in the Merger Agreement). Any such determination
will be set forth in an officer’s certificate of the Company delivered to Liberty on such date, which certificate shall include
reasonably detailed supporting information.
“Company
Liquidity Event” means, as of any date, the unrestricted cash (for the avoidance of doubt, excluding cash held by captive insurance
companies) and revolver loan borrowing capacity under any outstanding credit facilities, in each case, of the Company and its Subsidiaries
(on a consolidated basis) being less than the Company Minimum Liquidity Amount as of such date, with such determination to be evidenced
by an officer’s certificate of the Company delivered to Liberty, which certificate shall include reasonably detailed supporting
information.
“Company
Minimum Liquidity Amount” means, as of any date of determination, (1) the sum of (a) $1.50 billion and (b) the
aggregate amount that in the reasonable judgment of the Company on such determination date is required to repay, redeem, repurchase or
otherwise settle (and pay other amounts in respect of) any Indebtedness of the Company and its Subsidiaries, in each case, owed to a
non-affiliated third party bank or institution within the 180 days immediately following such determination date or (2) such lesser
amount as the Company may specify in writing to Liberty from time to time.
“Company
Common Stock” means the Company Common Stock (as defined in the Existing Stockholders Agreement).
“Interim
Merger Period” means the period from the execution of the Merger Agreement until the earlier of (a) the Merger Closing
and (b) the termination of the Merger Agreement.
“Liberty
Debt” means the Company Debt (as defined in the Merger Agreement.
“Liberty
Margin Facility” means the Company Margin Facility (as defined in the Merger Agreement) or any Permitted Margin Loan Refinancings
(as defined in the Merger Agreement).
“Merger
Closing” means the occurrence of the Closing (as defined in the Merger Agreement).
“Minimum
Liquidity Threshold” means, as of any Monthly Determination Date, an amount equal to (a) LBC Cash Liabilities minus (b) LBC
Available Liquidity; provided that, if the Minimum Liquidity Threshold would result in a number that is a negative number, the Minimum
Liquidity Threshold shall be deemed to be zero.
“Minimum
Repurchase Amount” means, as of any Monthly Determination Date, an amount equal to the lesser of (a) $100 million and
(b) the sum of (1) the amount of cash needed in the reasonable judgment of the Company to maintain unrestricted cash on the
balance sheet of Liberty and its Subsidiaries (other than GCI, GCI Spinco and their respective Subsidiaries) of $50 million during the
30 days immediately following such Monthly Determination Date plus (2) the aggregate outstanding principal amount of loans outstanding
under the Liberty Margin Facility as of such Monthly Determination Date.
“Shortfall
Amount” means, for any Repurchase Period, (x) the Repurchase Amount (for the avoidance of doubt, as such amount would
have been determined but for the occurrence of a Company Liquidity Event or Company MAE Event) minus (y) the sum of repurchases
of Common Stock pursuant to Section 3(a)(ii) and loans provided by the Company pursuant to Section 3(b) during such
Repurchase Period.
2. [Reserved].
3. Repurchases
in the Interim Merger Period.
| a. | Notwithstanding
the Existing Stockholders Agreement and the Existing Letter Agreement, commencing with the
first Monthly Determination Date following the date hereof (which, for the avoidance of doubt
assuming the execution of this Amendment on November 12, 2024, will be Friday, November 29,
2024) until the date the Merger Agreement is terminated without the Merger Closing having
occurred (a “Merger Termination”): |
| i. | repurchases
of shares of Company Common Stock shall be made pursuant to this Amendment rather than pursuant
to the Existing Letter Agreement; provided, however, that in connection with
each repurchase pursuant to this Amendment, the Company will deliver to Liberty all backup
and calculations customarily delivered by it in connection with repurchases made under the
Existing Letter Agreement and such evidence reasonably satisfactory to Liberty that the Board
of Directors has adopted resolutions exempting under Rule 16b-3 any sale by Liberty
to the Company required by this Amendment; |
| ii. | subject
to Section 3(b), Liberty and the Company shall conduct monthly repurchases of shares
of Company Common Stock having an aggregate Repurchase Price (the “Repurchase Amount”)
equal to the sum of (x) the greater of (I) $100 million and (II) the Minimum
Liquidity Threshold and (y) the Aggregate Shortfall Amount (or portion thereof that
can be repurchased without resulting in a Company Liquidity Event or a Company MAE Event);
provided that (1) if at the time of the applicable Monthly Determination Date
or on the Repurchase Date, there are no Exchangeable Debentures outstanding, then (subject
to the remainder of this proviso) the Repurchase Amount shall equal the Minimum Repurchase
Amount; (2) if there is or would be a Company Liquidity Event at the time of the applicable
Monthly Determination Date or on the Repurchase Date (after giving effect to such repurchases),
the Repurchase Amount shall be an amount equal to the Minimum Liquidity Threshold and (3) if
there is or would be a Company MAE Event at the time of the applicable Monthly Determination
Date or on the Repurchase Date (after giving effect to such repurchases), the Company’s
obligation to repurchase shares of Company Common Stock on the applicable Repurchase Date
shall be tolled until the first subsequent Monthly Determination Date on which a Company
MAE Event no longer exists. |
| iii. | the
timing of notices in connection with such repurchases shall be as set forth in the Existing
Letter Agreement, and the repurchase price shall be the Repurchase Price pursuant to the
Existing Letter Agreement; provided that if the Company has not repurchased shares
of Company Common Stock during the relevant Repurchase Period (other than Excluded Repurchased
Shares), the Repurchase Price shall be based on a Bloomberg VWAP methodology proposed by
the Company and reasonably acceptable to Liberty; |
| iv. | not
less than three (3) Business Days prior to the Monthly Determination Date for each Repurchase
Period, Liberty will deliver to the Company an officer’s certificate specifying Liberty’s
calculation of the Minimum Liquidity Threshold (or, if applicable, the Minimum Repurchase
Amount in lieu of its calculation of the Minimum Liquidity Threshold) together with evidence
reasonably supporting such calculation; |
| v. | each
Repurchase Notice (as defined in the Existing Letter Agreement) shall include, in addition
to the information and other documentation otherwise required pursuant to the Existing Letter
Agreement, the Liberty Reported Total Shares and the number of Liberty Reported Total Shares
that are in excess of the Cap; |
| vi. | the
repurchase date for each such repurchase shall be the third Business Day following the delivery
by the Company of the Repurchase Notice (for purposes of this Amendment, the “Repurchase
Date”), on which date the parties shall conduct a repurchase or make loans on the
terms set forth in this Amendment; |
| vii. | notwithstanding
anything to the contrary herein or in the Merger Agreement, in no event will the Company
be required to (x) conduct any repurchase or make any loan as set forth herein or therein
if a Company MAE Event exists or would exist (after giving effect to such repurchase or loan)
(for the avoidance of doubt, any repurchases or loans that are not made as otherwise required
under this Agreement will be considered Shortfall Amount for such Repurchase Period) or (y) conduct
any repurchase set forth herein or therein if any Repurchase Limitation applies to such repurchase
(provided that, for the avoidance of doubt, the Company shall repurchase any shares under
this Agreement that are not subject to such Repurchase Limitations); |
| viii. | at
any time the Company is required to make a loan to Liberty pursuant to the Merger Agreement,
in lieu of such loan, the Company may elect, with at least three (3) Business Days’
prior written notice, to repurchase additional shares from Liberty at the then-applicable
Repurchase Price, provided that any such repurchase shall not result in the pro forma Equity
Interests of the shares of Company Common Stock then owned by Liberty being less than 25.25%
after giving effect to the repurchase of shares from Liberty; |
| ix. | in
connection with any repurchase pursuant to this Section 3(a) consummated other
than in open trading window with respect to the Company, Liberty shall, at the Company’s
request, execute a customary “big boy” letter with respect to such repurchase;
and |
| x. | for
the avoidance of doubt, the parties agree that all repurchases of Company Common Stock from
Liberty pursuant to this Amendment shall be deemed “Qualifying Repurchases” for
all purposes under the letter agreement, dated as of December 23, 2016 (as amended,
modified or supplemented from time to time), between the Company and A/N, regarding A/N’s
participation in Company share repurchases. |
| b. | In
the event that the Company is not permitted to repurchase all or a portion of shares of Company
Common Stock from Liberty pursuant to Section 3(a) under applicable law (including,
for the avoidance of doubt, as a result of the inability or ineffectiveness of the Company’s
exemption of such repurchase under Section 16(b) of the Exchange Act) on any Repurchase
Date or such repurchase of Company Common Stock contemplated by Section 3(a) would
result in the pro forma Equity Interest of the shares of Company Common Stock then owned
by Liberty being less than 25.25% after giving effect to the repurchase of shares from Liberty
calculated to occur at the end of the then current Repurchase Period (such restrictions,
the “Repurchase Limitations”), the Company’s and Liberty’s
respective obligations to complete repurchases hereunder (but not their respective obligations
under the remainder of this Amendment) with respect to the shares that cannot be repurchased
(provided that, for the avoidance of doubt, the Company shall repurchase any shares that
are not subject to such Repurchase Limitations) shall be tolled and the Company will instead
lend U.S. dollars to Liberty on the Repurchase Date under a Company Loan Facility in an amount
equal to the lesser of (x) the Repurchase Amount that cannot be repurchased and (y) the
Minimum Liquidity Threshold less the portion of the Repurchase Amount repurchased on the
Repurchase Date; provided that if there is Company MAE Event at the time of the applicable
Monthly Determination Date or on such Repurchase Date (determined after giving effect to
such repurchases and loans), the Company’s obligation to lend U.S. dollars to Liberty
under a Company Loan Facility pursuant to this Section 3(b) shall be tolled until
the first subsequent Repurchase Date on which a Company MAE Event no longer exists. |
| c. | Notwithstanding
anything herein to the contrary, following any Company Liquidity Event and/or any Company
MAE Event, the Company will not purchase any shares of Company Common Stock from any holders
thereof for U.S. Dollars (other than (A) from Liberty and corresponding purchases from
A/N that are required as a result of such purchases from Liberty, (B) in connection
with the exercise, settlement or vesting of any equity awards with respect to shares of capital
stock of the Company, including the withholding of shares to satisfy withholding Tax obligations
in respect of such equity awards, (C) as required pursuant to the governance documents
of Charter Communications Holdings, LLC, the Parent Governance Instruments (as defined in
the Merger Agreement) or the Exchange Agreement, dated as of May 18, 2016, by and among
the Company, A/N and the other parties thereto or (D) pursuant to ordinary course share
repurchase programs as necessary to cause the Equity Interest of the shares of Company Common
Stock then owned by Liberty to be at least 25.25% while reducing the Aggregate Shortfall
Amount) during the period starting from the Monthly Determination Date that a Company Liquidity
Event or Company MAE Event, as applicable, occurs to the date the Aggregate Shortfall Amount
has been reduced to zero. |
4. Ownership
Cap. For the avoidance of doubt, during the Interim Merger Period, (a) except as provided in Section 8(a) hereof (including
the proviso therein), any provision of the Existing Stockholders Agreement (including, by way of example and not in limitation thereof,
Section 4.7 thereof) which relates to the Cap will be deemed modified to refer to Liberty's Equity Interest at the applicable time
of determination and from time to time thereafter to the extent such percentage increases as a result of share repurchases and (b) the
Liberty Parties shall not be deemed to be in breach of Sections 4.1 or 4.2 of the Existing Stockholders Agreement to the extent that
Liberty’s Equity Interest exceeds the Cap solely as a result of the effects of compliance with Section 3; provided that
all provisions of Sections 4.1 and 4.2 of the Existing Stockholders Agreement shall otherwise continue to apply with full force and effect.
5. Board
Committees. Decisions of the Company or the Board of Directors directly or indirectly related
to the transactions contemplated by the Merger Agreement shall be subject to the direction and approval of the special committee of the
Board of Directors established for such purpose on August 1, 2024 (the “Special Committee”), as applicable and
pursuant to the resolutions establishing and empowering such committee, including, for the avoidance of doubt, decisions regarding the
application, interpretation, enforcement, waiver or amendment of the Merger Agreement, this Amendment and/or any other Transaction Document
(as defined in the Merger Agreement), any decision with respect to share repurchases or cash flow impacting budgets, any decision with
respect to any matter that would require a waiver under the Merger Agreement, this Amendment and/or any other Transaction Document, and
any decision that would have a material impact on any right or decision under the Merger Agreement, this Amendment and/or any other Transaction
Document. The foregoing is illustrative and by no means exhaustive. Notwithstanding Section 3.4 of the Existing Stockholders Agreement,
no Investor Party shall have the right, and the Company and the Board of Directors shall have no obligation, to appoint any A/N Designee
or Liberty Designee to the Special Committee. Each of the Liberty Designees that have been appointed to the Compensation and Benefits
Committee (the “CBC”) shall not participate, in their capacity as a member of the CBC, in any discussions or decisions
relating to the hiring, firing or compensation of the Chief Executive Officer or Chief Financial Officer of the Company.
