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Exhibit 2.7(i)
FIRST AMENDMENT TO
CONTRIBUTION AGREEMENT
This FIRST AMENDMENT (the "AMENDMENT") to the CONTRIBUTION AGREEMENT dated
as of September 14, 1999, by and among Charter Communications Operating, LLC, a
Delaware limited liability company ("CCO"); Charter Communications Holding
Company, LLC, a Delaware limited liability company ("CHARTER HOLDCO"); the other
Persons listed on the signature pages thereto (the "INVESTORS"); with respect to
certain provision thereof, Charter Communications, Inc. ("CCI"); and with
respect to certain provisions thereof, Xxxx X. Xxxxx ("XXXXX"), is entered into
as of November ___, 1999.
RECITALS
A. In connection with the transactions contemplated by the Purchase
Agreements, CCO, Charter Holdco, the Investors, CCI and Xxxxx entered into that
certain Contribution Agreement dated as of September 14, 1999 (the "CONTRIBUTION
AGREEMENT").
B. Section 6.6 of the Contribution Agreement provides that the
Contribution Agreement may be amended by an instrument in writing executed by a
majority-in-interest (measured by Issued Units) of the Investors, so long as
such amendment does not have an adverse and discriminatory impact on any
Investor.
C. The parties executing this Amendment, representing a
majority-in-interest (measured by Issued Units) of the Investors, wish to amend
the Contribution Agreement in the manner set forth in this Amendment, all
effective as of September 14, 1999.
D. Capitalized terms used in this Amendment but not otherwise defined have
the meaning ascribed to them in the Contribution Agreement.
AGREEMENT
In consideration of the premises contained herein and the agreements set
forth below, and intending to be legally bound, the parties agree that the
Contribution Agreement is hereby amended as follows:
1. Sections 3 of the Contribution Agreement is hereby amended and restated in
its entirety as follows:
"3. Right to Exchange Class A Preferred Units; Put Rights.
3.1. Right to Exchange. Each Investor will have the right to
contribute all or any portion of its Issued Units to CCI in exchange for
Common Stock immediately prior to or concurrently with the IPO, in the
following manner:
3.1.1. Prior hereto, CCI has delivered to R&A Management LLC
copies of the preliminary prospectus dated October 18, 1999,
relating to the IPO, and the Disbursement Agent has delivered a copy
of the preliminary prospectus to each Investor.
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3.1.2. On or before November 5, 1999, the Disbursement Agent
shall deliver a notice to CCI stating the number of Issued Units, if
any, that each Investor will commit to exchange into shares of
Common Stock concurrently with the closing of the IPO (the
"EXCHANGED UNITS"). If no such notice is delivered with respect to
one or more Investors, then each such Investor will no longer have
the right to exchange Issued Units into shares of Common Stock. Each
Investor electing to exchange Issued Units for Common Stock will,
upon delivery of the confirmation notice, execute and deliver a
Contribution Agreement in the form attached hereto as EXHIBIT C (the
"SECOND CONTRIBUTION AGREEMENT"). Such election and such deliveries
shall be contingent upon closing of the IPO and the fulfillment of
all of the obligations of Charter Holdco, CCI and their affiliates
hereunder, including without limitation the delivery of the
Accretion Put and Registration Support Put as provided herein.
3.2. Valuation of Exchanged Units and CCI Common Stock. As more
fully set forth in the Second Contribution Agreement, for purposes of the
exchange under Section 3.1:
3.2.1 shares of Common Stock shall be valued at the gross
price to the public in the IPO; and
3.2.2 Exchanged Units shall be valued at the sum of (i) the
Class A Preferred Contributed Amount in respect of the Exchanged Units,
and (ii) the Class A Preferred Return Amount in respect of such Exchanged
Units (the aggregate value of all such Exchanged Units being referred to
as the "ROLLOVER AMOUNT").
3.3. Lockup Agreement. Investors receiving shares of Common Stock in
exchange for Exchanged Units (the "ROLLOVER INVESTORS") will enter into a
lockup agreement with the underwriters of the IPO, in the form attached
hereto as EXHIBIT G.
3.4. Loss of Exchange Rights. Issued Units that are not exchanged
for shares of Common Stock concurrently with the IPO will remain as Class
A Preferred Units and will no longer be exchangeable into shares of Common
Stock.
3.5. Registration Rights Agreement. Each Rollover Investor and CCI
shall enter into a Registration Rights Agreement in the form attached
hereto as EXHIBIT H.
3.6. Put Rights. The Charter Put (as defined in Section 5) entered
into at the Closing will not apply as to any shares of Common Stock
received in exchange for Issued Units ("ROLLOVER SHARES"). Xxxxx will
deliver two put agreements in the forms attached hereto as EXHIBIT E (the
"ACCRETION PUT") and EXHIBIT F (the "REGISTRATION SUPPORT PUT") to each
Investor that elects to exchange Issued Units into Common Stock.
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3.7. Credit Support.
3.7.1 Delivery of LC or Collateral. At the closing under the
Second Contribution Agreement, Xxxxx shall either:
(i) deliver to the Disbursement Agent a letter of credit from
a bank, investment bank or other financial institution reasonably
acceptable to the Disbursement Agent in form and substance
reasonably acceptable to the Disbursement Agent, in an amount at
least equal to the Rollover Amount (the "LETTER OF CREDIT"); or
(ii) deliver into escrow, as collateral securing Xxxxx'x
obligations under the Registration Support Put, marketable
securities (which shall include, for this purpose, shares of
Microsoft Corp. common stock which Xxxxx has held for at least two
years) having a then market value at least equal to the Rollover
Amount (the "COLLATERAL") together with a pledge agreement in form
and substance reasonably acceptable to the Disbursement Agent
securing Xxxxx'x obligations under the Registration Support Put (the
"PLEDGE AGREEMENT"); provided, however, that, except to the extent
action is properly taken against the Collateral as a result of
Xxxxx'x failure to perform his obligations under the Registration
Support Put, Xxxxx shall at all times retain all rights incident to
the ownership of such securities including without limitation voting
rights and rights to receive dividends; or
(iii) deliver any combination of a Letter of Credit and
Collateral under clause (i) or (ii) of this Sections 3.7.1 which in
the aggregate are valued at the Rollover Amount.
3.7.2 Conditions for Use. The Letter of Credit shall provide
that the Letter of Credit may be drawn upon (or, if applicable, the Pledge
Agreement shall provide that action may taken against the Collateral) by
the Disbursement Agent (on behalf of any Rollover Investor) only in the
event, and only to the extent, that Xxxxx breaches his obligation to
purchase Rollover Shares from such Rollover Investor pursuant to Section 2
of the Registration Support Put. In such case, the Letter of Credit or
Collateral may be utilized either (i) to pay the full Purchase Price due
under the Registration Support Put, provided that concurrently therewith
title to the Rollover Shares is transferred to Xxxxx or his designee in
accordance with the terms of the Registration Support Put or (ii) to
compensate such Rollover Holder for damages suffered as a result of such
breach, if, following such breach by Xxxxx, the Rollover Holder sells the
Rollover Shares tendered to Xxxxx to an unaffiliated third party under
arms length commercially reasonable terms, with a reasonable and customary
discount to reflect the fact that the Rollover Shares are "restricted
shares" under rules and regulations of the SEC (an "ALTERNATE PRIVATE
SALE"), which damages shall be deemed to be the difference between the
aggregate amount which was payable by Xxxxx under Section 2 of the
Registration Support Put and the aggregate sale price received pursuant to
such Alternate Private Sale. All draws upon the Letter of Credit, and all
actions with respect to the Collateral, shall be made by the Disbursement
on behalf of the claiming Rollover Holder. Each Investor hereby
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irrevocably appoints the Disbursement as its representative for such
purpose (and the Disbursement Agent hereby accepts such appointment) and
agrees that any action taken by the Disbursement Agent with respect to the
Letter of Credit or the Collateral which purports to be on behalf of such
Investor shall be binding on such Investor. Any payments received by the
Disbursement Agent on behalf of any Investor shall discharge Xx. Xxxxx'x
obligations to such Investor to the extent of such payments.
3.7.3 Duration. Such Letter of Credit or Pledge Agreement
shall be maintained by Xxxxx through the date which is 2 years following
the closing date of the IPO. In the case of a Letter of Credit, the
initial term shall be for one year; provided, however, that the
Disbursement Agent shall be entitled to draw upon the Letter of Credit at
the end of such one year period unless, at least 15 days prior thereto,
either (i) the Letter of Credit is either affirmatively renewed or renewed
under its terms by inaction of the bank or (ii) Xxxxx provides a
replacement Letter of Credit and/or replacement Collateral under a Pledge
Agreement (provided such new Letter of Credit and Collateral have an
aggregate value equal to or exceeding the then remaining face amount of
the existing Letter of Credit). If the Disbursement Agent draws upon the
Letter of Credit due to its expiration as set forth above, the
Disbursement Agent shall deposit such funds in an appropriate escrow
account, pursuant to agreements in form and substance reasonably
acceptable to the parties, from which payments will be made to Investors
in the event of a breach of the Registration Support Put as contemplated
by Section 3.7.2 and the Letter of Credit. Any remaining funds in such
escrow account will be returned to Xx. Xxxxx two years following the date
of the IPO.
3.7.4 Substitution; Reduction.
(a) Xxxxx shall have the ability at any time from time to time
to substitute a Letter of Credit for some or all of the Collateral, or
Collateral for any portion of a Letter of Credit, on a dollar for dollar
basis, and the Disbursement Agent shall cooperate with Xxxxx in effecting
the release of Collateral or a reduction of the amount of the Letter of
Credit concurrently with delivery of such substitute Letter of Credit or
Collateral (as the case may be).
(b) From time to time at Xxxxx'x request (but not more than
once every three months), the Disbursement Agent shall cooperate with
Xxxxx to reduce the Letter of Credit or the amount of Collateral to an
aggregate value not less than the greater of (i) the Rollover Amount
multiplied by a fraction the numerator of which is the number of any
remaining Rollover Shares which have neither been transferred to Xxxxx nor
sold to a third party that is not a Permitted Transferee (whether pursuant
to the Shelf Registration or otherwise) and the denominator of which is
the initial number of Rollover Shares; and (ii) the fair market value of
such remaining Rollover Shares on the date of such request (as determined
by reference to the Closing Price under the Registration Support Put).
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3.8. Earlier Offering by Entity other than CCI. In the event that an
affiliate of Charter Holdco and CII other than CCI conducts an initial
public offering of common stock prior to the IPO, then:
3.8.1. CII and Charter Holdco shall cause such affiliate to
enter into an agreement with the Investors giving them substantially
the same rights set forth in Sections 3.1, 3.2, 3.3 and 3.4; and
3.8.2. Xxxxx shall enter into an agreement with the Investors
giving them substantially the same rights set forth in Sections 3.5,
3.6 and 3.7 (with the Accretion Put and Registration Support Put
being applicable to common stock of such affiliate received by
Investors in the initial public offering of such affiliate).
2. Exhibit C (Form of Second Contribution Agreement) to the Contribution
Agreement is replaced in its entirety by Exhibit C to this Amendment.
3. Exhibit E (Form of Xxxxx Put) to the Contribution Agreement is replaced in
its entirety by Exhibit E (Form of Accretion Put) to this Amendment.
4. Exhibit F (Lockup Put) to the Contribution Agreement is deleted in its
entirety, and a new Exhibit F (Registration Support Put) is hereby added in
the form of Exhibit F hereto.
5. Exhibit H (Registration Rights Agreement) to the Contribution Agreement is
attached hereto as Exhibit H hereto.
6. On or prior to the closing under the Second Contribution Agreement, Section
3.5.3 of the LLC Agreement shall be amended in its entirety to read as
follows:
"3.5.3 Right to Redeem Class A Preferred Units. At any time after
the third anniversary of the Class A Preferred Measuring Date, the Company
shall have the right to redeem the Class A Preferred Units at a redemption
price equal to the sum of (i) the Class A Preferred Contributed Amount in
respect of such redeemed Class A Preferred Units and (ii) the Class A
Preferred Return Amount in respect of such redeemed Class A Preferred
Units. The Class A Preferred Units redeemed pursuant to this Section 3.5.3
shall be deemed cancelled."
7. Except as otherwise set forth in this Amendment, the Contribution Agreement
remains unchanged and in full force and effect and the terms of Section 6 of
the Contribution Agreement are incorporated herein and shall be applicable to
this Amendment. Without limiting any of the foregoing, each Investor
acknowledges that former Section 3 of the Contribution Agreement (and any
similar provision of any letter agreement referenced in the Contribution
Agreement) is of no further force and effect and that the execution and
delivery of this agreement constitutes settlement in full of all claims or
rights arising out of any failure by any party to comply with former Section
3 and any such similar provision of any letter agreement.