6. [Reserved].
7.
Merger Closing.
| a. | Section 7.1
of the Existing Stockholders Agreement is hereby amended by adding the following new subsection
(h) at the end of such section: “(h) with respect to Liberty, upon the Merger
Closing; it being understood that the Parties intend to discuss appropriate changes to the
governance arrangements of the Company and the Existing Stockholders Agreement, with such
changes, if any, that are agreed by the Parties and approved in accordance with applicable
organizational documents and the Existing Stockholders Agreement to take effect upon the
Merger Closing.” |
| b. | The
parties shall cooperate in good faith to make any amendments to the organizational documents
of Charter Communications Holdings, LLC and/or the Exchange Agreement, dated as of May 18,
2016, by and among the Company, A/N and the other parties thereto that are reasonably necessary
or advisable to give effect to the transactions contemplated by the Merger Agreement and
this Amendment so long as no such amendment would or would reasonably be expected to (i) materially
impair, hinder or delay or (ii) prohibit or prevent the consummation of the Combination. |
8. Merger
Agreement Termination.
| a. | Upon
a Merger Termination, the term “Cap” as defined in the Existing Stockholders
Agreement will be permanently amended to be defined as follows: |
“Cap”
means, (a) in respect of A/N, the greatest of, (i) A/N’s Equity Interest issued at Closing, (ii) 25% and (iii) the
Voting Cap applicable to the A/N Parties; and (b) in respect of Liberty, the greater of (i) the Liberty Parties Equity Interest
in Parent calculated on a Fully Exchanged Basis and fully diluted basis as of the date of the Merger Termination (and without taking
into account any pending repurchases from Liberty pursuant to the Existing Letter Agreement or this Amendment) and (ii) the Voting
Cap applicable to the Liberty Parties.
Provided
that the “Cap” for purposes of Section 4 of the Existing
Letter Agreement shall mean the Cap as in effect under the Existing Stockholders Agreement without giving effect to this Section 8(a).
| b. | Without
prejudice to Section 3.7(a) of the Existing Stockholders Agreement, from and after
the date hereof, each Liberty Party agrees (including with respect to any Excluded Matter)
to vote, and exercise rights to consent with respect to, all Voting Securities Beneficially
Owned by such Liberty Party or over which such Liberty Party otherwise has voting discretion
or control that are in excess of the Voting Cap in effect at such time in the same proportion
as all other votes cast with respect to the applicable matter (such proportion determined
without inclusion of the votes cast by (i) the A/N Parties (but only if A/N has the
right to nominate one or more Directors under the Existing Stockholders Agreement) or (ii) any
other Person or group (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act) that Beneficially Owns Voting Securities representing 10% or more of the Total
Voting Power (other than any such Person or group that reports its holdings of Company securities
on a statement on Schedule 13G filed with the SEC and is not required under Section 13(d) of
the Exchange Act to file a statement on Schedule 13D with the SEC in respect thereof)). |
| c. | This
Amendment (other than this Section 8, Section 11 and Section 12) shall terminate
automatically without any further action required by any party and shall be of no further
force and effect upon the first date following the Monthly Determination Date following the
Merger Termination; provided that nothing contained in this Amendment (including this
Section 8) shall relieve any party from liability for any breach of this Amendment occurring
prior to such termination. Except as otherwise specifically provided in this Amendment, from
and after the Merger Termination, the Existing Stockholders Agreement and the Existing Letter
Agreement shall otherwise be reinstated and apply to the parties thereto according to their
respective terms for all periods following such Merger Termination. |
9. Use
of Proceeds; Reporting; Certain Debt Matters.
| a. | The
proceeds received by Liberty from any repurchases pursuant to Section 3 of this Amendment
and from any borrowings under a Company Loan Facility shall be segregated by Liberty in a
separate account (which may be interest bearing or invested in money market funds) (such
proceeds and any amounts earned thereon, “Proceeds”) (such account, the
“Proceeds Account”) and such Proceeds shall only be applied by Liberty
and its Subsidiaries that are disregarded as separate from Liberty for federal income tax
purposes in accordance with clause (b) below within 6 months of receipt to repay, repurchase,
redeem, prepay or otherwise settle any Liberty Debt and/or to pay any interest on any outstanding
Liberty Debt. |
| b. | Proceeds
in such Proceeds Account shall be applied (a) no less frequently than monthly to pay
any interest on any outstanding Liberty Debt then due and prepay any outstanding revolving
loans under the Liberty Margin Facility, (b) if not otherwise applied by the fifth (5th)
business day prior to the expiration of such 6-month period, to pay any interest on any outstanding
Liberty Debt then due and/or repay any outstanding revolving loans under the Liberty Margin
Facility (or, if there are no revolving loans outstanding and such Proceeds are not reasonably
expected to be applied to redeem or settle Exchangeable Debentures prior to the expiration
of such 6-month period, to prepay any outstanding term loans under the Liberty Margin Facility
and interest thereon) and (c) from and after the date when no Exchangeable Debentures
are outstanding and no revolving loans are outstanding under the Liberty Margin Facility,
promptly (and in any event within ten (10) business days) following receipt to prepay
any outstanding term loans under the Liberty Margin Facility and interest on any Liberty
Debt then due. |
| c. | Liberty
will provide the Company on a monthly basis a schedule indicating the amount of such Proceeds
and their use. The parties agree that Liberty’s calculation of the Minimum Liquidity
Threshold (and, if applicable, the Minimum Repurchase Amount) shall be deemed accurate absent
manifest error in such calculation by Liberty. The parties agree to treat any Proceeds received
by Liberty as consideration for any share repurchases pursuant to this Amendment or borrowings
under any Company Loan Facility (to the extent not treated as indebtedness for Federal income
tax purposes) as “other property” the receipt of which qualifies for nonrecognition
of gain or loss under Section 361(b)(1)(A) and (b)(3) of the Code, by reason
of the transfers of such Proceeds to Liberty’s creditors in pursuance of the plan of
reorganization, and not to take any position inconsistent therewith except in the event of
a Merger Termination or unless otherwise required by a change in applicable law occurring
after the date hereof or a “determination,” as defined in Section 1313(a) of
the Code or corresponding provision of state, local or foreign applicable law. |
10. No
Other Amendments. Except as otherwise expressly amended or modified hereby, all of the terms and conditions of the Existing Stockholders
Agreement and the Existing Letter Agreement shall continue in full force and effect. Each reference to “hereof”, “hereunder”,
“herein” and “hereby” and each similar reference contained in the Existing Stockholders Agreement or the Existing
Letter Agreement shall refer to the Existing Stockholders Agreement or the Existing Letter Agreement, as applicable, as amended hereby.
For the avoidance of doubt, except for its right, if any, to appoint an A/N Designee to the Special Committee, nothing herein or in the
Merger Agreement, affects A/N’s rights under the Existing Stockholders Agreement, including A/N’s rights pursuant to Section 3.3
of the Existing Stockholders Agreement (including, without limitation, the right of a majority of the A/N directors to approve (i) the
entry into the Merger Agreement and each of the other agreements and transactions contemplated thereby (provided that the parties acknowledge
and agree that the A/N directors have, prior to the date hereof, provided their approval to the Merger Agreement and the other Transaction
Documents (as defined in the Merger Agreement) and the transactions contemplated thereby on the terms set forth therein as of the date
of this Amendment) and (ii) any amendments thereto or waivers thereof), which continue to apply in full force and effect, in addition
to and notwithstanding any decision made by the Special Committee. The parties acknowledge and agree that any amendment to or waiver
of the Merger Agreement, the other Transaction Documents and/or any other agreement and/or transaction contemplated thereby requires
A/N’s consent in accordance with Section 3.3 of the Existing Stockholders Agreement.
11. Entire
Agreement. This Amendment, the Existing Stockholders Agreement and the Existing Letter Agreement, in each case, including
the attached Exhibits and Schedules hereto and thereto, constitute the entire agreement between the parties hereto pertaining to the
subject matter hereof and thereof and the other transactions specifically described herein and therein and supersede all prior agreements,
understandings, negotiations and discussions, whether oral or written, of the parties hereto relating to the subject matter of this Amendment,
the Existing Stockholders Agreement and the Existing Letter Agreement. Exhibits and attachments to this Amendment are incorporated into
this Amendment by reference and made a part hereof.
12. Incorporation
of Provisions. This Amendment shall be subject to Sections 8.2 through 8.13 of the Existing
Stockholders Agreement, which are hereby incorporated by reference herein, mutatis mutandis.
[Signature page follows]
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed.
| |
CHARTER COMMUNICATIONS, INC. |
| |
|
| |
By: |
/s/
Jessica M. Fischer |
| |
|
Name: |
Jessica M. Fischer |
| |
|
Title: |
Chief Financial Officer |
| |
LIBERTY BROADBAND CORPORATION |
| |
|
|
| |
By: |
/s/ Renee L. Wilm |
| |
|
Name: |
Renee L. Wilm |
|
|
Title: |
Chief Legal Officer and Chief Administrative Officer |
| |
ADVANCE/NEWHOUSE PARTNERSHIP |
| |
|
|
| |
By: |
/s/ Steven Miron |
| |
|
Name: |
Steven Miron |
|
|
Title: |
Chief Executive Officer |
Exhibit 10.4
Execution Version
Liberty Broadband Corporation
12300 Liberty Boulevard
Englewood, Colorado 80112
November 12, 2024
John C. Malone
John C. Malone 1995 Revocable Trust U/A DTD 3/6/1995
John C. Malone June 2003 Charitable Remainder Unitrust
The Leslie A. Malone 1995 Revocable Trust
12300 Liberty Boulevard
Englewood, Colorado 80112
Dear Ladies and Gentlemen:
Reference is made to the Agreement
and Plan of Merger, dated as of the date hereof, by and among Charter Communications, Inc., a Delaware corporation (“Parent”),
Fusion Merger Sub 1, LLC, a single member Delaware limited liability company and a direct wholly owned subsidiary of Parent (“Merger
LLC”), Fusion Merger Sub 2, Inc., a Delaware corporation and a direct wholly owned subsidiary of Merger LLC, and Liberty
Broadband Corporation, a Delaware corporation (the “Company”) (as may be amended from time to time, the “Merger
Agreement”). Capitalized terms used and not defined herein have the meanings provided to such terms in the Merger Agreement;
and
WHEREAS, in connection with
the transactions contemplated in the Merger Agreement, concurrently with the consummation of the GCI Divestiture, the Malone Group (as
defined herein) shall exchange a sufficient number of shares of Company Series B Common Stock held by the Malone Group for Company
Series C Common Stock (to the extent such number of shares is owned by members of the Malone Group) such that immediately following
such exchange, no set of holders comprised of five or fewer individuals, estates or trusts will collectively own (within the meaning of
Section 1563(d)(2) of the United States Internal Revenue Code of 1986, as amended (the “Code”)) more than
nineteen percent (19%) of the voting power of the Company (the “Holder Condition” and such exchange, the “Exchange”).
WHEREAS, the Company, John C.
Malone and John C. Malone 1995 Revocable Trust U/A DTD 3/6/1995, are parties to that certain Exchange Agreement dated as of June 13,
2022 (the “Exchange Agreement”), and such parties thereto desire to amend certain provisions thereof and memorialize
certain waivers with respect thereto, in each case, in accordance with this letter agreement.
NOW, THEREFORE, in consideration
of the covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
(a) The
Company shall have the right, but not the obligation, to provide written notice to the Malone Group at least five (5) Business Days
prior to the anticipated Exchange Closing (as defined below) (an “Exchange Notice”), specifying, to the extent practicable,
(i) the timing of the GCI Divestiture, (ii) a reasonable estimate of the number of shares of Company Series B Common Stock
that will need to be exchanged by the Malone Group for shares of Company Series C Common Stock in the Exchange not to exceed the
number of shares of Company Series B Common Stock then held by the Malone Group (the “Exchange Number”) necessary
to cause the Holder Condition to be satisfied and (iii) a reasonable estimate of the aggregate voting power of the Voting Securities
(as defined in the Company Charter) of the Company with respect to which the Malone Group has beneficial ownership as a percentage of
the voting power of all outstanding Voting Securities of the Company after giving effect to the Exchange.
(b) Following
the receipt of the Exchange Notice by the Malone Group, concurrent with the consummation of the GCI Divestiture, the Company and the Malone
Group shall consummate the Exchange (the “Exchange Closing”) remotely by the exchange of signatures; provided,
however, that the conditions set forth in Section 6 shall have been satisfied (or waived by the party entitled to the
benefit thereof).
(c) At
the Exchange Closing, on the terms and subject to the conditions contained in this letter agreement: (i) the Malone Group shall convey,
transfer and deliver to the Company the number of shares of Company Series B Common Stock beneficially owned by the Malone Group
equal to the Exchange Number (with the Company determining, in consultation with the Malone Group and considering in good faith the Malone
Group’s viewpoints with respect thereto, the specific members of the Malone Group that will convey, transfer and deliver such shares
and the number of shares to be delivered by each such member in the Exchange), together with any certificates representing such shares
of Company Series B Common Stock, free and clear of all Encumbrances other than Permitted Encumbrances (the “Company Series B
Exchange Shares”); (ii) the Company shall issue and deliver to the applicable members of the Malone Group such number of
shares of Company Series C Common Stock equal to the number of shares of the Company Series B Exchange Shares, which shall be
issued in book-entry form, and such shares shall be duly authorized, validly issued, fully paid and nonassessable and free and clear of
all Encumbrances other than Permitted Encumbrances (the “Company Series C Exchange Shares” and together with the
Company Series B Exchange Shares, the “Exchange Shares”), together with any certificates representing the number
of shares of Company Series B Common Stock as shall be equal to the difference between the number of shares of Company Series B
Common Stock represented by any certificates delivered pursuant to (i) above minus the number of shares of Company Series B
Common Stock to be delivered in the Exchange, free and clear of all Encumbrances other than Permitted Encumbrances; and (iii) upon
receipt of the transfers contemplated in clauses (i) and (ii), the Company and each member of the Malone Group transferring
Company Series B Exchange Shares, respectively, shall deliver an executed cross receipt, acknowledging the receipt of shares transferred
in the Exchange.
2. Rescission.
Unless otherwise agreed to in writing by the Malone Group and the Company, upon the Merger Agreement being terminated in accordance with
its terms without the Closing having occurred but following the Exchange Closing,
(a) the
Exchange will be automatically rescinded and treated as if neither the Exchange nor the Exchange Closing had ever occurred (the “Rescission”);
provided, however, in the event that the Malone Group disposes of any of the Company Series C Exchange Shares prior to the Rescission,
the Malone Group shall only be entitled to receive, in connection with the Rescission, such Company Series B Exchange Shares equal
to the number of Company Series C Exchange Shares beneficially owned by the Malone Group at the time of the Rescission;
(b) each
of the Company and the Malone Group hereby waives all, and none of the Company or the Malone Group shall have any, rights, duties or obligations
of any kind (other than rights, duties or obligations to effect the Rescission) in respect of the Exchange to receive or retain, (i) in
the case of the Malone Group, following the Exchange Closing, any shares of Company Series C Common Stock issued or delivered in
connection therewith (collectively, the “Malone Rescission Shares”), and, (ii) in the case of the Company, following
the Exchange Closing, any shares of Company Series B Common Stock delivered in connection therewith (collectively, the “Company
Rescission Shares”); and
(c) each
of the Company, on the one hand, and the Malone Group, on the other hand, will take such actions as are reasonably necessary to effect
the Rescission, and each will be deemed, upon the effectiveness of the Rescission, to make appropriate representations and warranties
to the other with respect to the valid issuance and conveyance, as applicable, and the lack of any Encumbrances upon the Malone Rescission
Shares or the Company Rescission Shares (other than Permitted Encumbrances), as applicable, so as to vest in the other good and valid
title to the Malone Rescission Shares or the Company Rescission Shares, as applicable.
(a) Representations
of the Malone Group. The Malone Group represents and warrants, severally and not jointly as to such member of the Malone Group only,
to the Company that:
| (i) | upon delivery to the Company of such member’s Company Series B Exchange Shares at the Exchange
Closing, in the manner provided in this letter agreement, the Company will have good and valid title to such shares of Company Series B
Exchange Series, free and clear of all Encumbrances other than Permitted Encumbrances and Encumbrances created by the Company or any of
its controlled Affiliates; |
| (ii) | such member of the Malone Group has all requisite legal capacity to execute and deliver this letter agreement
and to perform its obligations under this letter agreement, including the Exchange and the other transactions contemplated hereby; |
| (iii) | this letter agreement has been duly and validly executed and delivered by such member of the Malone Group
and, assuming the due execution and delivery hereof by the Company, is a valid and binding agreement of such member of the Malone Group,
enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar Laws affecting creditors’ rights generally, or by principles governing the availability of equitable remedies; |
| (iv) | the execution, delivery and performance by such member of the Malone Group of this letter agreement and
the consummation by such member of the Malone Group of the Exchange and the other transactions contemplated hereby requires no action
by or in respect of, or filings with, any Governmental Authority other than (x) as may be required by Competition Laws, including
the HSR Act, (y) such clearances, consents, approvals, Orders, licenses, authorizations, registrations, declarations, permits, filings
and notifications as may be required under applicable securities Laws and (z) any actions or filings under Laws (other than Competition
Laws) the absence of which would not reasonably be expected, individually or in the aggregate, to have a material adverse effect on the
ability of such member of the Malone Group to consummate the Exchange or the other transactions contemplated hereby, or prevent or materially
delay the consummation of the Exchange or the other transactions contemplated by this letter agreement; |
| (v) | the execution and delivery of this letter agreement, and the performance by such member of the Malone
Group of this letter agreement and the consummation by such member of the Malone Group of the Exchange and the other transactions contemplated
hereby will not (x) violate any applicable Law, (y) conflict with or constitute a default, breach or violation of (with or without
notice or lapse of time, or both) the terms, conditions or provisions of, or result in the acceleration of (or the creation in any Person
of any right to cause the acceleration of) any performance of any obligation 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 contract, agreement or instrument to which such member of the Malone Group is subject, which would prevent
such member of the Malone Group from performing any of its obligations hereunder, or (z) require any consent by or approval of or
notice to any other Person or entity (other than a Governmental Authority), except, in the case of clauses (x), (y) and
(z), as would not have a material adverse effect, individually or in the aggregate, on such member of the Malone Group’s
ability to consummate the Exchange or the other transactions contemplated hereby, or prevent or materially delay the consummation of the
Exchange or the other transactions contemplated by this letter agreement; and |
| (vi) | such member of the Malone Group is a sophisticated investor and an accredited investor (as defined in
Rule 501(a) of Regulation D of the Securities Act), with sufficient knowledge and experience in financial and business matters
to evaluate the merits and risks of the Exchange, and the other transactions contemplated hereby, and such member of the Malone Group
acknowledges that the offer and sale of any Exchange Shares hereunder has not been registered under the Securities Act or any securities
Laws of any state and that such Exchange Shares may not be sold, transferred, offered for sale, pledged, hypothecated or otherwise disposed
of without registration under the Securities Act, except pursuant to an exemption from such registration available under the Securities
Act. |
(b) Representations
of the Company. The Company represents and warrants to the Malone Group that:
| (i) | upon issuance and/or delivery to the applicable members of the Malone Group of the Company Series C
Exchange Shares at the Exchange Closing in the manner provided in this letter agreement, such Company Series C Exchange Shares will
be duly authorized, validly issued, fully paid and nonassessable and such member of the Malone Group will have good and valid title to
such Company Series C Exchange Shares so delivered, free and clear of all Encumbrances other than Permitted Encumbrances and Encumbrances
created by such member of the Malone Group or any of its controlled Affiliates; |
| (ii) | the Company is a Delaware corporation duly organized, validly existing and in good standing under the
Laws of the State of Delaware, and has full power and authority to execute and deliver this letter agreement and to consummate the Exchange
and the other transactions contemplated hereby; |
| (iii) | the execution and delivery of this letter agreement by the Company, and performance of this letter agreement
by the Company, including the consummation of the Exchange and the other transactions contemplated hereby, has been duly authorized by
all requisite corporate power; |
| (iv) | this letter agreement has been duly and validly executed and delivered by the Company and, assuming the
due execution and delivery hereof by each member of the Malone Group, is a valid and binding agreement of the Company, enforceable in
accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar Laws affecting creditors’ rights generally, or by principles governing the availability of equitable remedies; |
| (v) | the execution, delivery and performance by the Company of this letter agreement and the consummation by
the Company of the Exchange, and the other transactions contemplated hereby requires no action by or in respect of, or filings with, any
Governmental Authority, other than (x) as may be required by any Competition Laws, including the HSR Act, (y) such clearances,
consents, approvals, Orders, licenses, authorizations, registrations, declarations, permits, filings and notifications as may be required
under applicable securities Laws and (z) any actions or filings under Laws (other than Competition Laws) the absence of which would
not reasonably be expected, individually or in the aggregate, to have a material adverse effect on the ability of the Company to consummate
the Exchange or the other transactions contemplated hereby or prevent or materially delay the consummation of the Exchange or the other
transactions contemplated by this letter agreement; and |
| (vi) | the execution, delivery and performance by the Company of this letter agreement and the consummation of
the Exchange and the other transactions contemplated hereby will not (x) violate any applicable Law, (y) conflict with or constitute
a default, breach or violation of (with or without notice or lapse of time, or both) the terms, conditions or provisions of, or result
in the acceleration of (or the creation in any Person of any right to cause the acceleration of) any performance of any obligation 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 contract, agreement or instrument
to which the Company is subject, including without limitation the Company Charter, the Company Bylaws or similar organization documents
of any of the Company’s controlled Affiliates, which would prevent it from performing any of its obligations hereunder, or (z) require
any consent by or approval of or notice to any other Person or entity (other than a Governmental Authority), except, in the case of clauses
(x), (y) and (z), as would not have a material adverse effect, individually or in the aggregate, on the Company’s ability to
consummate the Exchange and the other transactions contemplated hereby, or prevent or materially delay the consummation of the Exchange
and the other transactions contemplated by this letter agreement. |
| 4. | Reasonable Best Efforts. |
(a) The
Company and the Malone Group shall cooperate with each other and use their respective reasonable best efforts to (i) consummate the
Exchange and any other transactions contemplated by this letter agreement in the manner contemplated by this letter agreement and (ii) execute
documents reasonably necessary to effect the Exchange and any other transactions contemplated by this letter agreement.
(b) The
Company and the Malone Group shall cooperate with each other and shall prepare and file all necessary filings, applications, notices and/or
similar instruments or documentation, and use their respective reasonable best efforts to obtain as promptly as practicable all consents,
approvals or non-objections, as applicable, of all third parties and Governmental Authorities that, in each case, are required under applicable
Law to consummate the Exchange and the other transactions contemplated by this letter agreement.
(a) Each
of the Company and the members of the Malone Group agree that the Exchange is a transaction intended to qualify, for U.S. federal income
tax purposes, as an exchange pursuant to Section 1036 of the Code and/or a reorganization under Section 368(a)(1)(E) of
the Code, in either case, which is tax-free (except to the extent of any consideration received by the Malone Group other than Company
Series C Exchange Shares), and except to the extent otherwise required pursuant to a “determination” (within the meaning
of Section 1313(a) of the Code), the Company and the Malone Group agree not to take any position on any Tax Return, or take
any position for Tax purposes, that is inconsistent with the Exchange qualifying for U.S. federal income tax purposes as an exchange under
Section 1036(a) of the Code and/or a reorganization under Section 368(a)(1)(E) of the Code which is tax-free (except
to the extent of any consideration received by the Malone Group other than Company Series C Exchange Shares); provided, that in the
event of a Rescission, the Company and the Malone Group shall not take any position on any Tax Return, or take any position for Tax purposes,
that is inconsistent with the Exchange and any exchange effecting a Rescission (a “Rescission Exchange”) qualifying,
for U.S. federal income tax purposes, either (A) to the extent the Exchange and a corresponding Rescission Exchange occur in the
same tax year, as disregarded transactions or exchanges under Section 1036(a) of the Code which are disregarded or tax-free,
as applicable, except to the extent of any consideration received by the Malone Group other than Company Series C Exchange Shares
and Company Rescission Shares, or (B) to the extent the Exchange and a corresponding Rescission Exchange occur in different tax years,
as exchanges under Section 1036(a) of the Code which are tax-free, except to the extent of any consideration received by the
Malone Group other than Company Series C Exchange Shares and Company Rescission Shares. This letter agreement shall constitute a
“plan of reorganization” within the meaning of Sections 1.368-2(g) and 1.368-3(a) of the Treasury Regulations with
respect to the Exchange under this letter agreement.
| 6. | Conditions to Parties’ Obligation to Effect the Exchange. |
(a) Joint
Conditions to the Exchange. The parties shall be subject to the satisfaction prior to or at the Exchange of the following conditions:
(a) no Order entered, enacted, promulgated, enforced or issued by any court or other Governmental Authority of competent jurisdiction,
shall be in effect that prohibits, renders illegal or enjoins the consummation of the Exchange and (b) the consummation of the GCI
Divestiture shall be reasonably expected to occur concurrently with the consummation of the Exchange.