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8. This Amendment may be executed in any number of counterparts, each of which
will be deemed an original, but all of which together will constitute one and
the same instrument.
[SIGNATURE PAGE FOLLOWS]
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Signature Page to First Amendment to Contribution Agreement
IN WITNESS WHEREOF, parties hereto have caused this Amendment to be signed
by their duly authorized representatives, all as of the date first written
above.
AS REQUIRED TO APPROVE AMENDMENT:
CHARTER INVESTMENT, INC
By: _______________________________________
Name:
Title:
WITH RESPECT TO SECTION 1 OF THIS
AMENDMENT ONLY:
____________________________________________
Xxxx X. Xxxxx, by Xxxxxxx X. Xxxxx,
his attorney-in-fact
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Signature Page to First Amendment to Contribution Agreement
INTERLINK INVESTMENT CORP.
By: __________________________________________
Xxxxx X. Xxxxx, Vice President
XXXXXX & ASSOCIATES, INC.
By: __________________________________________
Xxxxxx X. Xxxxxx, Chairman of the Board
XXXXXX FAMILY INVESTMENT COMPANY,
L.L.L.P.
By: Its General Partners
_______________________________________________
Xxxxxx X. Xxxxxx, General Partner
_______________________________________________
Xxxxxx X. Xxxxxx, General Partner
_______________________________________________
Xxxxx X. Xxxxxx, General Partner
_______________________________________________
Xxxx X. Xxxxxx, General Partner
XXXXXX CHILDREN'S TRUST
By: __________________________________________
Xxxxxx X. Xxxxxx, Co-Trustee
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Signature Page to First Amendment to Contribution Agreement
XXXXXX CHILDREN TRUST-II
By: __________________________________________
Xxxxxx X. Xxxxxx, Co-Trustee
XXXXXX CHILDREN'S TRUST III
By: __________________________________________
Xxxxxx X. Xxxxxx, Co-Trustee
360 GROUP, INC.
By: __________________________________________
Xxxx X. Xxxxxx, Treasurer
XXXXXX CHILDREN TRUST
By: __________________________________________
Xxxxxxx X. Xxxxxx, III, Trustee
CRM II LIMITED PARTNERSHIP, LLLP
By: __________________________________________
Xxxxxxx X. Xxxxxx, General Partner
INDIANA CABLEVISION MANAGEMENT CORP.
By: __________________________________________
Xxxxxx X. Xxxxxx, President
_______________________________________________
XXXXXX X. XXXXXX
_______________________________________________
XXXXX X. XXXXX
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Signature Page to First Amendment to Contribution Agreement
_______________________________________________
XXXXXXX X. XXXXXX
_______________________________________________
XXXXXXX X. XXXXXXX
_______________________________________________
XXXXX X. XXXXXX
_______________________________________________
XXXXX X. XXXXX
_______________________________________________
XXXX X. XXXXXX
_______________________________________________
XXXXXX X. XXXXXX
_______________________________________________
XXXX X. XXXXXX
_______________________________________________
XXXXXXX X. XXXX
_______________________________________________
XXXX X. XXXXXX
_______________________________________________
XXXXXXX X. XXXXXX, III
"Disbursement Agent"
R&A MANAGEMENT LLC
By: __________________________________________
Its: __________________________________________
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EXHIBIT C
(AND EXHIBIT C TO CONTRIBUTION AGREEMENT)
FORM OF CONTRIBUTION AGREEMENT
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SECOND CONTRIBUTION AGREEMENT
THIS SECOND CONTRIBUTION AGREEMENT is made as of ________ __, 1999, by and
between __________ (the "HOLDER"), Charter Communications Holding Company, LLC,
a Delaware limited liability company ("CHARTER HOLDCO") and Charter
Communications, Inc., a Delaware corporation ("CCI").
RECITALS
WHEREAS, Holder owns Class A Preferred Units of Charter Holdco that were
issued in connection with (a) that certain Purchase and Sale Agreement by and
among Charter Investment, Inc. (formerly Charter Communications, Inc.) ("CII"),
Charter Communications Operating, LLC (by assignment) ("CCO"), the Persons
listed on the signature pages thereto as "Sellers" and Xxxxxx Acquisition
Partners, L.L.L.P., dated April 26, 1999, as amended (the "RAP AGREEMENT"), and
(b) that certain Purchase and Sale Agreement by and among CII, CCO, the Persons
listed on the signature pages thereto as "Sellers" and InterLink Communications
Partners, LLLP, dated April 26, 1999, as amended (the "INTERLINK AGREEMENT" and,
together with the RAP Agreement, the "PURCHASE AGREEMENTS");
WHEREAS, pursuant to the Contribution Agreement by and among Holder and
Charter Holdco, among others, dated as of September 14, 1999, as amended, and
entered into in connection with the transactions contemplated by the Purchase
Agreements (the "FIRST CONTRIBUTION Agreement"), Holder has the right to
exchange the Class A Preferred Units that were subject to the First Contribution
Agreement for shares of Class A Common Stock of CCI ("COMMON STOCK")
simultaneously with the closing of the initial public offering of CCI (the
"IPO"), all subject to the terms of the First Contribution Agreement;
WHEREAS, Holder has agreed to contribute the number of such Class A
Preferred Units set forth on EXHIBIT A hereto (the "CONTRIBUTED UNITS") to CCI
simultaneously with, and contingent upon the occurrence of the IPO, in exchange
for Common Stock;
NOW, THEREFORE, in light of the above recitals and in consideration of the
mutual agreements contained herein and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. DEFINITIONS.
1.1. "AGREEMENT" means this Contribution Agreement.
1.2. "CLASS A PREFERRED CONTRIBUTED AMOUNT" has the meaning given that
term in the Operating Agreement.
1.3. "CLASS A PREFERRED RETURN AMOUNT" has the meaning given that term in
the Operating Agreement.
1.4. "CLASS A PREFERRED UNITS" has the meaning given that term in the
Operating Agreement.
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1.5. "EXCHANGING GROUP" means Holder and all other holders of Class A
Preferred Units that have agreed to exchange such units for shares of Common
Stock simultaneously with the IPO pursuant to an agreement substantially similar
to this Agreement.
1.6. "OPERATING AGREEMENT" means that certain Amended and Restated Limited
Liability Company Agreement of Charter Holdco effective as of _________, 1999 as
amended from time to time.
1.7. "PERSON" means an individual, corporation, limited liability company,
partnership, sole proprietorship, association, joint venture, joint stock
company, trust, incorporated organization, or governmental agency or other
entity.
2. CONTRIBUTION AND ISSUANCE OF COMMON STOCK.
2.1. Contribution of Contributed Units. Holder hereby agrees to contribute
to CCI the Contributed Units simultaneously with, and contingent upon, the
occurrence of the IPO, in a transaction intended to qualify under Section 351 of
the Internal Revenue Code of 1986, as amended.
2.2. Issuance of Common Stock. As consideration for the contribution of
the Contributed Units, CCI agrees to issue a number of shares of Common Stock to
Holder equal to a fraction, the numerator of which is the sum of (i) the Class A
Preferred Contributed Amount in respect of the Contributed Units, and (ii) the
Class A Preferred Return Amount in respect of such Contributed Units, and the
denominator of which is the gross price at which the Common Stock is sold to the
public in the IPO. No fractional shares or scrip representing fractions of
shares of Common Stock will be issued upon the exchange of Contributed Units.
That portion of each Holder's Contributed Units that would otherwise be
exchanged for a fractional share shall instead be redeemed by Charter Holdco for
a cash payment (calculated to the nearest $.01) equal to such fraction
multiplied by the gross price at which the Common Stock is sold to the public in
the IPO.
2.3. Lockup Agreement. Currently with the execution and delivery of this
Agreement, Holder agrees to deliver a lockup agreement with the underwriters of
the IPO, in the form attached as Exhibit G to the First Contribution Agreement
(the "LOCKUP AGREEMENT").
2.4. Registration Rights Agreement. At the Closing, Charter and each
Holder shall execute and deliver a Registration Rights Agreement among the
Holders and CCI, in the form attached as Exhibit H to the First Contribution
Agreement (the "REGISTRATION RIGHTS AGREEMENT").
3. REPRESENTATIONS AND WARRANTIES.
3.1. Representations and Warranties of CCI. CCI hereby represents and
warrants to each Holder that: (i) it has full power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby,
(ii) the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by all
necessary action on the part of CCI, (iii) this Agreement has been duly and
validly executed and delivered by CCI and is a valid and binding
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agreement of CCI, enforceable against CCI in accordance with its terms, except
(a) as such enforcement may be subject to bankruptcy, insolvency or similar laws
now or hereafter in effect relating to creditors rights generally and (b) as the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
3.2. Holder's Representations and Warranties. Holder hereby represents and
warrants to CCI as follows:
3.2.1. Holder has the full power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
This Agreement has been duly and validly executed and delivered by Holder and is
a valid and binding agreement of Holder, enforceable against it in accordance
with its terms, except as (a) such enforcement may be subject to bankruptcy,
insolvency or similar laws now or hereafter in effect relating to creditors
rights generally and (b) as the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to equitable defenses and to
the discretion of the court before which any proceeding therefor may be brought.
3.2.2. Holder, either alone or (if such Holder designated a
Purchaser Representative in connection with its September 14 acquisition of the
Contributed Units from Holdco) together with a Purchaser Representative (which
Purchaser Representative has completed and delivered to CII a completed
"Purchaser Representative Questionnaire" delivered to each Holder in the Equity
Letter), is an "accredited investor" as defined in Securities and Exchange
Commission ("SEC") Rule 501(a). The "Investor Questionnaire" that was completed
by Holder and delivered to CII together with the executed letter agreement dated
August 27, 1999 from CII to each of the Holders is true and correct in all
material respects as of the date hereof. If, pursuant to such Investor
Questionnaire, Holder designated a "Purchaser Representative", (i) Holder hereby
confirms its appointment of such Purchaser Representative as its purchaser
representative in connection with its purchase of CCI Stock hereunder and (ii)
to the best of Holder's knowledge, such Purchaser Representative's Purchaser
Representative Questionnaire is true and correct in all material respects as of
the date hereof. If Holder acted in the capacity of "Purchaser Representative"
for any other purchaser of Class A Preferred Units, (i) Holder hereby confirms
its appointment as purchaser representative in connection with the purchase of
CCI stock hereunder and (ii) that its previously delivered Purchaser
Representative Questionnaire is true and correct in all material respects as of
the date hereof.
3.2.3. If Holder is a corporation, partnership, trust or other
entity, Holder was not organized for the specific purpose of acquiring the
Common Stock.
3.2.4. Holder has received and reviewed all information Holder
considers necessary or appropriate for deciding whether to invest in the Common
Stock. Holder further represents that Holder has had an opportunity to ask
questions and receive answers from CII, CCI, CCO and Charter Holdco and its
officers and employees regarding the terms and conditions of purchase of the
Common Stock and regarding the business, financial affairs and other aspects of
CCI and has further had the opportunity to obtain any information (to the extent
CII, CCI, CCO or Charter Holdco possesses or can acquire such information
without unreasonable effort or expense) that Holder deems necessary to
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evaluate the investment and to verify the accuracy of information otherwise
provided to Holder.
3.2.5. Holder acknowledges that the Common Stock has not been
registered under the Act, or qualified under any applicable blue sky laws in
reliance, in part, on the representations and warranties herein. Such Issued
Units are being acquired by Holder for investment purposes for Holder's own
account only and not for sale or with a view to distribution of all or any part
of such Common Stock. No other person will have any direct or indirect
beneficial interest in the Common Stock.
3.2.6. Holder understands that the shares of Common Stock are and
will be "restricted securities" under the federal securities laws in that such
securities will be acquired from CCI in a transaction not involving a public
offering, and that under such laws and applicable regulations such securities
may be resold without registration under the Act only in certain limited
circumstances and that otherwise such securities must be held indefinitely.
3.2.7. Holder understands and acknowledges that the shares shall
bear a legend stating in substance:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE, AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED,
PLEDGED OR HYPOTHECATED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SAID ACT (AND ANY APPLICABLE STATE SECURITIES LAWS)
OR AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
THEREOF.
3.3. At the Closing, Holder will own all of the Contributed Units, both of
record and beneficially, free and clear of all liens, encumbrances or adverse
interests of any kind or nature whatsoever (including any restriction on the
right to vote, sell or otherwise dispose of the Contributed Units), other than
those arising under applicable law and those arising under the Operating
Agreement.