(b) Conditions
to the Company’s Obligation to Effect the Exchange. The obligation of the Company to effect the Exchange is also subject to
the satisfaction, or (to the extent legally permissible) waiver in writing by the Company, prior to or at the Exchange of the following
conditions: (i) the representations set forth in Section 3(a) of each member of the Malone Group shall be true and
correct in all material respects in each case as of the date of this letter agreement and as of the Exchange Closing as though made on
and as of the Exchange Closing except for (x) those representations and warranties made as of a specified date, which shall be true
and correct in all material respects as of such date, and (y) de minimis inaccuracies; (ii) each member of the Malone
Group shall have performed in all material respects all covenants required to be performed by it prior to or at the Exchange Closing;
and (iii) each member of the Malone Group shall have delivered to the Company a certificate duly signed by an authorized representative
of such member of the Malone Group that the conditions set forth in this Section 6(b) have been satisfied.
(c) Conditions
to the Malone Group’s Obligation to Effect the Exchange. The obligation of the Malone Group to effect the Exchange is also subject
to the satisfaction, or (to the extent legally permissible) waiver in writing by each member of the Malone Group, prior to or at the Exchange
of the following conditions: (i) the representations of the Company set forth in Section 3(b) shall be true and
correct in all material respects in each case as of the date of this letter agreement and as of the Exchange Closing as though made on
and as of the Exchange Closing except for (x) those representations and warranties made as of a specified date, which shall be true
and correct in all material respects as of such date, and (y) de minimis inaccuracies; (ii) the Company shall have performed
in all material respects all covenants required to be performed by it prior to or at the Exchange Closing; (iii) in connection with
the GCI Divestiture, the Malone Group shall be entitled to receive with respect to the Company Series B Exchange Shares, the same
per share dividend of GCI Spinco stock as is payable to all holders of Company Series B Common Stock as of the record date for the
GCI Spinco distribution and (iv) the Company shall have delivered to the Malone Group a certificate duly signed by an authorized
officer of the Company that the conditions set forth in this Section 6(c) have been satisfied.
7. Exchange
Agreement.
(a) Section 4(a) of
the Exchange Agreement is hereby amended to insert immediately following Section 4(a)(ii) and immediately prior to
Section 4(b), the following: “Notwithstanding anything in this Section 4(a) to the contrary,
Section 4(a) shall be inapplicable with respect to the GCI Divestiture (as such term is defined in the Agreement and Plan
of Merger, dated as of November 12, 2024 by and among Charter Communications, Inc., Fusion Merger Sub 1, LLC, Fusion
Merger Sub 2, Inc., and the Company (the “Merger Agreement”)) or, for the avoidance of doubt, the Exchange or the
Rescission (as such terms are defined in the letter agreement, dated as of November 12, 2024 by and among the Company, John C.
Malone 1995 Revocable Trust U/A DTD 3/6/1995, John C. Malone June 2003 Charitable Remainder Unitrust, The Leslie A. Malone 1995
Revocable Trust and John C. Malone (the “Letter Agreement”)).”
(b) In
accordance with Section 7(e) of the Exchange Agreement, a majority of the Independent Directors have determined that, in connection
with the GCI Divestiture, the parties to the Exchange Agreement and GCI Spinco (as defined in the Merger Agreement) shall not be required
to negotiate, and shall not enter into, an exchange agreement with respect to GCI Spinco in substantially the form of the Exchange Agreement
to replicate the benefits and obligations of the parties to the Exchange Agreement.
(c) Section 12(a)(iii) of
the Exchange Agreement shall be amended to read in its entirety as follows: “(iii) other than in a circumstance where this
Agreement is terminated pursuant to Section 12(a)(ii), upon the Malone Voting Power ceasing to constitute at least 20% of the outstanding
voting power of the Voting Securities of the Company; provided, however, that notwithstanding the foregoing, this Agreement will not terminate
as a result of the consummation of the Exchange (as defined in the Letter Agreement) and this Agreement shall not be terminated pursuant
to this Section 12(a)(iii), if applicable, prior to the earlier of (x) the consummation of the mergers contemplated by the Merger
Agreement or (y) the consummation of the Rescission (as defined in the Letter Agreement).
(d) Section 2
of the Exchange Agreement shall be amended to insert immediately following Section 2(d) and immediately prior to Section 3,
the following: “(e) Notwithstanding anything in this Section 2 to the contrary, at all times on or after the Exchange
(as defined in the Letter Agreement) and prior to the termination of the Merger Agreement in accordance with its terms, none of the Company
and Dr. Malone or the Trust shall consummate a Dilutive Event Exchange. The parties hereto acknowledge and agree that,
notwithstanding anything herein to the contrary, on and after the Exchange (as defined in the Letter Agreement) and prior to the termination
of the Merger Agreement in accordance with its terms, none of the Malone Series C Exchangeable Shares shall be exchanged for shares
of Series B Common Stock (including, without limitation, any Available Series B Shares).”
(e) Section 4
of the Exchange Agreement shall be amended to insert immediately following Section 4(c) and immediately prior to Section 5,
the following: “(d) Notwithstanding anything in this Section 4 to the contrary, at all times on or after the Exchange
(as defined in the Letter Agreement) and prior to the termination of the Merger Agreement in accordance with its terms, none of the Company
and Dr. Malone or the Trust shall consummate a Fundamental Event Exchange. The parties hereto acknowledge and agree that, notwithstanding
anything herein to the contrary, on and after the Exchange (as defined in the Letter Agreement) and prior to the termination of the Merger
Agreement in accordance with its terms, none of the Malone Series C Exchangeable Shares shall be exchanged for shares of Series B
Common Stock (including, without limitation, any Available Series B Shares).”
(f) Notwithstanding
anything herein to the contrary, except as expressly set forth in this Section 7 (or any other provision hereof necessary to give
effect of this Section 7), all of the terms and conditions of the Exchange Agreement shall continue in full force and effect.
(g) The
Exchange Agreement, as amended pursuant to this Section 7, constitutes the entire agreement among the parties thereto pertaining
to the subject matter thereof and of this Section 7 and supersede all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the applicable parties to the Exchange Agreement relating thereto.
(h) Notwithstanding
anything herein to the contrary, this Section 7 shall be subject to Sections 13 through 18 of the Exchange Agreement, which are hereby
incorporated by reference herein, mutatis mutandis.
8. Termination.
If (a) the Merger Agreement is terminated in accordance with its terms without the Closing having occurred and prior to the Exchange
Closing, effective upon such termination or (b) the Merger Agreement is terminated in accordance with its terms without the Closing
having occurred but following the Exchange Closing, effective upon the completion of the Rescission pursuant to Section 2, in either
such case, this letter agreement (exclusive of Section 7) shall forthwith become null and void and of no effect and the obligations
of the parties under this letter agreement shall terminate, without liability of any of the parties (or any stockholder, director, officer,
employee, consultant, financial advisor, legal counsel, financing source, accountant, insurer or other advisor, agent or representative
of such party), provided that nothing contained herein shall relieve any party to this letter agreement from any liability for
damages resulting from (i) fraud or (ii) Willful Breach of any covenant by such party prior to such termination, in each case,
as determined by a court of competent jurisdiction pursuant to a final and nonappealable judgment. This letter agreement may (subject
to the foregoing) also be terminated by mutual consent of the parties in a written instrument.
9. Governing
Law. This letter agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflicts of law thereof.
10. Forum;
Venue. Any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection
with, this letter agreement will be brought exclusively in the Delaware Chancery Courts, or, if the Delaware Chancery Courts do not have
subject matter jurisdiction, in the state courts of the State of Delaware located in Wilmington, Delaware, or in any other venue required
by Delaware law, or in the federal courts located in the State of Delaware. Each of the parties hereby consents to personal jurisdiction
in any such action, suit or proceeding brought in any such court (and of the appropriate appellate courts therefrom) and irrevocably waives,
to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action
or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient
forum. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, each party agrees that service of process on such party as provided in
Section 13 shall be deemed effective service of process on such party.
11. Waiver
of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING
OUT OF OR RELATED TO THIS LETTER AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
12. Remedies;
Specific Enforcement. The parties acknowledge and agree that irreparable damage would occur in the event that any provision of this
letter agreement was not to be performed in accordance with its specific terms or were otherwise breached, and that monetary damages,
even if available, would not be an adequate remedy therefor. It is accordingly agreed that the parties shall be entitled to an injunction
or injunctions to prevent breaches of this letter agreement and to enforce specifically the performance of terms and provisions of this
letter agreement in any court referred to in Section 10 hereof without proof of actual damages (and each party hereby waives
any requirement for the securing or posting of any bond in connection with such remedy), this being in addition to any other remedy to
which they are entitled at law or in equity.
13. Notice.
All notices, requests, claims, demands and other communications under this letter agreement shall be in writing and shall be deemed given
(a) on the date of delivery if delivered personally or sent via e-mail or (b) on the first (1st) Business Day following the
date of dispatch if sent by a nationally recognized overnight courier (providing proof of delivery), in each case to the parties at the
following addresses (or at such other address for a party as shall be specified by like notice):
| if to the Malone Group, to: |
| |
|
| |
John C. Malone |
| |
[Separately provided] |
| |
12300 Liberty Boulevard, 2nd Floor |
| |
Englewood, Colorado 80112 |
| |
Email: [Separately provided] |
| |
with a copy to (which shall not constitute notice): |
| |
|
| |
Steven D. Miller |
| |
[Separately provided] |
| |
Email: [Separately provided] |
| if to the Company, to: |
| |
|
| |
Liberty Broadband Corporation |
| |
12300 Liberty Boulevard |
| |
Englewood, Colorado 80112 |
| |
Attention: Chief Legal Officer |
| |
Email: [Separately provided] |
| |
|
| |
with a copy to (which shall not constitute notice): |
| |
O’Melveny & Myers LLP |
| |
1301 6th Ave Suite 1700 |
| |
New York, NY 10019 |
| |
Attention: |
C. Brophy Christensen |
| |
|
Noah K. Kornblith |
| |
Email: |
bchristensen@omm.com |
| |
|
nkornblith@omm.com |
or such other address, email address or facsimile
number as such party may hereafter specify by like notice to the other parties hereto.
14. Assignment.
Neither this letter agreement nor any of the rights, interests or obligations under this letter agreement shall be assigned, in whole
or in part, by operation of Law or otherwise by any of the parties without the prior written consent of the other parties hereto. Any
purported assignment in breach of the foregoing is void ab initio and of no force and effect whatsoever. This letter agreement shall be
binding on all permitted heirs, successors and assigns, and in the event of Dr. John C. Malone’s death, this letter agreement
shall continue to bind each member of the Malone Group.
15. Interpretation.
When a reference is made in this letter agreement to a Section, such reference shall be to a Section of this letter agreement unless
otherwise indicated. The headings contained in this letter agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this letter agreement. Whenever the words “include”, “includes” or “including”
are used in this letter agreement, they shall be deemed to be followed by the words “without limitation”. The words “hereof”,
“herein” and “hereunder” and words of similar import when used in this letter agreement shall refer to this letter
agreement as a whole and not to any particular provision of this letter agreement.
16. Amendments;
Waivers. Any provision of this letter agreement may be amended or waived if, and only if, such amendment or waiver is in writing and
signed (a) in the case of an amendment, by each of the parties, and (b) in the case of a waiver, by the party against whom the
waiver is to be effective. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other
right, power or privilege.
17. Severability.
Whenever possible, each provision or portion of any provision of this letter agreement shall be interpreted in such manner as to be effective
and valid under applicable law. In the event that any provision of this letter agreement, or the application thereof, becomes or is declared
by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this letter agreement will continue in full
force and effect and the application of such provision will be interpreted so as reasonably to effect the intent of the parties. The parties
further agree to replace such void or unenforceable provision of this letter agreement with a valid and enforceable provision that will
achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.