3.4. Upon the transfer of the Contributed Units, CCI will receive good
title to the Contributed Units, free and clear of all liens, encumbrances and
adverse interests created by the Holder or any of the Holders
predecessors-in-interest, other than those arising under applicable law or those
arising under the Operating Agreement.
4. CLOSING; CLOSING CONDITIONS.
The closing of the transactions contemplated by this Agreement (the
"CLOSING") shall occur simultaneously with (and shall be contingent upon) the
closing of the IPO and shall take place at a location specified by CCI. At the
Closing, Holder shall (a) contribute to CCI the Contributed Units, (b) deliver
or cause to be delivered to CCI one or more certificates evidencing the
Contributed Units (if such interests are certificated), together with duly
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executed assignments separate from the certificate in a form reasonably
satisfactory to CCI to effectuate the transfer of such Contributed Units to CCI,
(c) execute and deliver the Lockup Agreement, (d) execute and deliver the
Registration Rights Agreement, and (e) countersign the Accretion Put and the
Registration Support Put (as required by and defined in the First Contribution
Agreement). At the Closing, CCI shall execute and deliver the Registration
Rights Agreement and shall deliver or cause to be delivered to Holder the Common
Stock. The Holder and CCI will cooperate so as to permit all documents required
to be delivered at the Closing to be delivered by mail, delivery service or
courier without requiring either party or its representatives to be physically
present at the Closing.
5. GENERAL PROVISIONS.
5.1. Notices. All notices hereunder shall be in writing and shall be
deemed to have been delivered on the date of the first attempted delivery by (i)
the United States Postal Service, unless otherwise provided herein, to the
respective party if mailed by certified mail, return receipt requested, or (ii)
a reputable overnight delivery service, to the respective party at its address
set forth below or such other address as either party may designate to the other
by written notice in accordance herewith:
If to Holder:
R&A Management, LLC
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Telecopy: (000) 000-0000
with a complete copy under separate cover (which copy by itself shall not
constitute notice) to:
Xxxxxx X. Xxxxxx, Esq.
Xxxxx & Xxxxxxxxx
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
If to CCI:
Charter Communications, Inc.
00000 Xxxxxxxxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, President
Telecopy: (000) 000-0000
with a complete copy under separate cover (which copy by itself shall not
constitute notice) to:
Charter Communications, Inc.
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00000 Xxxxxxxxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Senior Vice President & General Counsel
Telecopy: (000) 000-0000
and to:
Irell & Xxxxxxx LLP
1800 Avenue of the Stars
Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
5.2. Construction. Throughout this Agreement, as the context requires, (a)
the singular tense and number includes the plural, and the plural tense and
number includes the singular; (b) the past tense includes the present, and the
present tense includes the past; and (c) references to parties, sections,
schedules, and exhibits mean the parties, sections, schedules, and exhibits of
and to this Agreement. The section headings in this Agreement are inserted only
as a matter of convenience, and in no way define, limit, extend, or interpret
the scope of this Agreement or of any particular section. If there is any
apparent conflict or inconsistency between the provisions set forth in this
Agreement, and the provisions set forth in any schedule or exhibit, to the
extent possible such provisions shall be interpreted in a manner so as to make
them consistent. If it is not possible to interpret such provisions
consistently, the provisions set forth in the body of this Agreement shall
prevail.
5.3. Assignment. None of the parties may assign their rights under this
Agreement without the prior written consent of the other parties; provided,
however, that CCI may assign its rights, benefits or obligations under this
Agreement to one or more entities controlled by or affiliated with them, without
the prior consent of any other party hereto. This Agreement shall be binding on
and inure to the benefit of the parties and their respective successors and
permitted assigns.
5.4. No Third-Party Benefits. None of the provisions of this Agreement are
intended to benefit, or to be enforceable by, any third-party beneficiaries.
5.5. Governing Law. This Agreement is governed by the laws of the State of
Delaware, without regard to Delaware's rules relating to conflict of laws.
5.6. Amendment and Waiver. This Agreement may not be modified or amended
except by an instrument in writing signed by CCI and Holder; provided, however,
that R&A Management, LLC (acting as agent for Holder under the terms of the
Purchase Agreements) shall have the right to consent to an amendment to this
Agreement on behalf of Holder so long as (i) such amendment does not adversely
and discriminatorily affect the Exchanging Group, and (ii) a
majority-in-interest (based on Class A Preferred Units being exchanged) of all
Persons comprising the Exchanging Group consent to such amendment. No waiver of
any provision of this Agreement or of any rights or obligations of any party
under this
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Agreement shall be effective unless in writing and signed by the party or
parties waiving compliance, and shall be effective only in the specific instance
and for the specific purpose stated in that writing.
5.7. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.8. Additional Documents. Each party hereto agrees to execute any and all
further documents and writings and to perform such other actions which may be or
become necessary or expedient to effectuate and carry out this Agreement.
5.9. Severability. Any provision hereof which is prohibited or
unenforceable shall be ineffective only to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof.
5.10. Integration. This Agreement and any documents referred to herein or
therein (the "TRANSACTION DOCUMENTS") contain the entire understanding of the
parties with respect to the subject matter hereof. There are no restrictions,
agreements, promises, representations, warranties, covenants or undertakings
with respect to the subject matter hereof other than those expressly set forth
or referred to herein. Except for the Transaction Documents, this Agreement
supersedes all prior agreements and understandings between the parties with
respect to its subject matter.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
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Signature Page to Contribution Agreement
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date indicated.
CHARTER COMMUNICATIONS, INC
By: _______________________________________
Name:
Title:
CHARTER COMMUNICATIONS HOLDING COMPANY,
LLC
By: _______________________________________
Name:
Title:
HOLDER
___________________________________________
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EXHIBIT A
CONTRIBUTED UNITS
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21
EXHIBIT E
(AND EXHIBIT E TO CONTRIBUTION AGREEMENT)
FORM OF ACCRETION PUT
22
FORM OF [ACCRETION]
PUT AGREEMENT
This Put Agreement ("Agreement") is made as of the ___ day of _____, 199_
[to be dated the day of the exchange closing in connection with IPO] by and
between Xxxx X. Xxxxx, an individual ("Xxxxx"), and __________ (the "Holder"),
with reference to the following facts:
A Charter Communications Operating, LLC ("CCO") is a party to (1) that
certain Purchase and Sale Agreement by and among the persons or entities listed
on the signature pages thereto as "Sellers," and Xxxxxx Acquisition Partners,
L.L.L.P. ("RAP"), dated April 26, 1999 (the "RAP Agreement"), and (2) that
certain Purchase and Sale Agreement by and among the persons or entities listed
on the signature pages thereto as "Sellers," and InterLink Communications
Partners, LLLP ("InterLink"), dated April 26, 1999 (the "InterLink Agreement"
and, together with the RAP Agreement, the "Purchase Agreements"), pursuant to
which CCO and certain of its affiliates have acquired all of the outstanding
equity of RAP and InterLink, respectively.
B Xxxxx is the indirect controlling owner of CCO and expects to derive
benefit from the transactions contemplated by the Purchase Agreements.
C Holder is a former owner of interests in RAP and/or InterLink and, in
connection with the transaction by which CCO acquired RAP and InterLink, and
pursuant to the Contribution Agreement (as defined below), Holder was issued
preferred membership units of Charter Communications Holding Company, LLC
("Charter LLC").
D In connection with the initial public offering of Charter
Communications, Inc. ("CCI"), Holder exchanged its preferred membership units in
Charter LLC for CCI Stock (as defined below), and as a condition of such
exchange, Xxxxx agreed to enter into this Agreement, giving Holder certain
rights with respect to the CCI Stock.
NOW, THEREFORE, in consideration of the respective covenants and
agreements of the parties and for other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged by each party), the
parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms have the
following meanings:
"Closing Price" means, with respect to a share of CCI common stock, (i)
the last reported sales price, regular way, as reported on the principal
national securities exchange on which shares of CCI common stock are listed or
admitted for trading or (ii) if shares of CCI common stock are not listed or
admitted for trading on any national securities exchange, the last reported
sales price, regular way, as reported on the Nasdaq National Market or, in the
absence of any last reported sales price, the average of the highest bid and
lowest asked prices as reported on the Nasdaq Stock Market.
23
"CCI Stock" means all shares of common stock of CCI issued to Holder in
exchange for preferred membership units of Charter LLC, and all other securities
that constitute "CCI Stock" in accordance with Section 5 of this Agreement.
"Contribution Agreement" means the Contribution Agreement dated as of
September 14, 1999, by and among , CCO, Charter Communications Holding Company,
LLC, the Investors, CCI and Xxxxx, as amended by the First Amendment to
Contribution dated as of November ___, 1999.
"IPO Price" means the price per share at which shares of common stock of
CCI are sold to the public in CCI's initial public offering (without reduction
for underwriters' fees, discounts, commissions, and other selling expenses).
"Lockup Agreement" means the agreement entered into between the Holder and
the underwriters of CCI's initial public offering, which, among other things,
prohibits the Holder from selling the CCI Stock until the Lockup Termination
Date.
"Lockup Termination Date" means the earliest date on which the Lockup
Agreement no longer prohibits the Holder from selling the CCI Stock.
"Minimum Amount" means the lesser of (i) CCI Stock for which the Purchase
Price under this Agreement is at least $1,000,000, or (ii) all CCI Stock that is
subject to the Holder's Put Option under this Agreement.
2. Put Option. Xxxxx hereby grants to the Holder the right and option (the
"Put Option"), exercisable from the date hereof through and including the date
of termination of the Put Option under Section 7 by written notice delivered to
Xxxxx, to sell and to permit any of the Holder's Permitted Transferees to sell
to Xxxxx or his designee, from time to time, on one or more occasions, all or
any portion of the CCI Stock held by the Holder and its Permitted Transferees
that represents at least the Minimum Amount. Upon the giving of such notice,
Xxxxx shall be obligated to buy or to cause his designee to buy and, subject to
Section 5.3, the Holder and the Permitted Transferees identified in the Holder's
notice pursuant to this Section 2 shall be obligated to sell, the amount of the
CCI Stock held by the Holder and its Permitted Transferees that is specified in
the Holder's notice pursuant to this Section 2, at the price and upon the terms
and conditions specified in Section 3.
3. Purchase Price; Closing.
3.1 The purchase price to be paid upon any exercise of the Put
Option (the "Purchase Price") shall be equal the IPO Price (calculated in
accordance with Section 5, if applicable), plus interest thereon at a rate of
four and one-half percent (4.5%) per year, compounded annually, for the period
from the date of this Agreement through the closing of the purchase and sale of
the CCI Stock hereunder (the "Closing").
3.2 At each Closing, (a) Xxxxx or his designee shall pay to the
Holder (for itself and on behalf of its Permitted Transferees, if applicable)
the Purchase Price in immediately available funds by wire transfer (if wire
transfer instructions were provided in the notice of exercise) or certified bank
check; and (b) the Holder shall deliver or cause to be delivered to
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24
Xxxxx or his designee one or more certificates evidencing the CCI Stock to be
purchased and sold at such Closing, together with duly executed assignments
separate from the certificate in form and substance reasonably acceptable to
Xxxxx to effectuate the transfer of such CCI Stock to Xxxxx or his designee,
together with a certificate of the Holder and its Permitted Transferee, if
applicable, reaffirming the representations in Section 4.
3.3 Each Closing shall be held at the offices of Irell & Xxxxxxx in
Los Angeles, California, on (or before if Xxxxx so determines) the thirtieth day
after the Holder delivers the written notice described above (or, if such day is
not a business day, on the next business day thereafter), or at such other time
and place as the Holder and Xxxxx may agree. The Holder and Xxxxx will cooperate
so as to permit all documents required to be delivered at the Closing to be
delivered by mail, delivery service or courier without requiring either party or
his or its representatives to be physically present at the Closing.
4. Representations of the Holder. The Holder represents and warrants
to Xxxxx and any of his designees or assignees that on the date hereof and at
each Closing: (a) the Holder has full power and authority to execute and deliver
this Agreement and consummate the transactions contemplated hereby; (b) this
Agreement is the legal, valid and binding obligation of the Holder, enforceable
against the Holder in accordance with its terms; (c) at each Closing, the Holder
or one of its Permitted Transferees will own all of the CCI Stock required to be
purchased and sold at such Closing, both of record and beneficially, free and
clear of all liens, encumbrances or adverse interests of any kind or nature
whatsoever (including any restriction on the right to vote, sell or otherwise
dispose of the CCI Stock), other than those arising under applicable law and
those arising under the organizational documents of CCI; (d) upon the transfer
of the CCI Stock pursuant to Section 3, Xxxxx or his designee will receive good
title to the CCI Stock, free and clear of all liens, encumbrances and adverse
interests created by the Holder, any Permitted Transferee, or any of their
respective predecessors-in-interest, other than those arising under applicable
law or those arising under the organizational documents of CCI.
5. Adjustment for Exchange, Reorganizations, Stock Splits, etc.
5.1 If the number of shares of CCI Stock is increased, decreased,
changed into, or exchanged for a different number or kind of shares or
securities of CCI through reorganization, recapitalization, reclassification,
stock dividend, stock split or reverse stock split, or other similar
transaction, an appropriate adjustment shall be made with respect to number and
kind of shares or securities subject to the Put Option, without change in the
total price applicable to the unexercised portion of the Put Option but with a
corresponding adjustment in the price per unit of any security covered by the
Put Option. Any shares or securities that become subject to the Put Option
pursuant to this Section 5.1 shall constitute "CCI Stock" for purposes of this
Agreement.
5.2 Upon a reorganization, merger or consolidation of CCI with one
or more other corporations or entities (any of the foregoing, a "Business
Combination") pursuant to which the outstanding CCI Stock is converted into or
exchanged for any other security ("Replacement Securities"), the Put Option
shall cease to be exercisable with respect to the securities that previously
constituted "CCI Stock" and shall instead be automatically converted into an
option to sell such number of shares or units of Replacement Securities issued
in exchange for the CCI
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Stock pursuant to such Business Combination at a price per share or unit of
Replacement Securities equal to the aggregate Purchase Price for all CCI Stock
immediately prior to such effectiveness divided by the number of shares or units
of Replacement Securities subject to the Put Option immediately following such
effectiveness. Any Replacement Securities that become subject to the Put Option
pursuant to this Section 5.2 shall constitute "CCI Stock" for purposes of this
Agreement.
5.3 In the event of any proposed Business Combination pursuant to
which the outstanding CCI Stock will be converted into a right to receive
consideration other than securities of CCI or Replacement Securities, (i) Xxxxx
will provide notice thereof to the Holder at least ten (10) days prior to
consummation of such Business Combination and (ii) the Put Option will expire
two days prior to such consummation except with respect to any CCI Stock that is
specified in a notice delivered by the Holder pursuant to Section 2 prior to
such date. If the Holder delivers a notice pursuant to Section 2 after its
receipt of a notice from Xxxxx pursuant to this Section 5.3, the purchase and
sale of any of the CCI Stock specified in the Holder's notice may be conditioned
at the Holder's option on the consummation of the Business Combination described
in Xxxxx'x notice pursuant to this Section 5.3.
6. Representations of Xxxxx. Xxxxx represents and warrants to the Holder
and each Permitted Transferee that on the date hereof and at all times hereafter
through the Closing: (a) Xxxxx has full power and authority to execute and
deliver this Agreement and consummate the transactions contemplated hereby; (b)
this Agreement constitutes the legal, valid and binding obligation of Xxxxx,
enforceable against Xxxxx in accordance with its terms; (c) his execution and
delivery of this Agreement does not, and his performance of his obligations
under this Agreement will not, violate, conflict with or constitute a breach of,
or a default under, any material agreement, indenture or instrument to which he
is a party or which is binding on him, and will not result in the creation of
any lien on, or security interest in, any of his assets (other than such
violations, breaches, defaults, liens or security interests that would not
materially and adversely affect his ability to perform his obligations under
this Agreement); and (d) his Net Worth is and will be greater than $4 billion.
At the request of R&A Management, LLC, a Colorado limited liability company
("R&A"), made (on behalf of Holder together with all other holders receiving put
agreements in connection with the transactions under the Purchase Agreements) no
more frequently than once every 180 days, Xxxxx will within 10 days of such
request deliver to R&A a certificate signed by him or his attorney-in-fact as to
the representation and warranty in clause (d) being true and correct at such
time. "Net Worth" means the excess of the fair market value of Xxxxx'x assets
over the aggregate amount of Xxxxx'x liabilities.
7. Termination of Put Option.
7.1 The Put Option shall terminate on the earliest of the following
dates, except with respect to any CCI Stock that is specified in a notice
delivered by the Holder pursuant to Section 2 prior to such earliest date:
(a) the later of (x) thirty days after the Lockup Termination
Date, or (y) the second anniversary of the date of this Agreement;
(b) the date specified in Section 5.3; and
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(c) the later of (x) thirty days after the Lockup Termination
Date, or (y) the first date on which both of the following conditions are
satisfied:
(i) the Closing Price of CCI common stock has exceeded
115% of the IPO Price for any 90 trading days during the preceding 100
consecutive trading days; and
(ii) all shares of CCI common stock then held by the
Holder or any Permitted Transferee (as defined below) and subject to the Put
Option may be sold to the public in their entirety on such date (x) without
registration under the Securities Act of 1933, as amended (the "Act"), pursuant
to Rule 144 under the Act or another comparable provision or (y) pursuant to a
then effective registration statement under the Act.
7.2 The Put Option shall terminate as to any CCI Stock on the date
on which such CCI Stock is first transferred by the Holder or any Permitted
Transferee to a person or entity that is not a "Permitted Transferee."
7.3 For purposes of determining whether the condition in Section
7.1(c)(i) is satisfied, appropriate adjustments will be made to take into
account any subdivision (by stock split or otherwise) or combination (by reverse
stock split or otherwise) of outstanding shares of CCI common stock occurring
after the consummation of CCI's initial public offering.
8. Miscellaneous.
8.1 No Impairment of other Put Rights. Nothing herein is intended to
supersede, or limit Holder's ability to exercise its rights under, the
Registration Support Put (as defined in the Contribution Agreement).
8.2 Complete Agreement; Modifications. This Agreement constitutes
the parties' entire agreement with respect to the subject matter hereof and
supersedes all other agreements, representations, warranties, statements,
promises and understandings, whether oral or written, with respect to the
subject matter hereof. This Agreement may not be amended, altered or modified
except by a writing signed by both parties.
8.3 Additional Documents. Each party hereto agrees to execute any
and all further documents and writings and to perform such other actions which
may be or become necessary or expedient to effectuate and carry out this
Agreement.
8.4 Notices. Any notice or other communication required or permitted
to be given hereunder shall be in writing and shall be sufficiently given if
delivered in person or transmitted by telecopy or similar means of recorded
electronic communication to the relevant party, addressed as follows (or at such
other address as either party shall have designated by notice as herein provided
to the other party):
If to the Holder:
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with a copy to:
If to Xxxxx:
Xxxx X. Xxxxx
c/o Xxxxxxx X. Xxxxx @ Vulcan Northwest
000 000xx Xxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
with a copy to:
Irell & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
Telecopy: (000) 000-0000
Any such notice or other communication shall be deemed to have been given and
received on the day on which it is delivered or telecopied (or, if such day is
not a business day or if the notice or other communication is not telecopied
during business hours, at the place of receipt, on the next following business
day); provided, however, that any such notice or other communication shall be
deemed to have been given and received on the day on which it is sent if
delivery thereof is refused or if delivery thereof in the manner described above
is not possible because of the intended recipient's failure to advise the
sending party of a change in the intended recipient's address or telecopy
number.
8.5 No Third-Party Benefits. None of the provisions of this
Agreement shall be for the benefit of, or enforceable by, any person or entity
that is not a party to this Agreement, other than any Permitted Transferees of
the Holder.
8.6 Waivers Strictly Construed. With regard to any power, remedy or
right provided herein or otherwise available to any party hereunder (a) no
waiver or extension of time shall be effective unless expressly contained in a
writing signed by the waiving party; and (b) no alternation, modification or
impairment shall be implied by reason of any previous waiver, extension of time,
delay or omission in exercise or other indulgence.
8.7 Severability. The validity, legality or enforceability of the
remainder of this Agreement shall not be affected even if one or more of the
provisions of this Agreement shall be held to be invalid, illegal or
unenforceable in any respect.
8.8 Undertakings. All authority herein conferred or agreed to be
conferred upon a party to this Agreement and all agreements of a party contained
herein shall survive the death or incapacity of such party (or any of them).
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8.9 Successors and Assigns. Except as provided herein to the
contrary, this Agreement shall be binding upon and shall inure to the benefit of
the parties, their respective heirs, estates, personal representatives,
conservators, successors and permitted assigns.
8.10 Assignments.
(a) The Holder and any Permitted Transferee may transfer some
or all of its CCI Stock to any of the following persons or entities (each such
person or entity, a "Permitted Transferee"), and the Permitted Transferee shall
thereupon have the rights provided in this Agreement:
(i) any person or entity that was among the "Investors"
who were party to the Contribution Agreement;
(ii) any person or entity that, directly or indirectly,
through the ownership of voting securities, controls, is controlled by, or is
commonly controlled with the Holder;
(iii) a trust for the benefit of the equity owners of
the Holder and of which the trustee or trustees are one or more persons or
entities that either control, or are commonly controlled with, the Holder or are
banks, trust companies, or similar entities;
(iv) any person or entity for which the Holder is acting
as nominee or any trust controlled by or under common control with such person
or entity;
(v) if the Holder is an individual, any charitable
foundation, charitable trust, or similar entity, the estate, heirs, or legatees
of the Holder upon the Holder's death, any member of the Holder's family, any
trust or similar entity for the benefit of the Holder or one or more members of
the Holder's family, or any entity controlled by the Holder or one or more
members of the Holder's family.
(b) The Holder may assign all its rights and delegate all its
obligations under this Agreement to any Permitted Transferee, and such Permitted
Transferee shall thereupon be deemed to be the "Holder" for purposes of this
Agreement.
(c) Xxxxx is entitled, in his sole discretion, to assign his
rights to purchase any CCI Stock under this Agreement to one or more entities
controlled by Xxxxx, but no such assignment will relieve Xxxxx of any of his
obligations under this Agreement.
8.11 Governing Law. This Agreement shall be governed by the laws of
the State of Delaware, without regard to any choice of law provisions of that
state or the laws of any other jurisdiction.
8.12 Headings. The Section headings in this Agreement are inserted
only as a matter of convenience and in no way define, limit, extend or interpret
the scope of this Agreement or of any particular Section.
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8.13 Number and Gender. Throughout this Agreement, as the context
may require, (a) the masculine gender includes the feminine and neuter; and the
neuter gender includes the masculine and feminine; and (b) the singular tense
and number includes the plural, and the plural tense and number includes the
singular.
8.14 Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
8.15 Costs. Except as otherwise provided in this Agreement, each
party will bear his or its own costs in connection with the exercise of the
Holder's right under this Agreement and the purchase and sale of any CCI Stock
pursuant to this Agreement.
8.16 Default. In the event of any legal action between the parties
arising out of or in relation to this Agreement, the prevailing party in such
legal action shall be entitled to recover, in addition to any other legal
remedies, all of his or its costs and expenses, including reasonable attorney's
fees, from the non-prevailing party, regardless of whether such legal action is
prosecuted to completion.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the date first set forth above.
---------------------------------
Xxxx X. Xxxxx, by Xxxxxxx X. Xxxxx,
attorney-in-fact
[SIGNATURE PAGE TO ACCRETION PUT]
31
HOLDER
[SIGNATURE PAGE TO ACCRETION PUT]
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EXHIBIT F
(AND EXHIBIT F TO CONTRIBUTION AGREEMENT)
FORM OF REGISTRATION SUPPORT PUT
33
FORM OF [REGISTRATION SUPPORT PUT]
PUT AGREEMENT
This Put Agreement ("Agreement") is made as of the ___ day of _____,
199_ [to be dated the day of the exchange closing in connection with IPO] by and
between Xxxx X. Xxxxx, an individual ("Xxxxx"), and __________ (the "Holder"),
with reference to the following facts:
A Charter Communications Operating, LLC ("CCO") is a party to (1) that
certain Purchase and Sale Agreement by and among the persons or entities listed
on the signature pages thereto as "Sellers," and Xxxxxx Acquisition Partners,
L.L.L.P. ("RAP"), dated April 26, 1999 (the "RAP Agreement"), and (2) that
certain Purchase and Sale Agreement by and among the persons or entities listed
on the signature pages thereto as "Sellers," and InterLink Communications
Partners, LLLP ("InterLink"), dated April 26, 1999 (the "InterLink Agreement"
and, together with the RAP Agreement, the "Purchase Agreements"), pursuant to
which CCO and certain of its affiliates have acquired all of the outstanding
equity of RAP and InterLink, respectively.
B Xxxxx is the indirect controlling owner of CCO and expects to derive
benefit from the transactions contemplated by the Purchase Agreements.