18. Counterparts.
This letter agreement may be executed in separate counterparts each of which will be an original and all of which taken together will
constitute one and the same agreement.
19. Effectiveness
of Agreements; No Third-Party Beneficiaries. Except as set forth in the next sentence, the covenants and agreements of the parties
contained herein or in any certificate delivered pursuant hereto prior to or at the Exchange Closing will terminate at the Exchange Closing,
provided that nothing contained herein shall relieve any party to this letter agreement from any liability for damages resulting
from (a) fraud or (b) Willful Breach of any covenant by such party, in each case, as determined by a court of competent jurisdiction
pursuant to a final and nonappealable judgment. The covenants and other agreements set forth in this letter agreement that by their terms
apply, or that are to be performed, in whole or in part, after the Exchange Closing, shall survive following the Exchange Closing.
20. Definitions.
(a) “Encumbrance”
means any mortgage, deed of trust, lien (statutory, contractual or otherwise), pledge, hypothecation, charge, title retention device,
title defect, assignment, adverse claim, encumbrance, option, right of first refusal or first offer, preemptive right or security interest
of any kind or nature (including any restriction on the voting of any security, any restriction on the transfer of any security or other
asset, any restriction on the receipt of any income derived from any asset, any restriction on the use of any asset and any restriction
on the possession, exercise or transfer of any other attribute of ownership of any asset).
(b) “Permitted
Encumbrance” means (i) any Encumbrance under this letter agreement (including, without limitation, pursuant to Section 2
hereof), and (ii) any restrictions on Transfer arising under securities Laws of general applicability.
(c) “Malone
Group” means John C. Malone, the John C. Malone 1995 Revocable Trust U/A DTD 3/6/1995, the John C. Malone June 2003 Charitable
Remainder Unitrust and The Leslie A. Malone 1995 Revocable Trust.
(d) “Transfer”
means a sale, transfer or disposition of beneficial ownership, directly or indirectly, whether by operation of law or otherwise.
[Signature Page Follows]
If the foregoing
is consistent with your understanding, please so indicate by your signature below, which will constitute the agreement of the parties
hereto.
| |
LIBERTY BROADBAND CORPORATION |
| |
|
| |
By: |
/s/ Renee L. Wilm |
| |
Name: |
Renee L. Wilm |
| |
Title: |
Chief Legal Officer and |
| |
|
Chief Administrative Officer |
| |
|
|
| [Signature Page to Exchange Side Letter Agreement] |
| |
/s/ John C. Malone |
| |
JOHN C. MALONE |
| |
|
| |
THE JOHN C. MALONE 1995 REVOCABLE TRUST |
| |
|
| |
By: |
/s/ John C. Malone |
| |
Name: |
John C. Malone |
| |
Title: |
Trustee |
| |
|
|
| |
THE LESLIE A. MALONE 1995 REVOCABLE TRUST |
| |
|
| |
By: |
/s/ John C. Malone |
| |
Name: |
John. C. Malone |
| |
Title: |
Trustee |
| |
|
|
| |
JOHN C. MALONE JUNE 2003 CHARITABLE REMAINDER UNITRUST |
| |
|
| |
By: |
/s/ John C. Malone |
| |
Name: |
John C. Malone |
| |
Title: |
Trustee |
| |
|
|
| [Signature Page to Exchange Side Letter Agreement] |
Exhibit 10.5
Execution
Version
ASSUMPTION AND JOINDER AGREEMENT TO
TAX SHARING AGREEMENT
This ASSUMPTION AND
JOINDER AGREEMENT TO TAX SHARING AGREEMENT is made and entered into as of November 12, 2024 (the “Assumption and Joinder
Agreement”), by and among Charter Communications, Inc., a Delaware corporation (“Parent”), Liberty
Broadband Corporation, a Delaware corporation (the “Company”), Grizzly Merger Sub 1, LLC, a Delaware limited
liability company (successor to GCI Liberty, Inc., a Delaware corporation) (“Grizzly Merger Sub”), and
Qurate Retail, Inc., a Delaware corporation (f/k/a Liberty Interactive Corporation) (“Qurate Retail”).
Capitalized terms used but not defined herein will have the meanings ascribed thereto in the Merger Agreement (as defined
below).
W I T N E S S E T H
WHEREAS, Qurate Retail and Grizzly
Merger Sub are parties to the Tax Sharing Agreement, dated as of March 9, 2018 (as the same may be amended from time to time, the
“Tax Sharing Agreement”);
WHEREAS, the Company became
a party to the Tax Sharing Agreement pursuant to that certain Assumption and Joinder Agreement to Tax Sharing Agreement, dated as of August 6,
2020, by and among the Company, Grizzly Merger Sub and Qurate Retail (the “Company Joinder”);
WHEREAS, simultaneously
with the execution of this Assumption and Joinder Agreement, Parent, Fusion Merger Sub 1, LLC, a single member Delaware limited
liability company and a direct wholly owned subsidiary of Parent (“Merger LLC”), Fusion Merger Sub 2, Inc.,
a Delaware corporation and a direct wholly owned subsidiary of Merger LLC (“Merger Sub”), and the Company are
entering into the Agreement and Plan of Merger, dated as of November 12, 2024 (as the same may be amended from time to time, the
“Merger Agreement”), pursuant to which, upon the terms and subject to the conditions set forth therein,
(i) Merger Sub will merge (the “Merger”) with and into the Company, with the Company surviving the Merger
(the “Surviving Corporation”), and (ii) immediately following the Merger, the Company as the surviving
corporation in the Merger and a wholly owned subsidiary of Merger LLC, will merge with and into Merger LLC (the “Upstream
Merger” and together with the Merger, the “Combination”), with Merger LLC surviving the Upstream Merger
(the “Surviving Company”); and
WHEREAS, in connection with
the execution of the Merger Agreement and the transactions contemplated thereby, Parent is entering into this Assumption and Joinder Agreement,
pursuant to which Parent agrees, effective only upon (and subject to the occurrence of) the closing of the Merger (the “Closing”),
to be bound by and perform all of the covenants and agreements made by Grizzly Merger Sub and the Company (and the Surviving Corporation
and the Surviving Company) under the Tax Sharing Agreement and the Company Joinder and to be jointly and severally liable with Grizzly
Merger Sub and the Company (and the Surviving Corporation and the Surviving Company) for all of the obligations and liabilities of Grizzly
Merger Sub and the Company (and the Surviving Corporation and the Surviving Company) under the Tax Sharing Agreement and the Company Joinder
(collectively, the “Joint Obligations”), and Qurate Retail agrees, effective only upon (and subject to the occurrence
of) the Closing, that Parent shall be entitled to exercise and enforce all of the rights of Grizzly Merger Sub and the Company (and the
Surviving Corporation and the Surviving Company) under the Tax Sharing Agreement and the Company Joinder (the “Joint Rights”).
NOW, THEREFORE, in consideration
of the foregoing and the mutual representations, warranties, covenants and agreements contained herein, the parties to this Assumption
and Joinder Agreement hereby agree as follows:
Section 1. Assumption
and Joinder.
(a) Parent
will be, effective only as of (and subject to the occurrence of) the Closing, (i) bound by, and will perform and observe, the Joint
Obligations, and (ii) jointly and severally liable with Grizzly Merger Sub and the Company (and the Surviving Corporation and the
Surviving Company) for all of the Joint Obligations.
(b) Parent,
together with Grizzly Merger Sub and the Company (and the Surviving Corporation and the Surviving Company), will be, effective only as
of (and subject to the occurrence of) the Closing, entitled to exercise and enforce all of the Joint Rights.
(c) Following
the date hereof, in the event of (i) any sale, assignment, transfer or other disposition (whether or not for separate consideration)
of all or substantially all of the assets of Parent (on a consolidated basis) to any Person or group including, without limitation, by
means of a stock dividend, stock redemption, spin-off, split-off, cancellation or elimination of any securities (including, for the avoidance
of doubt, any equity) or debt issued by such Person or a member of such group, or similar transaction or event or otherwise (each Person
(1) whose securities are issued in payment or exchange therefor or (2) if no securities are so issued, who holds title to such
assets or whose debt or securities are so cancelled or eliminated, a “Parent Asset Successor”), in one or a series
of related transactions, or (ii) any merger, consolidation, statutory share exchange, conversion of Parent from a corporation to
a limited liability company or other legal entity or other business combination or similar transaction or series of related transactions
affecting Parent, that results in the exchange or conversion of equity securities of Parent for or into equity securities or other consideration
consisting, in whole or in part, of (x) securities issued by Parent’s successor or the surviving entity upon consummation of
such transaction(s) (the “Parent Successor Entity”) or, if the successor or surviving entity in such transaction(s) is
a Subsidiary of a publicly traded or privately held parent company (the “Successor Parent Company”), securities of
the Successor Parent Company delivered in such transaction(s), or (y) cash or other consideration paid or payable by any Parent Successor
Entity or Successor Parent Company (the applicable of the Parent Asset Successor, the Parent Successor Entity and the Successor Parent
Company, the “Parent Successor”), then prior to effecting any such transaction described in clause (i) or clause
(ii) (or in the case of a series of transactions, the first such transaction), Parent shall cause each Parent Successor to execute
and deliver to Qurate Retail an instrument, in form and substance consistent with this Assumption and Joinder Agreement, pursuant to which
such Parent Successor has agreed, effective upon the later of the Closing and the consummation of such transaction, to (i) be bound
by, and perform and observe, the Joint Obligations, (ii) be jointly and severally liable with Parent, Grizzly Merger Sub and the
Company (and the Surviving Company) for all of the Joint Obligations, and (iii) become a party to the Tax Sharing Agreement and be
treated as a successor of Parent within the meaning of Section 8.2 of the Tax Sharing Agreement.
(d) Following
the date hereof, in the event that Parent seeks or determines to sell, assign, transfer or otherwise dispose of (including, without limitation,
through a merger or other business combination involving Parent or any Parent Successor) a material portion of its assets (on a consolidated
basis), as determined by Parent in good faith, then prior to the consummation of such transaction (or the first transaction of any series
of related transactions), Parent shall provide Qurate Retail with information regarding the financial capacity, after giving effect to
such transaction(s), of Parent to satisfy the Joint Obligations under the Tax Sharing Agreement and, to the extent reasonably requested
by Qurate Retail, will provide written assumptions or other assurances reasonably necessary to evidence Parent’s ability and capacity
to fulfill the Joint Obligations, in each case, to the extent permitted by applicable confidentiality obligations and law.
Section 2. Party to
Tax Sharing Agreement. Effective only as of (and subject to the occurrence of) the Closing, pursuant to this Assumption and Joinder
Agreement, Parent shall be deemed a party to the Tax Sharing Agreement as though an original signatory thereto without any further action
by any Person and shall be bound by, and subject to all of the terms and conditions of, the Tax Sharing Agreement.
Section 3. Company Successors.
The parties acknowledge and agree that, effective only upon (and subject to the occurrence of) the Closing, Parent, the Surviving Corporation
and, following the Upstream Merger Effective Time, the Surviving Company will become successors to the Company within the meaning of Section 8.2
of the Tax Sharing Agreement, and any reference to the Company (including, for the avoidance of doubt, any reference to “Splitco”)
in the Tax Sharing Agreement will include, following the Closing, Parent, the Surviving Corporation and, following the Upstream Merger
Effective Time, the Surviving Company for all purposes of the Tax Sharing Agreement.
Section 4. Notices.
All notices and other communications to Parent or, following the Closing, the Surviving Corporation and, following the Upstream Merger
Effective Time, the Surviving Company under the Tax Sharing Agreement shall be in writing and shall be delivered in person, by email,
by facsimile (with confirming copy sent by one of the other delivery methods specified herein), or by overnight courier or sent by certified,
registered or express air mail, postage prepaid, and shall be deemed given when so delivered in person or by email, or when so received
by facsimile or courier, or, if mailed, three (3) calendar days after the date of mailing, as follows:
| |
Charter Communications, Inc. |
| |
400 Washington Blvd. |
| |
Stamford, CT 06902 |
| |
Attention: |
Executive Vice President, General Counsel and Corporate Secretary |
| |
Email: |
[Separately
provided] |
| |
|
| |
with a copy to (which shall not constitute
notice): |
| |
|
| |
Wachtell, Lipton, Rosen &
Katz |
| |
51 W 52nd St. |
| |
New York, NY 10019 |
| |
Facsimile: (212) 403-1000 |
| |
Attention: |
Steven A. Cohen |
| |
|
Steven R. Green |
| |
Email: |
SACohen@wlrk.com |
| |
|
SRGreen@wlrk.com |
Section 5. Binding Effect;
Assignment. This Assumption and Joinder Agreement and all of the provisions hereof shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted assigns. Neither this Assumption and Joinder Agreement nor any of
the rights, interests or obligations hereunder shall be assigned by any party hereto without the prior written consent of the other parties,
except to the extent such assignment is required pursuant to Section 1(c) of this Assumption and Joinder Agreement. Any
assignment in violation of the preceding sentence shall be void and of no effect.