C Holder is a former owner of interests in RAP and/or InterLink and, in
connection with the transaction by which CCO acquired RAP and InterLink, Holder
was issued preferred membership units of Charter Communications Holding Company,
LLC ("Charter LLC").
D In connection with the initial public offering of Charter
Communications, Inc. ("CCI"), Holder exchanged its preferred membership units in
Charter LLC for CCI Stock (as defined below), and as a condition of such
exchange, Xxxxx agreed to enter into this Agreement, giving Holder certain
rights with respect to the CCI Stock.
NOW, THEREFORE, in consideration of the respective covenants and
agreements of the parties and for other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged by each party), the
parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms have the
following meanings:
"Closing Price" means, with respect to a share of CCI common stock, (i)
the last reported sales price, regular way, as reported on the principal
national securities exchange on which shares of CCI common stock are listed or
admitted for trading or (ii) if shares of CCI common stock are not listed or
admitted for trading on any national securities exchange, the last reported
sales price, regular way, as reported on the Nasdaq National Market or, if such
last reported sales price is not available, the average of the highest bid and
lowest asked prices as reported on the Nasdaq Stock Market.
"CCI Stock" means all shares of common stock of CCI issued to Holder in
exchange for preferred membership units of Charter LLC, and all other securities
that constitute "CCI Stock" in accordance with Section 5 of this Agreement.
34
"Contribution Agreement" means the Contribution Agreement dated as of
September 14, 1999, by and among , CCO, Charter Communications Holding Company,
LLC, the Investors, CCI and Xxxxx, as amended by the First Amendment to
Contribution dated as of November ___, 1999.
"Registration Rights Agreement" means that certain Registration Rights
Agreement, dated the date hereof, among CCI, the Holder and certain additional
holders of CCI Stock executing such agreement.
2. Put Option. Xxxxx hereby grants to the Holder the right and option
(the "Put Option"), exercisable by written notice in the form attached as
Exhibit A hereto delivered to Xxxxx at any time after the date that is 180 days
from the date hereof until the date of termination of the Put Option under
Section 7, to sell and to permit any of the Holder's Permitted Transferees to
sell to Xxxxx or his designee, from time to time, on one or more occasions, all
or any portion of the Registrable Securities (as defined in the Registration
Statement) held by the Holder and its Permitted Transferees; provided, however,
that the Put Option shall not be exercisable unless on the date the written
notice of exercise is delivered the Registrable Securities specified in the
Holder's notice pursuant to this Section 2 are not then able to be resold under
the Registration Statement contemplated by the Registration Rights Agreement
(whether or not such inability constitutes a breach of the Registration Rights
Agreement). Upon the giving of such notice, Xxxxx shall be obligated to buy or
to cause his designee to buy and, subject to Section 5.3, the Holder and the
Permitted Transferees identified in the Holder's notice pursuant to this Section
2 shall be obligated to sell, the amount of the CCI Stock held by the Holder and
its Permitted Transferees that is specified in the Holder's notice pursuant to
this Section 2, at the price and upon the terms and conditions specified in
Section 3.
3. Purchase Price; Closing.
3.1 The purchase price to be paid upon any exercise of the Put
Option (the "Purchase Price") shall be equal to the Closing Price of CCI common
stock on the date on which the Holder's notice of exercise is delivered under
Section 2 (or if such date is not a trading day, then the Closing Price on the
next trading day).
3.2 At each closing of the purchase and sale of the CCI Stock
pursuant to the exercise of the Put Option (the "Closing"), (a) Xxxxx or his
designee shall pay to the Holder (for itself and on behalf of its Permitted
Transferees, if applicable) the Purchase Price in immediately available funds by
wire transfer (if wire transfer instructions were provided in the notice of
exercise) or certified bank check; and (b) the Holder shall deliver or cause to
be delivered to Xxxxx or his designee one or more certificates evidencing the
CCI Stock to be purchased and sold at such Closing, together with duly executed
assignments separate from the certificate in form and substance reasonably
acceptable to Xxxxx to effectuate the transfer of such CCI Stock to Xxxxx or his
designee, together with a certificate of the Holder and its Permitted
Transferee, if applicable, reaffirming the representations in Section 4.
3.3 Each Closing shall be held at the offices of Irell & Xxxxxxx in
Los Angeles, California, on the thirtieth day after the Holder delivers the
written notice described above (or, if such day is not a business day, on the
next business day thereafter), or at such other time and
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place as the Holder and Xxxxx may agree. The Holder and Xxxxx will cooperate so
as to permit all documents required to be delivered at the Closing to be
delivered by mail, delivery service or courier without requiring either party or
his or its representatives to be physically present at the Closing.
4. Representations of the Holder. The Holder represents and warrants to
Xxxxx and any of his designees or assignees that on the date hereof and at each
Closing: (a) the Holder has full power and authority to execute and deliver this
Agreement and consummate the transactions contemplated hereby; (b) this
Agreement is the legal, valid and binding obligation of the Holder, enforceable
against the Holder in accordance with its terms; (c) at each Closing, the Holder
or one of its Permitted Transferees will own all of the CCI Stock required to be
purchased and sold at such Closing, both of record and beneficially, free and
clear of all liens, encumbrances or adverse interests of any kind or nature
whatsoever (including any restriction on the right to vote, sell or otherwise
dispose of the CCI Stock), other than those arising under applicable law and
those arising under the organizational documents of CCI; (d) upon the transfer
of the CCI Stock pursuant to Section 3, Xxxxx or his designee will receive good
title to the CCI Stock, free and clear of all liens, encumbrances and adverse
interests created by the Holder, any Permitted Transferee, or any of their
respective predecessors-in-interest, other than those arising under applicable
law or those arising under the organizational documents of CCI.
5. Adjustment for Exchange, Reorganizations, Stock Splits, etc.
5.1 If the number of shares of CCI Stock is increased, decreased,
changed into, or exchanged for a different number or kind of publicly-traded
shares or securities of CCI through reorganization, recapitalization,
reclassification, stock dividend, stock split or reverse stock split, or other
similar transaction, an appropriate adjustment shall be made with respect to
number and kind of shares or securities subject to the Put Option. Any shares or
securities that become subject to the Put Option pursuant to this Section 5.1
shall constitute "CCI Stock" for purposes of this Agreement.
5.2 Upon a reorganization, merger or consolidation of CCI with one
or more other corporations or entities (any of the foregoing, a "Business
Combination") pursuant to which the outstanding CCI Stock is converted into or
exchanged in whole or in part for any other publicly-traded security
("Replacement Securities"), the Put Option shall cease to be exercisable with
respect to the securities that previously constituted "CCI Stock" and shall
instead be automatically converted into an option to sell such number of shares
or units of Replacement Securities issued in exchange for the CCI Stock pursuant
to such Business Combination at a price per share or unit of Replacement
Securities equal to the aggregate Purchase Price for all CCI Stock immediately
prior to such effectiveness divided by the number of shares or units of
Replacement Securities subject to the Put Option immediately following such
effectiveness. Any Replacement Securities that become subject to the Put Option
pursuant to this Section 5.2 shall constitute "CCI Stock" for purposes of this
Agreement.
5.3 In the event of any proposed Business Combination pursuant to
which the outstanding CCI Stock will be converted in whole or in part into a
right to receive consideration other than publicly-traded securities of CCI or
Replacement Securities, (i) Xxxxx will provide notice thereof to the Holder at
least ten (10) days prior to consummation of such Business
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Combination and (ii) the Put Option will expire two days prior to such
consummation except with respect to any CCI Stock that is specified in a notice
delivered by the Holder pursuant to Section 2 prior to such date and except to
the extent the Put Option will continue under 5.2 as to that portion of the
consideration received constituting Replacement Securities. If the Holder
delivers a notice pursuant to Section 2 after its receipt of a notice from Xxxxx
pursuant to this Section 5.3, the purchase and sale of any of the CCI Stock
specified in the Holder's notice may be conditioned at the Holder's option on
the consummation of the Business Combination described in Xxxxx'x notice
pursuant to this Section 5.3.
6. Representations of Xxxxx. Xxxxx represents and warrants to the
Holder and each Permitted Transferee that on the date hereof and at all times
hereafter through the Closing: (a) Xxxxx has full power and authority to execute
and deliver this Agreement and consummate the transactions contemplated hereby;
(b) this Agreement constitutes the legal, valid and binding obligation of Xxxxx,
enforceable against Xxxxx in accordance with its terms; (c) his execution and
delivery of this Agreement does not, and his performance of his obligations
under this Agreement will not, violate, conflict with or constitute a breach of,
or a default under, any material agreement, indenture or instrument to which he
is a party or which is binding on him, and will not result in the creation of
any lien on, or security interest in, any of his assets (other than such
violations, breaches, defaults, liens or security interests that would not
materially and adversely affect his ability to perform his obligations under
this Agreement); and (d) his Net Worth is and will be greater than $4 billion.
At the request of R&A Management, LLC, a Colorado limited liability company
("R&A"), made (on behalf of Holder together with all other holders receiving put
agreements in connection with the transactions under the Purchase Agreements) no
more frequently than once every 180 days, Xxxxx will within 10 days of such
request deliver to R&A a certificate signed by him or his attorney-in-fact as to
the representation and warranty in clause (d) being true and correct at such
time. "Net Worth" means the excess of the fair market value of Xxxxx'x assets
over the aggregate amount of Xxxxx'x liabilities.
7. Termination of Put Option. The Put Option shall terminate on the
earlier of (i) the date on which all Registrable Securities covered by the
Registration Statement have been sold pursuant to the Shelf Registration (each
as defined in the Registration Rights Agreement) or otherwise sold (other than
to Permitted Transferrees) and (ii) the date two years from the date hereof.
8. Miscellaneous.
8.1 No Impairment of other Put Rights. Nothing herein is intended to
supersede, or limit Holder's ability to exercise its rights under, the Accretion
Put (as defined in the Contribution Agreement).
8.2 Complete Agreement; Modifications. This Agreement constitutes
the parties' entire agreement with respect to the subject matter hereof and
supersedes all other agreements, representations, warranties, statements,
promises and understandings, whether oral or written, with respect to the
subject matter hereof. This Agreement may not be amended, altered or modified
except by a writing signed by both parties.
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8.3 Additional Documents. Each party hereto agrees to execute any
and all further documents and writings and to perform such other actions which
may be or become necessary or expedient to effectuate and carry out this
Agreement.
8.4 Notices. Any notice or other communication required or permitted
to be given hereunder shall be in writing and shall be sufficiently given if
delivered in person or transmitted by telecopy or similar means of recorded
electronic communication to the relevant party, addressed as follows (or at such
other address as either party shall have designated by notice as herein provided
to the other party):
If to the Holder:
with a copy to:
If to Xxxxx:
Xxxx X. Xxxxx
c/o Xxxxxxx X. Xxxxx @ Vulcan Northwest
000 000xx Xxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
with a copy to:
Irell & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
Telecopy: (000) 000-0000
Any such notice or other communication shall be deemed to have been given and
received on the day on which it is delivered or telecopied (or, if such day is
not a business day or if the notice or other communication is not telecopied
during business hours, at the place of receipt, on the next following business
day); provided, however, that any such notice or other communication shall be
deemed to have been given and received on the day on which it is sent if
delivery thereof is refused or if delivery thereof in the manner described above
is not possible because of the intended recipient's failure to advise the
sending party of a change in the intended recipient's address or telecopy
number.
8.5 No Third-Party Benefits. None of the provisions of this Agreement
shall be for the benefit of, or enforceable by, any person or entity that is not
a party to this Agreement, other than any Permitted Transferees of the Holder.
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8.6 Waivers Strictly Construed. With regard to any power, remedy or
right provided herein or otherwise available to any party hereunder (a) no
waiver or extension of time shall be effective unless expressly contained in a
writing signed by the waiving party; and (b) no alternation, modification or
impairment shall be implied by reason of any previous waiver, extension of time,
delay or omission in exercise or other indulgence.
8.7 Severability. The validity, legality or enforceability of the
remainder of this Agreement shall not be affected even if one or more of the
provisions of this Agreement shall be held to be invalid, illegal or
unenforceable in any respect.
8.8 Undertakings. All authority herein conferred or agreed to be
conferred upon a party to this Agreement and all agreements of a party contained
herein shall survive the death or incapacity of such party (or any of them).
8.9 Successors and Assigns. Except as provided herein to the contrary,
this Agreement shall be binding upon and shall inure to the benefit of the
parties, their respective heirs, estates, personal representatives,
conservators, successors and permitted assigns.
8.10 Assignments.
(a) The Holder and any Permitted Transferee may transfer some or
all of its CCI Stock to any of the following persons or entities (each such
person or entity, a "Permitted Transferee"), and the Permitted Transferee shall
thereupon have the rights provided in this Agreement:
(i) any person or entity that was among the "Investors" who were
party to the Contribution Agreement;
(ii) any person or entity that, directly or indirectly, through
the ownership of voting securities, controls, is controlled by, or is commonly
controlled with the Holder;
(iii) a trust for the benefit of the equity owners of the Holder
and of which the trustee or trustees are one or more persons or entities that
either control, or are commonly controlled with, the Holder or are banks, trust
companies, or similar entities;
(iv) any person or entity for which the Holder is acting as
nominee or any trust controlled by or under common control with such person or
entity;
(v) if the Holder is an individual, any charitable foundation,
charitable trust, or similar entity, the estate, heirs, or legatees of the
Holder upon the Holder's death, any member of the Holder's family, any trust or
similar entity for the benefit of the Holder or one or more members of the
Holder's family, or any entity controlled by the Holder or one or more members
of the Holder's family.
(b) The Holder may assign all its rights and delegate all its
obligations under this Agreement to any Permitted Transferee, and such Permitted
Transferee shall thereupon be deemed to be the "Holder" for purposes of this
Agreement.
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(c) Xxxxx is entitled, in his sole discretion, to assign his
rights to purchase any CCI Stock under this Agreement to one or more entities
controlled by Xxxxx, but no such assignment will relieve Xxxxx of any of his
obligations under this Agreement.
8.11 Governing Law. This Agreement shall be governed by the laws
of the State of Delaware, without regard to any choice of law provisions of that
state or the laws of any other jurisdiction.
8.12 Headings. The Section headings in this Agreement are inserted
only as a matter of convenience and in no way define, limit, extend or interpret
the scope of this Agreement or of any particular Section.
8.13 Number and Gender. Throughout this Agreement, as the context
may require, (a) the masculine gender includes the feminine and neuter; and the
neuter gender includes the masculine and feminine; and (b) the singular tense
and number includes the plural, and the plural tense and number includes the
singular.
8.14 Counterparts. This Agreement may be executed simultaneously
in two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
8.15 Costs. Except as otherwise provided in this Agreement, each
party will bear his or its own costs in connection with the exercise of the
Holder's right under this Agreement and the purchase and sale of any CCI Stock
pursuant to this Agreement.
8.16 Default. In the event of any legal action between the parties
arising out of or in relation to this Agreement, the prevailing party in such
legal action shall be entitled to recover, in addition to any other legal
remedies, all of his or its costs and expenses, including reasonable attorney's
fees, from the non-prevailing party, regardless of whether such legal action is
prosecuted to completion.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first set forth above.
---------------------------------
Xxxx X. Xxxxx, by Xxxxxxx X. Xxxxx,
attorney-in-fact
[SIGNATURE PAGE TO REGISTRATION SUPPORT PUT]
41
HOLDER
[SIGNATURE PAGE TO REGISTRATION SUPPORT PUT]
42
Exhibit A
Notice of Exercise
43
EXHIBIT H
(AND EXHIBIT H TO CONTRIBUTION AGREEMENT)
FORM OF REGISTRATION RIGHTS AGREEMENT
44
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of
__________, is entered into by and among Charter Communications, Inc., a
Delaware corporation ("Charter") and the stockholders listed on the signature
pages hereto (the "Holders").
PRELIMINARY STATEMENTS
Pursuant to the Contribution Agreement, dated as of September 14, 1999,
by and among Charter Communications Holding Company ("Charter Holdco"), LLC,
Xxxx X. Xxxxx, Charter and the Holders, as amended by the First Amendment to
Contribution dated as of November __, 1999 (as amended, the "Contribution
Agreement"), each Holder has exchanged certain Class A Preferred Units in
Charter Holdco for shares of Common Stock (as hereinafter defined). Capitalized
terms not otherwise defined herein shall have the meaning set forth in the
Contribution Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreement and covenants hereinafter set forth and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Certain Definitions.
1.1 Terms Defined in this Section. For purposes of this Agreement,
the following terms have the following meanings:
"Business Day" means any day other than a Saturday, Sunday, or other
day on which commercial banking institutions in New York, New York are required
or authorized by law to remain closed.
"Charter Indemnified Parties" means Charter, its officers, directors,
employees, and agents, and each Person, if any, who controls Charter within the
meaning of either the Securities Act or the Exchange Act, and the officers,
directors, employees, and agents of the foregoing parties.
"Class A Preferred Units" has the meaning ascribed to that term in the
Operating Agreement.
"Common Stock" means the Class A Common Stock, par value $.001 per
share, of Charter and any securities into or for which such securities are
converted or exchanged by Charter.
"Exchange Act" means the Securities Exchange Act of 1934, or any
successor federal statute, and the rules and regulations of the SEC promulgated
thereunder, in each case as amended from time to time.
"Indemnified Party" means a Person claiming a right to indemnification
pursuant to Section 5 of this Agreement.
45
"Indemnifying Party" means a Person required to provide indemnification
pursuant to Section 5 of this Agreement.
"Losses" means any losses, claims, damages, or liabilities, and any
related legal or other fees and expenses.
"Operating Agreement" means that certain Amended and Restated Limited
Liability Company Agreement of Charter Holdco effective as of September 14,
1999, as amended from time to time.
"Permitted Transferee" means, with respect to a Stockholder, (i) any
party to this Agreement; (ii) any Person that, directly or indirectly, through
the ownership of voting securities, controls, is controlled by, or is commonly
controlled with such Stockholder; (iii) a trust for the benefit of the equity
owners of such Stockholder and of which the trustee or trustees are one or more
Persons that either control, or are commonly controlled with, such Stockholder
or are banks, trust companies, or similar entities; (iv) any Person for which
such Stockholder is acting as nominee or any trust controlled by or under common
control with such person or entity; or (v) if such Stockholder is an individual,
any charitable foundation, charitable trust, or similar entity, the estate,
heirs, or legatees of such Stockholder upon the Investor's death, any member of
such Stockholder's immediate family, any trust or similar entity for the benefit
of the Investor or one or more members of such Stockholder's immediate family,
or any entity controlled by the Investor or one or more members of such
Stockholder's immediate family.
"Person" means any individual, corporation, partnership, limited
partnership, limited liability partnership, limited liability company, trust,
association, organization, or other entity.
"Prospectus" means the prospectus included in a Registration Statement
as of the date it becomes effective under the Securities Act and, in the case of
references to the Prospectus as of a date subsequent to the effective date of
the Registration Statement, as amended or supplemented as of such date,
including all documents incorporated by reference therein, each as amended, and
each applicable prospectus supplement relating to the offering and sale of any
of the Registrable Securities pursuant to such Registration Statement.
"Registrable Securities" means:
(i) any shares of Common Stock that are issued to a Stockholder in
exchange for Class A Preferred Units pursuant to the Second Contribution
Agreement, and
(ii) any securities of Charter or its successors issued or issuable
with respect to any shares referred to in paragraph (i) whether by way of
conversion, exchange, dividend, or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation, or other
reorganization or otherwise.
Securities that are Registrable Securities will cease to be Registrable
Securities:
(i) when a registration statement with respect to the sale of such
securities has become effective under the Securities Act and such securities
have been disposed of in accordance with such registration statement,
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(ii) when such securities shall have been sold pursuant to Rule 144
or Rule 145 (or any successor provisions) under the Securities Act or in any
other transaction in which the applicable purchaser does not receive "restricted
securities" (as that term is defined for purposes of Rule 144 under the
Securities Act),
(iii) on the first date on which such securities can be sold and
without regard to the volume and manner of sale limitations set forth in Rule
144 (or any successor provision), or
(iv) when such securities cease to be outstanding.
"Registration Statement" means a shelf registration statement
(including the related Prospectus) of Charter under Rule 415 the Securities Act
on any form selected by Charter for which Charter then qualifies and which
permits the sale thereunder of the number and type of Registrable Securities
(and any other securities of Charter) to be included therein in accordance with
this Agreement by the Selling Stockholders and any other sellers in the manner
described herein. The term "Registration Statement" shall also include all
exhibits, financial statements, and schedules and all documents incorporated by
reference in such Registration Statement when it becomes effective under the
Securities Act, and in the case of the references to the Registration Statement
as of a date subsequent to the effective date, as amended or supplemented as of
such date.
"SEC" means the Securities and Exchange Commission, or any other
federal agency at the time administering the Securities Act or the Exchange Act.
"Securities Act" means the Securities Act of 1933, or any successor
federal statute, and the rules and regulations of the SEC promulgated
thereunder, in each case as amended from time to time.
"Selling Stockholder" means any Stockholder whose Registrable
Securities are included in any Registration Statement pursuant to Section 2.
"Stockholder" means each party to this Agreement who owns Registrable
Securities or has the right to acquire Registrable Securities pursuant to the
Contribution Agreement and any other Person:
(i) to whom any Registrable Securities or any rights to acquire any
Registrable Securities are transferred by any Person that was, immediately prior
to such transfer, a Stockholder,
(ii) who continues to hold such Registrable Securities or the right
to acquire such Registrable Securities,
(iii) to whom the transferring Stockholder has assigned any of its
rights under this Agreement, in whole or in part, in accordance with the
provisions of Section 6.7 of this Agreement with respect to such Registrable
Securities, and
(iv) who has executed a counterpart hereof in connection with the
transfer of such Registrable Securities.
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"Stockholder Representative" means R&A Management, LLC or such other
party as the Sellers shall notify Charter from time to time in a writing signed
by Holders of a majority in interest of the then Registrable Securities.
"Stockholder Indemnified Parties" means each Selling Stockholder, its
officers, directors, members, partners, employees, and agents, each Person (if
any) who controls such Selling Stockholder within the meaning of either the
Securities Act or the Exchange Act, and the officers, directors, members,
partners, employees, and agents of the foregoing parties.
1.2 Terms Defined Elsewhere in this Agreement. For purposes of this
Agreement, the following terms have the meanings set forth in the sections
indicated:
Term Section
---- -------
Material Event Section 2.3(a)
Registration Expenses Section 4.1
1.3 Terms Generally. The definitions in this Agreement shall apply
equally to both the singular and plural forms of the terms defined. Whenever the
context requires, any pronoun includes the corresponding masculine, feminine,
and neuter forms. The words "include," "includes," and "including" are not
limiting. Any reference in this Agreement to a "day" or number of "days"
(without the explicit qualification of "Business") shall be interpreted as a
reference to a calendar day or number of calendar days. If any action or notice
is to be taken or given on or by a particular calendar day, and such calendar
day is not a Business Day, then such action or notice shall be deferred until,
or may be taken or given on, the next Business Day.
2. Shelf Registration.
2.1 Shelf Registration. Charter shall file, and use its best efforts
to cause to become effective by the date which is six months after the date
hereof, a Registration Statement registering the sale by the Stockholders of all
of the Registrable Securities; provided, however, that during the time the
Registration Statement is effective, Charter may require from time to time that
the Selling Stockholders refrain from selling pursuant to such registration
under the circumstances, in the manner, and for the time period described in
Section 2.3.
2.2 Other Securities. In addition to the Registrable Securities, the
Registration Statement may also register the sale of securities to be sold for
the account of Charter or for any stockholder of Charter not holding Registrable
Securities.
2.3 Delay of Filing or Sales.
(a) Charter shall have the right, exercisable by giving written
notice of the exercise of such right to the applicable Selling Stockholders,
subject to Section 2.3(b), at any time and from time to time, to delay filing or
the declaration of effectiveness of a Registration Statement or to require the
applicable Selling Stockholders not to sell any Registrable Securities pursuant
to an effective Registration Statement for a period not in excess of 120 days
beginning on the date on which such notice is given, or such shorter period of
time as may be specified in such notice or in a subsequent notice delivered by
Charter to such effect prior to or during the effectiveness of the Registration
Statement, if:
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(i) Charter is engaged in discussions or negotiations with
respect to, or there otherwise is pending, any merger, acquisition, or other
form of business combination that is "probable" (within the meaning of the
Securities Act), any divestiture, tender offer, financing, or other event that,
in any such case, is material to Charter (any such activity or event, a
"Material Event"),
(ii) such Material Event would, in the judgment of Charter's
board of directors (after consultation with counsel), require disclosure so as
to permit the Registrable Securities to be sold in compliance with law, and
(iii) disclosure of such Material Event would, in the judgment
of Charter's board of directors (after consultation with counsel), be adverse to
its interests.
(b) Charter may not delay the filing of a Registration Statement or
the sale of any Registrable Securities, whether pursuant to one or more notices
pursuant to Section 2.3(a), for more than an aggregate of 120 days within any
12-month period.