Section 6. Governing
Law; Jurisdiction. This Assumption and Joinder Agreement and the legal relations among the parties hereto will be governed in all
respects, including validity, interpretation and effect, by the laws of the State of Delaware applicable to contracts made and performed
wholly therein, without giving effect to any choice or conflict of laws provisions or rules that would cause the application of the
laws of any other jurisdiction. Each of the parties hereto irrevocably agrees that any legal action or proceeding with respect to this
Assumption and Joinder Agreement, and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment
in respect of this Assumption and Joinder Agreement, and the rights and obligations arising hereunder brought by the other party hereto
or its successors or assigns, shall be brought and determined exclusively in the Delaware Court of Chancery and any state appellate court
therefrom within the State of Delaware (or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter,
any state or federal court within the State of Delaware). Each of the parties hereto hereby irrevocably submits with regard to any such
action or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid
courts and agrees that it will not bring any action relating to this Assumption and Joinder Agreement or the matters contemplated hereby
in any court other than the aforesaid courts. Each of the parties hereto hereby irrevocably waives, and agrees not to assert as a defense,
counterclaim or otherwise, in any action or proceeding with respect to this Assumption and Joinder Agreement (a) any claim that it
is not personally subject to the jurisdiction of the above named courts for any reason other than the failure to serve in accordance with
Section 4 and this Section 6, (b) any claim that it or its property is exempt or immune from jurisdiction
of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) to the fullest extent permitted by applicable
law, any claim that (i) the suit, action or proceeding in such court is brought in an inconvenient forum, (ii) the venue of
such suit, action or proceeding is improper or (iii) this Assumption and Joinder Agreement or the subject matter hereof may not be
enforced in or by such courts. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether
within or without the jurisdiction of any such court. Without limiting the foregoing, each party agrees that service of process on such
party as provided in Section 4 of this Assumption and Joinder Agreement or Section 8.6 of the Tax Sharing Agreement shall
be deemed effective service of process on such party. EACH OF THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS TO TRIAL BY JURY IN CONNECTION WITH ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS
ASSUMPTION AND JOINDER AGREEMENT OR THE MATTERS CONTEMPLATED HEREBY.
Section 7. Termination/Amendment.
If the Merger Agreement is terminated in accordance with its terms without the Closing having occurred, effective upon such termination,
this Assumption and Joinder Agreement shall automatically terminate and immediately cease to be of any further force and effect, and no
party hereto will thereafter have any rights or obligations hereunder. This Assumption and Joinder Agreement may also be amended, modified
or terminated by mutual consent of the parties hereto in a written instrument.
Section 8. Counterparts.
This Assumption and Joinder Agreement may be executed in two or more identical counterparts, each of which shall be deemed to be an original,
and all of which together shall constitute one and the same agreement. This Assumption and Joinder Agreement may be delivered by facsimile
transmission of a signed copy thereof.
Section 9. Severability.
Any provision of this Assumption and Joinder Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof. Any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Upon a
determination that any provision of this Assumption and Joinder Agreement is prohibited or unenforceable in any jurisdiction, the parties
shall negotiate in good faith to modify this Assumption and Joinder Agreement so as to effect the original intent of the parties as closely
as possible in an acceptable manner in order that the provisions contemplated hereby are consummated as originally contemplated to the
fullest extent possible.
Section 10. Amendments;
Waivers. Any provision of this Assumption and Joinder Agreement may be amended or waived if, but only if, such amendment or waiver
is in writing and is signed, in the case of an amendment, by each party hereto, or in the case of a waiver, by the party against whom
the waiver is to be effective. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as
a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. Except as otherwise provided herein, the rights and remedies herein provided shall be cumulative and
not exclusive of any rights or remedies provided by applicable Law. Any consent provided under this Assumption and Joinder Agreement must
be in writing, signed by the party against whom enforcement of such consent is sought.
Section 11. Headings.
The headings contained in this Assumption and Joinder Agreement are for reference purposes only and will not affect in any way the meaning
or interpretation of this Assumption and Joinder Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have executed
this Assumption and Joinder Agreement as of the day and year first above written.
| |
LIBERTY BROADBAND CORPORATION |
| |
|
|
| |
By: |
/s/ Renee L. Wilm |
| |
|
Name: |
Renee L. Wilm |
| |
|
Title: |
Chief Legal Officer and Chief Administrative Officer |
| |
|
|
| |
GRIZZLY MERGER SUB 1, LLC |
| |
|
|
| |
By: |
/s/ Renee L. Wilm |
| |
|
Name: |
Renee L. Wilm |
| |
|
Title: |
Chief Legal Officer and Chief Administrative Officer |
| |
|
|
| |
QURATE RETAIL, INC. |
| |
|
|
| |
By: |
/s/ Craig Troyer |
| |
|
Name: |
Craig Troyer |
| |
|
Title: |
Senior Vice President and Assistant Secretary |
| |
|
|
| |
CHARTER COMMUNICATIONS, INC. |
| |
|
|
| |
By: |
/s/ Jessica M. Fischer |
| |
|
Name: |
Jessica M. Fischer |
| |
|
Title: |
Chief Financial Officer |
[Signature Page to
Tax Sharing Agreement Joinder Agreement]
Exhibit 10.6
Execution Version
ASSUMPTION AND JOINDER AGREEMENT TO
INDEMNIFICATION AGREEMENT
This ASSUMPTION AND
JOINDER AGREEMENT TO INDEMNIFICATION AGREEMENT is made and entered into as of November 12, 2024 (the “Assumption and Joinder
Agreement”), by and among Charter Communications, Inc., a Delaware corporation (“Parent”), Liberty
Broadband Corporation, a Delaware corporation (the “Company”), Grizzly Merger Sub 1, LLC, a Delaware limited
liability company (successor to GCI Liberty, Inc., a Delaware corporation) (“Grizzly Merger Sub”), LV
Bridge, LLC, a Delaware limited liability company and Wholly Owned Subsidiary of the Company (“LV Bridge”),
Qurate Retail, Inc., a Delaware corporation (f/k/a Liberty Interactive Corporation) (“Qurate Retail”) and
Liberty Interactive LLC, a Delaware limited liability company and Wholly Owned Subsidiary of Qurate (“LI LLC”).
Capitalized terms used but not defined herein will have the meanings ascribed thereto in the Merger Agreement (as defined
below).
W I T N E S S E T H
WHEREAS, Qurate Retail, LI LLC,
Grizzly Merger Sub and LV Bridge are parties to the Indemnification Agreement, dated as of March 9, 2018 (as the same may be amended
from time to time, the “Indemnification Agreement”);
WHEREAS, the Company became
a party to the Indemnification Agreement pursuant to that certain Assumption and Joinder Agreement to Indemnification Agreement, dated
as of August 6, 2020, by and among the Company, Grizzly Merger Sub, LV Bridge, Qurate Retail and LI LLC (the “Company Joinder”);
WHEREAS, simultaneously
with the execution of this Assumption and Joinder Agreement, Parent, Fusion Merger Sub 1, LLC, a single member Delaware limited
liability company and a direct Wholly Owned Subsidiary of Parent (“Merger LLC”), Fusion Merger Sub 2, Inc.,
a Delaware corporation and a direct Wholly Owned Subsidiary of Merger LLC (“Merger Sub”), and the Company are
entering into the Agreement and Plan of Merger, dated as of November 12, 2024 (as the same may be amended from time to time, the
“Merger Agreement”), pursuant to which, upon the terms and subject to the conditions set forth therein,
(i) Merger Sub will merge (the “Merger”) with and into the Company, with the Company surviving the Merger
(the “Surviving Corporation”), and (ii) immediately following the Merger, the Company as the surviving
corporation in the Merger and a Wholly Owned Subsidiary of Merger LLC, will merge with and into Merger LLC (the “Upstream
Merger” and together with the Merger, the “Combination”), with Merger LLC surviving the Upstream Merger
(the “Surviving Company”); and
WHEREAS, in connection with
the execution of the Merger Agreement and the transactions contemplated thereby, Parent is entering into this Assumption and Joinder Agreement,
pursuant to which Parent agrees, effective only upon (and subject to the occurrence of) the closing of the Merger (the “Closing”),
to be bound by and perform all of the covenants and agreements made by Grizzly Merger Sub and the Company (and the Surviving Corporation
and the Surviving Company) under the Indemnification Agreement and the Company Joinder and to be jointly and severally liable with Grizzly
Merger Sub and the Company (and the Surviving Corporation and the Surviving Company) for all of the obligations and liabilities of Grizzly
Merger Sub and the Company (and the Surviving Corporation and the Surviving Company) under the Indemnification Agreement and the Company
Joinder (collectively, the “Joint Obligations”), and each of Qurate Retail, LI LLC, Grizzly Merger Sub and LV Bridge
agrees, effective only upon (and subject to the occurrence of) the Closing, that Parent shall be entitled to exercise and enforce all
of the rights of Grizzly Merger Sub and the Company (and the Surviving Corporation and the Surviving Company) under the Indemnification
Agreement and the Company Joinder (the “Joint Rights”).
NOW, THEREFORE, in consideration
of the foregoing and the mutual representations, warranties, covenants and agreements contained herein, the parties to this Assumption
and Joinder Agreement hereby agree as follows:
Section 1. Assumption
and Joinder.
(a) Parent
will be, effective only as of (and subject to the occurrence of) the Closing, (i) bound by, and will perform and observe, the Joint
Obligations and (ii) jointly and severally liable with Grizzly Merger Sub and the Company (and the Surviving Corporation and the
Surviving Company) for all of the Joint Obligations.
(b) Parent,
together with Grizzly Merger Sub and the Company (and the Surviving Corporation and the Surviving Company), will be, effective only as
of (and subject to the occurrence of) the Closing, entitled to exercise and enforce all of the Joint Rights.
(c) Following
the date hereof, in the event of (i) any sale, assignment, transfer or other disposition (whether or not for separate consideration)
of all or substantially all of the assets of Parent (on a consolidated basis) to any Person or group including, without limitation, by
means of a stock dividend, stock redemption, spinoff, split-off, cancellation or elimination of any securities (including, for the avoidance
of doubt, any equity) or debt issued by such Person or a member of such group, or similar transaction or event or otherwise (each Person
(1) whose securities are issued in payment or exchange therefor or (2) if no securities are so issued, who holds title to such
assets or whose debt or securities are so cancelled or eliminated, a “Parent Asset Successor”), in one or a series
of related transactions, or (ii) any merger, consolidation, statutory share exchange, conversion of Parent from a corporation to
a limited liability company or other legal entity or other business combination or similar transaction or series of related transactions
affecting Parent, that results in the exchange or conversion of equity securities of Parent for or into equity securities or other consideration
consisting, in whole or in part, of (x) securities issued by Parent’s successor or the surviving entity upon consummation of
such transaction(s) (the “Parent Successor Entity”) or, if the successor or surviving entity in such transaction(s) is
a Subsidiary of a publicly traded or privately held parent company (the “Successor Parent Company”), securities of
the Successor Parent Company delivered in such transaction(s), or (y) cash or other consideration paid or payable by any Parent Successor
Entity or Successor Parent Company (the applicable of the Parent Asset Successor, the Parent Successor Entity and the Successor Parent
Company, the “Parent Successor”), then prior to effecting any such transaction described in clause (i) or clause
(ii) (or in the case of a series of transactions, the first such transaction), Parent shall cause each Parent Successor to execute
and deliver to Qurate Retail an instrument, in form and substance consistent with this Assumption and Joinder Agreement, pursuant to which
such Parent Successor has agreed, effective upon the later of the Closing and the consummation of such transaction, to (i) be bound
by, and perform and observe, the Joint Obligations, (ii) be jointly and severally liable with Parent, Grizzly Merger Sub and the
Company (and the Surviving Company) for all of the Joint Obligations, and (iii) become a party to the Indemnification Agreement and
be treated as a successor of Parent within the meaning of Section 6.10(b) of the Indemnification Agreement.