(c) Charter shall have the right, exercisable by giving notice of
the exercise of such right to the applicable Selling Stockholders, to delay
filing or the declaration of effectiveness of a Registration Statement during
any period in which, as a result of Charter's failure to satisfy the conditions
in Rule 3-01(c) of Regulation S-X, Charter is required to include in the
Registration Statement audited financial statements of Charter prior to the date
on which such audited financial statements would normally have been prepared in
accordance with Charter's past practices and the SEC's periodic reporting
requirements.
2.4 Continuing Effectiveness of Registration Statement. In
connection with any registration pursuant to Section 2.1, subject to Section
2.3, Charter will use its best efforts to prepare and file with the SEC any
amendments and supplements to the Registration Statement and the Prospectus used
in connection therewith, and to take any other actions, that may be necessary to
keep the Registration Statement and the Prospectus effective, current, and in
compliance with the provisions of the Securities Act, until the date two years
from the date hereof (or, if earlier, the date on which there remain no
Registrable Securities outstanding).
3. Obligations with Respect to Registration.
3.1 Obligations of Charter. Whenever Charter is obligated by the
provisions of this Agreement to effect the registration of any Registrable
Securities under the Securities Act, Charter shall:
(a) Within a reasonable time not to exceed ten Business Days prior
to filing a Registration Statement or Prospectus or any amendment or supplement
thereto (other than any amendment or supplement in the form of a filing that
Charter makes pursuant to the Exchange Act), furnish to each Selling Stockholder
copies of such Registration Statement or Prospectus as proposed to be filed,
which documents will be subject to the reasonable review and comments of the
Selling Stockholders (and their respective counsel) during such period, and
Charter will not file any Registration Statement or any Prospectus or any
amendment or supplement thereto containing any statements with respect to any
Selling Stockholder or the distribution of the Registrable Securities to be
included in such Registration Statement for sale
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by such Selling Stockholder if such Selling Stockholder reasonably objects in
writing. Thereafter, Charter will furnish to each Selling Stockholder such
number of copies of such Registration Statement, each amendment and supplement
thereto (in each case including all exhibits thereto and any documents
incorporated by reference), the Prospectus included in such Registration
Statement (including each preliminary Prospectus), and such other documents as
such Selling Stockholder may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such Selling Stockholder.
(b) After the filing of the Registration Statement, promptly notify
each Selling Stockholder of the effectiveness thereof and of any stop order
issued or threatened by the SEC and take all reasonable actions required to
prevent the entry of such stop order or to remove it at the earliest possible
moment if entered and promptly notify each Selling Stockholder of the lifting or
withdrawal of any such order.
(c) Immediately notify each Selling Stockholder holding Registrable
Securities covered by the applicable Registration Statement at any time when a
Prospectus relating thereto is required to be delivered under the Securities
Act, of (i) the determination that a Material Event exists or (ii) the
occurrence of an event requiring the preparation of a supplement or amendment to
such Prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such Prospectus will not contain an untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading and promptly make available to such Selling
Stockholder any such supplement or amendment, and subject to the provisions of
this Agreement regarding the existence of a Material Event, Charter will
promptly prepare and furnish to each such Selling Stockholder a supplement to or
an amendment of such Prospectus so that, as thereafter delivered to the
purchasers of such Registrable Securities, such Prospectus will not contain any
untrue statement of material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading.
(d) Make available for inspection by any Selling Stockholder covered
by such Registration Statement and any attorney, accountant, or other
professional retained by any such Selling Stockholder, all financial and other
records, pertinent corporate documents, and properties of Charter as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility in connection therewith, and cause Charter's officers, directors,
and employees to supply all information reasonably requested by any of such
Persons in connection with such Registration Statement. Information that Charter
determines, in good faith, to be confidential and notifies such Persons is
confidential shall not be disclosed by such Persons unless (i) the release of
such information is ordered pursuant to a subpoena or other order from a court,
or other governmental agency or tribunal, of competent jurisdiction or (ii) such
information becomes public other than through a breach by such Persons of the
confidentiality obligations of such Persons. Each Selling Stockholder agrees
that information obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it as the basis for any transactions in
the securities of Charter or for any other purpose unless and until such
information is made generally available to the public.
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(e) Register or qualify the Registrable Securities covered by a
Registration Statement under the securities or blue sky laws of such United
States jurisdictions as the Stockholder Representative shall reasonably request,
and do any and all other acts and things which may be necessary to enable each
Selling Stockholder to consummate the disposition in such jurisdictions of such
Registrable Securities in accordance with the method of distribution described
in such Registration Statement; provided, however, that Charter shall not be
required (i) to qualify to do business as a foreign corporation in any
jurisdiction where it is not otherwise required to be so qualified, (ii) to
conform its capitalization or the composition of its assets at the time to the
securities or blue sky laws of such jurisdiction, (iii) to execute or file any
general consent to service of process under the laws of any jurisdiction, or
(iv) to subject itself to taxation in any jurisdiction where it has not
theretofore done so.
(f) Use its best efforts to (i) cause such Registrable Securities
covered by a Registration Statement to be listed on the principal exchange or
exchanges or qualified for trading on the principal over-the-counter market or
listed on the automated quotation market on which securities of the same class
and series as the Registrable Securities (or into which such Registrable
Securities will be or have been converted) are then listed, traded, or quoted
upon the sale of such Registrable Securities pursuant to such Registration
Statement and (ii) provide a transfer agent and registrar for such Registrable
Securities covered by such Registration Statement not later than the effective
date of such Registration Statement.
(g) Make and keep information publicly available relating to Charter
so as to satisfy the requirements of Rule 144 under the Securities Act (or any
successor or corresponding rule) and file with the SEC all reports and other
documents required of Charter under the Securities Act and the Exchange Act in a
timely manner.
(h) Make available to its security holders, as soon as reasonably
practicable, an earnings statement covering the period of at least twelve
months, but not more than eighteen months, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act (provided that
Charter shall not be deemed in violation of this paragraph so long as it files
customary quarterly reports with the SEC for such period), and not file any
amendment or supplement to such Registration Statement or Prospectus to which
any of the Selling Stockholders shall have reasonably objected on the grounds
that such amendment or supplement does not comply in all material respects with
the requirements of the Securities Act.
(i) Use its best efforts to cause such Registrable Securities
covered by such Registration Statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof to consummate the disposition of such Registrable
Securities.
(j) Cooperate with the Selling Stockholders to facilitate the timely
preparation and delivery of certificates (not bearing any restrictive legends)
representing securities to be sold under the Registration Statement, and enable
such securities to be in such denominations and registered in such names as such
Selling Stockholder may request.
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51
(k) Cooperate with each Selling Stockholder in the disposition of
such Registrable Securities and their respective counsel in connection with any
filings required to be made with the NASD.
3.2 Selling Stockholders' Obligations. Charter's obligations under this
Agreement to a Selling Stockholder shall be conditioned upon such Selling
Stockholder's compliance with the following:
(a) Such Selling Stockholder shall cooperate with Charter in
connection with the preparation of the Registration Statement, and for so long
as Charter is obligated to keep the Registration Statement effective, such
Selling Stockholder will provide to Charter, in writing, for use in the
Registration Statement, all information regarding such Selling Stockholder, its
intended method of disposition of the applicable Registrable Securities, and
such other information as Charter may reasonably request to prepare the
Registration Statement and Prospectus covering the Registrable Securities and to
maintain the currency and effectiveness thereof.
(b) Such Selling Stockholder agrees that, upon receipt of any notice
from Charter of the happening of any event of the kind described in Section
3.1(c), such Selling Stockholder will discontinue its offering and sale of
Registrable Securities pursuant to the applicable Registration Statement until
such Selling Stockholder's receipt of either (i) notice from Charter that a
Material Event no longer exists (but for no longer than the end of the 120-day
period described in Section 2.3) or (ii) the copies of the supplemented or
amended Prospectus contemplated by Section 3.1(c), and, in either case, if so
directed by Charter, such Stockholder will deliver to Charter all copies in its
possession of the most recent Prospectus covering such Registrable Securities at
the time of receipt of such notice. In the event Charter shall give any such
notice, the period mentioned in clause (ii) of Section 2.4 shall be extended by
the number of days during the period from and including the date of the giving
of such notice pursuant to Section 3.1(c) and including the date when each
seller of Registrable Securities covered by such Registration Statement shall
have received the copies of the supplemented or amended prospectus contemplated
by Section 3.1(c).
(c) Such Selling Stockholder agrees that, with respect to the
Registrable Securities, such Stockholder will not take any action (or agree to
take any action) that would reasonably be expected to toll or otherwise lengthen
the holding period under Rule 144(d) and Rule 144(k) under the Securities Act
(or any successor rule or provision).
4. Expenses of Registration.
4.1 Registration Expenses. Except as provided in Section 4.2 and
Section 4.3, all Registration Expenses incurred in connection with the
registration under Section 2.1 and and the distribution of any Registrable
Securities in connection therewith shall be borne by Charter. For purposes of
this Agreement, the term "Registration Expenses" means all:
(a) registration, application, filing, listing, transfer, and
registrar fees,
(b) NASD fees and fees and expenses of registration or
qualification of Registrable Securities under state securities or blue sky laws
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(c) printing expenses (or comparable duplication expenses),
delivery charges, and escrow fees,
(d) fees and disbursements of counsel for Charter,
(e) fees and expenses for independent certified public
accountants retained by Charter (including the expenses of any comfort letters
or costs associated with the delivery by independent certified public
accountants of a comfort letter or comfort letters),
(f) fees and expenses of any special experts retained by Charter
in connection with such registration;
(g) reasonable fees and disbursements of underwriters and
broker-dealers customarily paid by issuers or sellers of securities, and
(h) fees and expenses of listing the Registrable Securities on a
securities exchange or over-the-counter market; and
(i) all fees and disbursements of one counsel for all such
Selling Stockholders as a group attributable to the registration and sale of the
Registrable Securities of such Selling Stockholders included in such
registration.
4.2 Selling Stockholder Expenses. Each Selling Stockholder shall pay
all stock transfer fees or expenses (including the cost of all transfer tax
stamps), if any, all underwriting or brokerage discounts and commissions and all
fees and disbursements of counsel for such Selling Stockholder (other than the
one counsel described in Section 4.1(i)) attributable to the distribution of the
Registrable Securities of such Selling Stockholder included in such
registration.
4.3 Internal Expenses of Charter. Notwithstanding any other
provision of this Agreement, Charter shall be obligated to bear all internal
expenses of Charter in connection with the registration under Section 2.1
(including all salaries and expenses of its officers and employees performing
accounting and legal functions and related expenses).
5. Indemnification.
5.1 By Charter. Charter agrees to indemnify and hold harmless each
Stockholder Indemnified Party from and against any Losses, joint or several, to
which such Stockholder Indemnified Party may become subject under the Securities
Act, the Exchange Act, state securities or blue sky laws, common law or
otherwise, insofar as such Losses (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of a material
fact contained in the applicable Registration Statement or Prospectus, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and Charter will
reimburse each such Stockholder Indemnified Party for any reasonable fees and
expenses of outside legal counsel for such Stockholder Indemnified Parties, or
other expenses reasonably incurred by them, as incurred, in connection with
investigating or defending any such claims; provided, however, that Charter will
not indemnify
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or hold harmless any Stockholder Indemnified Party from or against any such
Losses (including any related expenses) to the extent such Losses (including any
related expenses) result from an untrue statement, omission or allegation
thereof which were (a) made in reliance upon and in conformity with written
information provided by or on behalf of the applicable Selling Stockholder
specifically and expressly for use or inclusion in the applicable Registration
Statement or Prospectus or (b) made in any Prospectus used after such time as
Charter advised such Selling Stockholder that the filing of a post-effective
amendment or supplement thereto was required, except that this proviso shall not
apply if the untrue statement, omission, or allegation thereof is contained in
the Prospectus as so amended or supplemented. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
the Stockholder Indemnified Parties and shall survive the transfer of such
securities by the Selling Stockholders.