(d) Following
the date hereof, in the event that Parent seeks or determines to sell, assign, transfer or otherwise dispose of (including, without limitation,
through a merger or other business combination involving Parent or any Parent Successor) a material portion of its assets (on a consolidated
basis), as determined by Parent in good faith, then prior to the consummation of such transaction (or the first transaction of any series
of related transactions), Parent shall provide Qurate Retail with information regarding the financial capacity, after giving effect to
such transaction(s), of Parent to satisfy the Joint Obligations under the Indemnification Agreement and, to the extent reasonably requested
by Qurate Retail, will provide written assumptions or other assurances reasonably necessary to evidence Parent’s ability and capacity
to fulfill the Joint Obligations, in each case, to the extent permitted by applicable confidentiality obligations and law.
Section 2. Party to
Indemnification Agreement. Effective only as of (and subject to the occurrence of) the Closing, pursuant to this Assumption and Joinder
Agreement, Parent shall be deemed a party to the Indemnification Agreement as though an original signatory thereto without any further
action by any Person and shall be bound by, and subject to all of the terms and conditions of, the Indemnification Agreement.
Section 3. Company Successors.
The parties acknowledge and agree that, effective only upon (and subject to the occurrence of) the Closing, Parent, the Surviving Corporation
and, following the Upstream Merger Effective Time, the Surviving Company will become successors to the Company within the meaning of Section 6.10(b) of
the Indemnification Agreement and any reference to the Company under the Indemnification Agreement will include following the Closing,
Parent, the Surviving Corporation, and, following the Upstream Merger Effective Time, the Surviving Company for all purposes of the Indemnification
Agreement.
Section 4. Notices.
All notices and other communications to Parent or, following the Closing, the Surviving Corporation and, following the Upstream Merger
Effective Time, the Surviving Company under the Indemnification Agreement shall be in writing and shall be delivered in person, by email,
by facsimile (with confirming copy sent by one of the other delivery methods specified herein), or by overnight courier or sent by certified,
registered or express air mail, postage prepaid, and shall be deemed given when so delivered in person or by email, or when so received
by facsimile or courier, or, if mailed, three (3) calendar days after the date of mailing, as follows:
| |
Charter Communications, Inc. |
| |
400 Washington Blvd. |
| |
Stamford, CT 06902 |
| |
Attention: |
Executive Vice President, General Counsel and Corporate Secretary |
| |
Email: |
[Separately
provided] |
| |
|
| |
with a copy to (which shall not constitute
notice): |
| |
|
| |
Wachtell, Lipton, Rosen &
Katz |
| |
51 W 52nd St. |
| |
New York, NY 10019 |
| |
Facsimile: (212) 403-1000 |
| |
Attention: |
Steven A. Cohen |
| |
|
Steven R. Green |
| |
Email: |
SACohen@wlrk.com |
| |
|
SRGreen@wlrk.com |
Section 5. Binding Effect;
Assignment. This Assumption and Joinder Agreement and all of the provisions hereof shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted assigns. Neither this Assumption and Joinder Agreement nor any of
the rights, interests or obligations hereunder shall be assigned by any party hereto without the prior written consent of the other parties;
except to the extent such assignment is required pursuant to Section 1(c) of this Assumption and Joinder Agreement. Any
assignment in violation of the preceding sentence shall be void and of no effect.
Section 6. Governing
Law; Jurisdiction. This Assumption and Joinder Agreement and the legal relations among the parties hereto will be governed in all
respects, including validity, interpretation and effect, by the laws of the State of Delaware applicable to contracts made and performed
wholly therein, without giving effect to any choice or conflict of laws provisions or rules that would cause the application of the
laws of any other jurisdiction. Each of the parties hereto irrevocably agrees that any legal action or proceeding with respect to this
Assumption and Joinder Agreement, and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment
in respect of this Assumption and Joinder Agreement, and the rights and obligations arising hereunder brought by the other party hereto
or its successors or assigns, shall be brought and determined exclusively in the Delaware Court of Chancery and any state appellate court
therefrom within the State of Delaware (or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter,
any state or federal court within the State of Delaware). Each of the parties hereto hereby irrevocably submits with regard to any such
action or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid
courts and agrees that it will not bring any action relating to this Assumption and Joinder Agreement or the matters contemplated hereby
in any court other than the aforesaid courts. Each of the parties hereto hereby irrevocably waives, and agrees not to assert as a defense,
counterclaim or otherwise, in any action or proceeding with respect to this Assumption and Joinder Agreement (a) any claim that it
is not personally subject to the jurisdiction of the above named courts for any reason other than the failure to serve in accordance with
Section 4 and this Section 6, (b) any claim that it or its property is exempt or immune from jurisdiction
of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) to the fullest extent permitted by applicable
law, any claim that (i) the suit, action or proceeding in such court is brought in an inconvenient forum, (ii) the venue of
such suit, action or proceeding is improper or (iii) this Assumption and Joinder Agreement or the subject matter hereof may not be
enforced in or by such courts. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether
within or without the jurisdiction of any such court. Without limiting the foregoing, each party agrees that service of process on such
party as provided in Section 4 of this Assumption and Joinder Agreement or Section 6.3 of the Indemnification Agreement
shall be deemed effective service of process on such party. EACH OF THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS TO TRIAL BY JURY IN CONNECTION WITH ANY PROCEEDING ARISING OUT OF OR RELATING TO
THIS ASSUMPTION AND JOINDER AGREEMENT OR THE MATTERS CONTEMPLATED HEREBY.
Section 7. Termination/Amendment.
If the Merger Agreement is terminated in accordance with its terms without the Closing having occurred, effective upon such termination,
this Assumption and Joinder Agreement shall automatically terminate and immediately cease to be of any further force and effect, and no
party hereto will thereafter have any rights or obligations hereunder. This Assumption and Joinder Agreement may also be amended, modified
or terminated by mutual consent of the parties hereto in a written instrument.
Section 8. Counterparts.
This Assumption and Joinder Agreement may be executed in two or more identical counterparts, each of which shall be deemed to be an original,
and all of which together shall constitute one and the same agreement. This Assumption and Joinder Agreement may be delivered by facsimile
transmission of a signed copy thereof.
Section 9. Severability.
Any provision of this Assumption and Joinder Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof. Any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Upon a
determination that any provision of this Assumption and Joinder Agreement is prohibited or unenforceable in any jurisdiction, the parties
shall negotiate in good faith to modify this Assumption and Joinder Agreement so as to effect the original intent of the parties as closely
as possible in an acceptable manner in order that the provisions contemplated hereby are consummated as originally contemplated to the
fullest extent possible.
Section 10. Amendments;
Waivers. Any provision of this Assumption and Joinder Agreement may be amended or waived if, but only if, such amendment or waiver
is in writing and is signed, in the case of an amendment, by each party hereto, or in the case of a waiver, by the party against whom
the waiver is to be effective. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as
a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. Except as otherwise provided herein, the rights and remedies herein provided shall be cumulative and
not exclusive of any rights or remedies provided by applicable Law. Any consent provided under this Assumption and Joinder Agreement must
be in writing, signed by the party against whom enforcement of such consent is sought.
Section 11. Headings.
The headings contained in this Assumption and Joinder Agreement are for reference purposes only and will not affect in any way the meaning
or interpretation of this Assumption and Joinder Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have executed
this Assumption and Joinder Agreement as of the day and year first above written.
| |
LIBERTY BROADBAND CORPORATION |
| |
|
|
| |
By: |
/s/ Renee L. Wilm |
| |
|
Name: |
Renee L. Wilm |
| |
|
Title: |
Chief Legal Officer and Chief Administrative Officer |
| |
|
|
| |
GRIZZLY MERGER SUB 1, LLC |
| |
|
|
| |
By: |
/s/ Renee L. Wilm |
| |
|
Name: |
Renee L. Wilm |
| |
|
Title: |
Chief Legal Officer and Chief Administrative Officer |
| |
|
|
| |
QURATE RETAIL, INC. |
| |
|
|
| |
By: |
/s/ Craig Troyer |
| |
|
Name: |
Craig Troyer |
| |
|
Title: |
Senior Vice President and Assistant Secretary |
| |
|
|
| |
LIBERTY INTERACTIVE LLC |
| |
|
|
| |
By: |
/s/ Craig Troyer |
| |
|
Name: |
Craig Troyer |
| |
|
Title: |
Senior Vice President and Assistant Secretary |
| |
|
|
| |
LV BRIDGE, LLC |
| |
|
|
| |
By: |
/s/ Craig Troyer |
| |
|
Name: |
Craig Troyer |
| |
|
Title: |
Senior Vice President and Assistant Secretary |
| |
|
|
| |
CHARTER COMMUNICATIONS, INC. |
| |
|
|
| |
By: |
/s/ Jessica M. Fischer |
| |
|
Name: |
Jessica M. Fischer |
| |
|
Title: |
Chief Financial Officer |
[Signature Page to Indemnification
Agreement Assumption and Joinder Agreement]
Exhibit 99.1
Charter to Acquire Liberty Broadband Corporation
STAMFORD, Connecticut and ENGLEWOOD, Colorado –
November 13, 2024 – Charter Communications, Inc. (NASDAQ: CHTR) (along with its subsidiaries, “Charter”) and Liberty
Broadband Corporation (NASDAQ: LBRDA, LBRDK, LBRDP) announced today that they have entered into a definitive agreement under which Charter
has agreed to acquire Liberty Broadband in an all-stock transaction.
Under the terms of the agreement, each holder of
Liberty Broadband Series A common stock, Series B common stock, and Series C common stock (collectively, “Liberty Broadband common
stock”) will receive 0.236 of a share of Charter common stock per share of Liberty Broadband common stock held, with cash to be
issued in lieu of fractional shares. Each holder of Liberty Broadband Series A cumulative redeemable preferred stock (“Liberty Broadband
preferred stock”) will receive one share of newly issued Charter cumulative redeemable preferred stock (“Charter preferred
stock”) per share of Liberty Broadband preferred stock held, which Charter preferred stock will substantially mirror the current
terms of the Liberty Broadband preferred stock.
Liberty Broadband’s principal assets currently
consist of approximately 45.6 million common shares of Charter and its subsidiary GCI, LLC (“GCI”), Alaska’s largest
communications provider. Liberty Broadband has agreed to spin off its GCI business by way of a distribution to the stockholders of Liberty
Broadband prior to the closing of the acquisition of Liberty Broadband by Charter. The GCI distribution is expected to be taxable to Liberty
Broadband and its stockholders, with Charter bearing the corporate level tax liability upon completion of the combination. However, to
the extent such corporate level tax liability exceeds $420 million, Charter will be entitled under a tax receivables agreement to the
portion of the tax benefits realized by GCI corresponding to such excess. The companies currently expect the transaction to close on June
30, 2027 unless otherwise agreed, subject to the completion of the GCI spin-off and other customary closing conditions.
As a result of the transaction, Charter expects
to retire the approximately 45.6 million Charter shares currently owned by Liberty Broadband and to issue approximately 34.0 million shares
to holders of Liberty Broadband common stock at the closing, resulting in a net decrease of approximately 11.5 million Charter shares
outstanding. Liberty Broadband has existing debt of $2.6 billion (excluding debt at GCI) that will be repaid prior to closing or assumed
by Charter, and $180 million of preferred equity that will become Charter preferred equity following the close of the transaction.
The transaction was unanimously recommended to
the Charter Board of Directors for approval by a special committee composed of independent, disinterested directors and advised by independent
financial and legal advisors. The Boards of Directors of both Charter and Liberty Broadband have approved the transaction, which is subject
to customary closing conditions, including (among others):
| · | Approval of the merger agreement and related transactions by holders of: |
| o | A majority of the aggregate voting power of Charter’s
outstanding stock eligible to vote, excluding shares owned by Liberty Broadband and certain other persons |
| o | A majority of the aggregate voting power of Liberty Broadband’s
outstanding stock eligible to vote |
| o | A majority of the aggregate voting power of Liberty Broadband’s
outstanding stock eligible to vote, excluding shares owned by John C. Malone and certain other persons and entities |
| · | Approval of the stock issuance by holders of a majority of the votes cast
by holders of Charter’s outstanding stock |
| | | |
| · | The receipt of any applicable regulatory approvals |
John Malone and certain related holders have agreed
to vote, subject to certain exceptions, shares beneficially owned by them, representing approximately 48% of the aggregate voting power
of Liberty Broadband, in favor of the transaction. Greg Maffei, President and Chief Executive Officer of Liberty Broadband, and certain
related holders have also agreed to vote, subject to certain exceptions, shares beneficially owned by them, representing approximately
4% of the aggregate voting power of Liberty Broadband, in favor of the transaction.
In addition, in connection with the entry into
the transaction, Charter, Liberty Broadband and Advance/Newhouse Partnership have agreed to amend certain existing governance arrangements
of Charter to, among other things, modify the way in which Charter repurchases its shares of common stock from Liberty Broadband during
the pendency of the transaction. Charter intends to make repurchases of Charter shares from Liberty Broadband in amounts of approximately
$100 million per month, subject to certain adjustments, and as needed incremental repurchases or loans to Liberty Broadband, to allow
for the timely repayment of Liberty Broadband debt in anticipation of the combination of the companies at closing. Liberty Broadband will
remain subject to the existing voting cap of 25.01%. Proceeds from share repurchases applied to debt service are expected to be tax free.
“We are pleased to announce this agreement
today with Liberty Broadband. I am grateful for Liberty Broadband’s strategic partnership since 2013, and particularly for the support
of John Malone, Greg Maffei and our Liberty Broadband nominated board members,” said Chris Winfrey, President and CEO of Charter.
“We look forward to their continued partnership and support in the coming years in driving value for our shareholders.”
“Today’s announced transaction will
rationalize Liberty Broadband’s trading discount and ultimately provide our shareholders with enhanced liquidity,”
said John Malone, Chairman of Liberty Broadband. “The transaction closing timeline reflects my belief in Charter’s operating
strategy under the excellent leadership of Chris Winfrey and team and the value creation opportunity for both Charter and Liberty shareholders.
I look forward to that continued upside, and to holding Charter shares after the merger closing.”
“We are pleased to have reached definitive terms with Charter
and provide Liberty shareholders with certainty of a future transaction at an attractive exchange ratio. This transaction simplifies our
corporate structure and allows our shareholders to participate in Charter’s upside through direct ownership of the equity. In connection
with the transaction, we expect GCI will become an independent public company prior to close. Liberty has had a great partnership with
Ron Duncan and GCI management since 2018 and will continue to participate in value creation opportunities for the business,” said
Greg Maffei, President & CEO of Liberty Broadband. “Reaching this agreement was an important milestone in my leadership of the
company, and I will be stepping down from my role as Liberty Broadband CEO at the end of this year. I look forward to continuing as a
director of Charter and a meaningful shareholder.”
Centerview Partners LLC is serving as exclusive
financial advisor to the special committee of Charter. Citi is serving as exclusive financial advisor to Charter. Wachtell, Lipton, Rosen
& Katz is serving as legal counsel to the special committee of Charter. J.P. Morgan is serving as exclusive financial advisor to Liberty
Broadband, and O’Melveny & Myers LLP is serving as legal counsel to Liberty Broadband.
About Charter
Charter Communications, Inc. (NASDAQ:CHTR) is
a leading broadband connectivity company and cable operator with services available to more than 58 million homes and businesses in 41
states through its Spectrum brand. Over an advanced communications network, the Company offers a full range of state-of-the-art residential
and business services including Spectrum Internet®, TV, Mobile and Voice.
For small and medium-sized companies, Spectrum
Business® delivers the same suite of broadband products and services coupled with special features and applications to
enhance productivity, while for larger businesses and government entities, Spectrum Enterprise® provides highly customized,
fiber-based solutions. Spectrum Reach® delivers tailored advertising and production for the modern media landscape. The
Company also distributes award-winning news coverage and sports programming to its customers through Spectrum Networks. More information
about Charter can be found at corporate.charter.com.
About Liberty Broadband
Liberty Broadband Corporation (Nasdaq: LBRDA,
LBRDK, LBRDP) operates and owns interests in a broad range of communications businesses. Liberty Broadband’s principal assets consist
of its interest in Charter Communications and its subsidiary GCI. GCI is Alaska’s largest communications provider, providing data,
wireless, video, voice and managed services to consumer and business customers throughout Alaska and nationwide. GCI has delivered services
over the past 40 years to some of the most remote communities and in some of the most challenging conditions in North America.
Cautionary Note Regarding Forward Looking
Statements
This
communication includes forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities
Act”), and Section 21E of the Securities Exchange Act of 1934, as amended, regarding, among other things, the proposed transaction
between Charter and Liberty Broadband. Although we believe that our plans, intentions and expectations as reflected in or suggested by
these forward-looking statements are reasonable, we cannot assure you that we will achieve
or realize these plans, intentions or expectations. Forward-looking statements are inherently subject to risks, uncertainties and assumptions
including, without limitation: (i) the effect of the announcement of the proposed transaction on the ability of Charter and Liberty Broadband
to operate their respective businesses and retain and hire key personnel and to maintain favorable business relationships; (ii) the timing
of the proposed transaction; (iii) the ability to satisfy closing conditions to the completion of the proposed transaction (including
stockholder and regulatory approvals); (iv) the possibility that the transactions may be more expensive to complete than anticipated,
including as a result of unexpected factors or events; (v) the ability of Liberty Broadband to consummate the spin-off of its GCI business;
(vi) litigation relating to the proposed transaction; (vii) other risks related to the completion of the proposed transaction and actions
related thereto; and (viii) the factors described under “Risk Factors” from time to time in Charter’s and Liberty Broadband’s
filings with the Securities and Exchange Commission (the “SEC”). Many of the forward-looking statements contained in this
communication may be identified by the use of forward-looking words such as “believe,” “expect,” “anticipate,”
“should,” “planned,” “will,” “may,” “intend,” “estimated,” “aim,”
“on track,” “target,” “opportunity,” “tentative,” “positioning,” “designed,”
“create,” “predict,” “project,” “initiatives,” “seek,” “would,”
“could,” “continue,” “ongoing,” “upside,” “increases,” “grow,”
“focused on” and “potential,” among others.
All forward-looking statements speak only as of the date they
are made and are based on information available at that time. Neither Charter nor Liberty Broadband assumes any obligation to update
forward-looking statements to reflect circumstances or events that occur after the date the forward-looking statements were made or to
reflect the occurrence of unanticipated events except as required by federal securities laws. As forward-looking statements involve significant
risks and uncertainties, caution should be exercised against placing undue reliance on such statements.
Additional Information
Charter intends to file a registration statement on Form S-4 with the SEC to register the shares of Charter common stock and Charter
preferred stock that will be issued to Liberty Broadband stockholders in connection with the proposed transaction. The registration statement
will include a joint proxy statement of Charter and Liberty Broadband that will also constitute a prospectus of Charter. Investors and
security holders of Charter and Liberty Broadband are urged to read the registration statement, joint proxy statement, prospectus and/or
other documents filed with the SEC carefully in their entirety if and when they become available as they will contain important information
about the proposed transaction. The definitive joint proxy statement/prospectus (if and when available) will be mailed to stockholders
of Charter and Liberty Broadband, as applicable. Investors and security holders will be able to obtain free copies of these documents
(if and when available) and other documents filed with the SEC by Charter or Liberty Broadband through the website maintained by the SEC
at http://www.sec.gov or by contacting the investor relations department of Charter or Liberty Broadband at:
|
Charter Communications,
Inc. |
|
Liberty Broadband
Corporation |
|
400 Washington Blvd.
Stamford, CT 06902
Attention: Investor Relations
Telephone: (203) 905-7801 |
|
12300 Liberty Boulevard,
Englewood, Colorado 80112
Attention: Investor Relations
Telephone: (720) 875-5700 |
Participants in Solicitation
This communication is neither a solicitation
of a proxy nor a substitute for any proxy statement or other filings that may be made with the SEC. Nonetheless, Charter, Liberty Broadband
and their respective directors and executive officers and other persons may be deemed to be participants in the solicitation of proxies
in respect of the proposed transaction. Information regarding the interests of such potential participants will be included in one or
more registration statements, proxy statements or other documents filed with the SEC if and when they become available. These documents
(if and when available) may be obtained free of charge from the SEC’s website http://www.sec.gov.
Charter anticipates that the
following individuals will be participants (the “Charter Participants”) in the solicitation of proxies from holders of Charter
common stock in connection with the proposed transaction: Eric L. Zinterhofer, Non-Executive Chairman of the Charter board of directors,
W. Lance Conn, Kim C. Goodman, Gregory B. Maffei, John D. Markley, Jr., David C. Merritt, James E. Meyer, Steven A. Miron, Balan Nair,
Michael A. Newhouse, Mauricio Ramos and Carolyn J. Slaski, all of whom are members of the Charter board of directors, Christopher L.
Winfrey, President, Chief Executive Officer and Director, Jessica M. Fischer, Chief Financial Officer, and Kevin D. Howard, Executive
Vice President, Chief Accounting Officer and Controller. Information about the Charter Participants, including a description of their
direct or indirect interests, by security holdings or otherwise, and Charter’s transactions with related persons is set forth in
the sections entitled “Proposal No. 1: Election of Directors”, “Compensation Committee Interlocks and Insider Participation”,
“Compensation Discussion and Analysis”, “Certain Beneficial Owners of Charter Class A Common Stock”, “Certain
Relationships and Related Transactions”, “Proposal No. 2: Increase the Number of Shares in 2019 Stock Incentive Plan”,
“Pay Versus Performance” and “CEO Pay Ratio” contained in Charter’s definitive proxy statement for its
2024 annual meeting of shareholders, which was filed with the SEC on March 14, 2024 (which is available at https://www.sec.gov/ix?doc=/Archives/edgar/data/1091667/000119312524067965/d534477ddef14a.htm)
and other documents subsequently filed by Charter with the SEC. To the extent holdings of Charter stock by the directors and executive
officers of Charter have changed from the amounts of Charter stock held by such persons as reflected therein, such changes have been
or will be reflected on Statements of Change in Ownership on Form 4 filed with the SEC.
Liberty Broadband anticipates that the following
individuals will be participants (the “Liberty Broadband Participants”) in the solicitation of proxies from holders of Liberty
Broadband Series A common stock, Series C common stock and Series A cumulative redeemable preferred stock in connection with the proposed
transaction: John C. Malone, Chairman of the Liberty Broadband board of directors, Gregg L. Engles, Julie D. Frist, Richard R. Green,
Sue Ann R. Hamilton, J. David Wargo and John E. Welsh III, all of whom are members of the Liberty Broadband board of directors, Gregory
B. Maffei, Liberty Broadband’s President, Chief Executive Officer and Director, and Brian J. Wendling, Liberty Broadband’s
Chief Accounting Officer and Principal Financial Officer. Information regarding the Liberty Broadband Participants, including a description
of their direct or indirect interests, by security holdings or otherwise, and Liberty Broadband’s transactions with related persons
can be found under the captions “Proposal 1 – The Election of Directors Proposal”, “Director Compensation”,
“Proposal 3 – The Incentive Plan Proposal”, “Proposal 4 – The Say-On-Pay Proposal”,
“Executive Officers”, “Executive Compensation”, “Security Ownership of Certain Beneficial Owners and Management—Security
Ownership of Management” and “Certain Relationships and Related Party Transactions” contained in Liberty Broadband’s
definitive proxy statement for its 2024 annual meeting of stockholders, which was filed with the SEC on April 25, 2024 (which is available
at: https://www.sec.gov/ix?doc=/Archives/edgar/data/1611983/000110465924051479/tm242809d6_def14a.htm) and other documents subsequently
filed by Liberty Broadband with the SEC. To the extent holdings of Liberty Broadband stock by the directors and executive officers of
Liberty Broadband have changed from the amounts of Liberty Broadband stock held by such persons as reflected therein, such changes have
been or will be reflected on Statements of Change in Ownership on Form 4 or amendments to beneficial ownership reports on Schedules 13D
filed with the SEC. Free copies of these documents may be obtained as described above.
No Offer or Solicitation
This communication does not constitute an
offer to sell or the solicitation of an offer to buy any securities or a solicitation of any vote or approval, nor shall there be any
sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such jurisdiction. No offer of securities shall be made except
by means of a prospectus meeting the requirements of Section 10 of the Securities Act.
# # #
Charter Contacts:
| Media: |
Analysts: |
| Justin Venech |
Stefan Anninger |
| 203-905-7818 |
203-905-7955 |
Liberty Contacts:
Shane Kleinstein
720-875-5432
SOURCE: Charter Communications, Inc.; Liberty Broadband Corporation
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