5.2 By Selling Stockholders. Each Selling Stockholder, individually
and not jointly, agrees to indemnify and hold harmless each Charter Indemnified
Party and each other Stockholder Indemnified Party from and against any Losses,
joint or several, to which such Charter Indemnified Party or any other
Stockholder Indemnified Party may become subject, insofar as such Losses (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the applicable
Registration Statement or the Prospectus, or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, if the statement or omission was made in reliance upon and
in conformity with written information provided by or on behalf of such Selling
Stockholder or any Person who controls such Selling Stockholder specifically and
expressly for use or inclusion in the applicable Registration Statement or
Prospectus; provided, however, that such Selling Stockholder will not indemnify
or hold harmless any Charter Indemnified Party or other Stockholder Indemnified
Party from or against any such Losses (including any related expenses) (a) to
the extent the untrue statement, omission, or allegation thereof upon which such
Losses (including any related expenses) are based was made in any Prospectus
used after such time as such Selling Stockholder advised Charter that the filing
of a post-effective amendment or supplement thereto was required, except the
Prospectus as so amended or supplemented, or (b) in an amount that exceeds the
net proceeds received by such Selling Stockholder from the sale of Registrable
Securities pursuant to such Registration Statement. Such indemnity shall remain
in full force and effect regardless of any investigation by or on behalf of
Charter Indemnified Parties or the Stockholder Indemnified Parties, and shall
survive the transfer of such securities by the Selling Stockholder.
5.3 Procedures. Each Indemnified Party shall give notice to each
Indemnifying Party promptly after such Indemnified Party has actual knowledge of
any claim as to which indemnity may be sought, and the Indemnifying Party may
participate at its own expense in the defense, or if it so elects, assume the
defense of any such claim and any action or proceeding resulting therefrom,
including the employment of counsel and the payment of all expenses; provided
that such counsel shall be reasonably satisfactory to the Indemnified Party. The
failure of any Indemnified Party to give notice as provided in this Section 5.3
shall not relieve the Indemnifying Party from its obligations to indemnify such
Indemnified Party, except to the extent the Indemnified Party's failure to so
notify actually prejudices the Indemnifying Party's ability to defend against
such claim, action, or proceeding. If the Indemnifying Party
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54
elects to assume the defense in any action or proceeding, an Indemnified Party
shall have the right to employ separate counsel in such action or proceeding and
to participate in the defense thereof, but such Indemnified Party shall pay the
fees and expenses of such separate counsel unless (a) the Indemnifying Party has
agreed to pay such fees and expenses, or (b) the named parties to any such
action or proceeding (including any impleaded parties) include such Indemnified
Party and the Indemnifying Party, and such Indemnified Party shall have been
advised by counsel that there is or would be a conflict of interest between such
Indemnified Party and the Indemnifying Party in the conduct of the defense of
such action (in which case, if such Indemnified Party notifies the Indemnifying
Party in writing that it elects to employ separate counsel at the expense of the
Indemnifying Party, the Indemnifying Party shall not assume the defense of such
action or proceeding on such Indemnified Party's behalf) or (c) the Indemnifying
Party shall not have employed counsel reasonably satisfactory to the Indemnified
Party to represent the Indemnified Party within a reasonable time after notice
of the institution of such claim. No Indemnifying Party, in the defense of any
such claim or litigation, shall, except with the consent of the Indemnified
Party (which consent will not be unreasonably withheld), consent to entry of any
judgment, or enter into any settlement that does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect to such claim or litigation.
5.4 Contribution. If the indemnification provided for under this
Section 5 is unavailable to or insufficient to hold the Indemnified Party
harmless under Section 5.1 or Section 5.2 above in respect of any Losses
referred to therein for any reason other than as specified therein, then the
Indemnifying Party shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Losses in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party, on the one
hand, and such Indemnified Party, on the other, in connection with the
statements or omissions that resulted in such Losses. The relative fault of each
Indemnifying Party or Indemnified Party, as the case may be, shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by (or that was failed to be
supplied by) such Indemnifying Party or Indemnified Party, such party's relative
intent, knowledge, access to information, and opportunity to correct or prevent
such statement or omission. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
5.5 Other Indemnification. Indemnification similar to that specified
in the preceding provisions of Section 5 (with any necessary changes thereto
having been made in order to effectuate the general intent thereof) shall be
given by Charter and each seller of Registrable Securities to the applicable
Indemnified Parties with respect to any required registration or other
qualification of securities under any federal or state law or regulation or
governmental authority other than the Securities Act.
6. Miscellaneous.
6.1 Notices.
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(a) All notices, requests, demands, waivers, and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given if delivered personally, mailed, certified or registered
mail with postage prepaid, or sent by reliable overnight courier, or facsimile
transmission, to the address or facsimile number specified for the applicable
party on Schedule A attached to this Agreement, or to such other Person,
address, or facsimile number as any party shall specify by notice in writing to
the other parties.
(b) Any notice or other communication to a party in accordance
with the provisions of this Agreement shall be deemed to have been given (i)
three Business Days after it is sent by certified or registered mail, postage
prepaid, return receipt requested, (ii) upon receipt when delivered by hand or
transmitted by facsimile (confirmation received), or (iii) one Business Day
after it is sent by a reliable overnight courier service, with acknowledgment of
receipt requested. Notwithstanding the preceding sentence, notice of change of
address shall be effective only upon actual receipt thereof.
6.2 Amendment. This Agreement may not be modified or amended except
by an instrument in writing signed by Charter and a majority-in-interest
(measured by Registrable Securities) of the Stockholders (except to the extent
such amendment would have an adverse and discriminatory impact on any
Stockholder, in which event such Amendment shall only be binding on such
Stockholder if such Stockholder has executed such amendment). No consent,
waiver, or similar act shall be effective unless in writing.
6.3 Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto and supersedes all prior agreements and
understandings, oral and written, among the parties hereto with respect to the
subject matter hereof.
6.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
6.5 Governing Law. This Agreement shall be governed by and
interpreted in accordance with the internal laws of the State of New York,
without giving effect to principles of conflicts of laws.
6.6 Remedies. In the event of CCI's breach or other failure to
perform under this Agreement, each Holder agrees that the sole and exclusive
remedy for such breach shall be under such Holder's Registration Support Put;
provided, however, that if Xxxx X. Xxxxx breaches a Holder's Registration
Support by failing to purchase securities that he would otherwise be obligated
to purchase under the terms thereof, and such holder's damages are not satisfied
pursuant to the Letter of Credit and/or Collateral provided under the
Contribution Agreement, then this Section 6.6 shall not limit such Holder's
remedies against CCI in the event CCI breaches the terms of this Agreement.
6.7 Assignment.
(a) Except as expressly provided in this Section 6.7, the rights
of the parties hereto cannot be transferred or assigned and any purported
assignment or transfer to the contrary shall be void ab initio. Any Stockholder
may transfer any of its rights under this
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Agreement, without the consent of Charter, to any Person to whom such holder
transfers any Registrable Securities or any rights to acquire Registrable
Securities, whether such transfer is by sale, gift, assignment, pledge, or
otherwise, so long as the terms of this Section 6.7 are followed, and so long as
(x) such transfer is not made pursuant to an effective Registration Statement or
pursuant to Rule 144 or Rule 145 (or any successor provisions) under the
Securities Act or in any other manner the effect of which is to cause the
transferred securities to be freely transferable without regard to the volume
and manner of sale limitations set forth in Rule 144 (or any successor
provision) in the hands of the transferee as of the date of such transfer; and
(y) such transfer is made to a Permitted Transferee.
(b) Notwithstanding Section 6.7(a), no Stockholder may assign any
of its rights under this Agreement to any Person to whom such Stockholder
transfers any Registrable Securities unless the transfer of such Registrable
Securities did not require registration under the Securities Act.
(c) The nature and extent of any rights assigned shall be as
agreed to between the assigning party and the assignee. No Person may be
assigned any rights under this Agreement unless Charter is given written notice
by the assigning party at the time of such assignment stating the name and
address of the assignee, identifying the securities of Charter as to which the
rights in question are being assigned, and providing a detailed description of
the nature and extent of the rights that are being assigned. Any assignee
hereunder shall receive such assigned rights subject to all the terms and
conditions of this Agreement, including the provisions of this Section 6.7.
Subject to the foregoing, this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
6.8 Binding Agreement; No Third Party Beneficiaries. This Agreement
will be binding upon and inure to the benefit of the parties hereto and their
successors and permitted assigns. Except as set forth herein and by operation of
law, no party to this Agreement may assign or delegate all or any portion of its
rights, obligations, or liabilities under this Agreement without the prior
written consent of each other party to this Agreement.
[Signature page follows.]
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IN WITNESS WHEREOF, Charter and each of the other parties hereto has
executed this Agreement as of the date first above written.
CHARTER COMMUNICATIONS, INC.
By:________________________
Name:
Title:
[SIGNATURES CONTINUE ON FOLLOWING PAGES]
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58
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
ACCEPTED AND AGREED:
INTERLINK INVESTMENT CORP.
By:_____________________________________
A. Xxxxx X. Xxxxx, Vice President
XXXXXX & ASSOCIATES, INC.
By:_____________________________________
Xxxxxx X. Xxxxxx, Chairman of the Board
XXXXXX FAMILY INVESTMENT COMPANY, L.L.L.P.
By: Its General Partners
__________________________________
Xxxxxx X. Xxxxxx, General Partner
__________________________________
Xxxxxx X. Xxxxxx, General Partner
__________________________________
Xxxxx X. Xxxxxx, General Partner
__________________________________
Xxxx X. Xxxxxx, General Partner
XXXXXX CHILDREN'S TRUST
By:_____________________________________
Xxxxxx X. Xxxxxx, Co-Trustee
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59
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
XXXXXX CHILDREN TRUST-II
By:_____________________________________
Xxxxxx X. Xxxxxx, Co-Trustee
XXXXXX CHILDREN'S TRUST III
By:_____________________________________
Xxxxxx X. Xxxxxx, Co-Trustee
360 GROUP, INC.
By:_____________________________________
Xxxx X. Xxxxxx, Treasurer
XXXXXX CHILDREN TRUST
By:_____________________________________
Xxxxxxx X. Xxxxxx, III, Trustee
CRM II LIMITED PARTNERSHIP, LLLP
By:_____________________________________
Xxxxxxx X. Xxxxxx, General Partner
INDIANA CABLEVISION MANAGEMENT CORP.
By:_____________________________________
Xxxxxx X. Xxxxxx, President
________________________________________
XXXXXX X. XXXXXX
________________________________________
XXXXX X. XXXXX
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[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
________________________________________
XXXXXXX X. XXXXXX
________________________________________
XXXXXXX X. XXXXXXX
________________________________________
XXXXX X. XXXXXX
________________________________________
XXXXX X. XXXXX
________________________________________
XXXX X. XXXXXX
________________________________________
XXXXXX X. XXXXXX
________________________________________
XXXX X. XXXXXX
________________________________________
XXXXXXX X. XXXX
________________________________________
XXXX X. XXXXXX
________________________________________
XXXXXXX X. XXXXXX, III
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61
SCHEDULE A
ADDRESSES
The 360 Group, Inc.
c/o Xxxxxx X. Xxxxxx
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Xxxxxx X. Xxxxxx
R & A Management, LLC
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Xxxxxx & Associates, Inc.
c/o Xxxxxx X. Xxxxxx
R & A Management, LLC
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Xxxxxx Children's Trust
c/o Xxxxxx X. Xxxxxx, Co-Trustee
R & A Management, LLC
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Xxxxxx Children Trust-II
c/o Xxxxxx X. Xxxxxx, Co-Trustee
R & A Management, LLC
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Xxxxxx Children's Trust-III
c/o Xxxxxx X. Xxxxxx, Co-Trustee
R & A Management, LLC
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Xxxxxx Family Investment Company, LLLP
c/o Xxxxxx X. Xxxxxx, General Partner
R & A Management, LLC
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Indiana Cablevision Management Corp.
c/o Xxxxxx X. Xxxxxx
R & A Management, LLC
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62
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Xxxxx X. Xxxxxx
R & A Management, LLC
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Xxxx Xxxxxx Xxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Xxxxxx X. Xxxxxx
Xxxxx & Xxxxxxxxx
000 X. 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Xxxxx X. Xxxxx
R & A Management, LLC
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Xxxxxxx X. Xxxxxx
R & A Management, LLC
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Xxxx X. Xxxxxx
R & A Management, LLC
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Xxxxxxx X. Xxxxxxx
R & A Management, LLC
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Xxxxx X. Xxxxx
R & A Management, LLC
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Xxxx Xxxxxx
R & A Management, LLC
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
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63
Xxxxxxx Xxxx
R & A Management, LLC
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Xxxxxxx X. Xxxxxx III
0000 Xxxxx Xx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
CRM II Limited Partnership, LLLP
c/o Xxxxxxx X. Xxxxxx III
0000 Xxxxx Xx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Xxxxxx Children's Trust
c/o Xxxxxxx X. Xxxxxx III
0000 Xxxxx Xx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
InterLink Investment Corp.
c/o Xxxxx X. Xxxxx
R & A Management, LLC
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
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