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EXHIBIT 2.7(h)
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT is made 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 hereto (the "INVESTORS"); with respect to Sections 3.1, 3.2, 3.3 and 3.4
only, Charter Communications, Inc. ("CCI"); and with respect to Sections
3.5.1(a), 3.5.1(b) and 3.6.2 only, Xxxx X. Xxxxx ("XXXXX").
RECITALS
WHEREAS, Charter Investment, Inc. ("CII") and, by assignment, CCO, are
parties to (a) that certain Purchase and Sale Agreement with the Persons listed
on the signature pages thereto as "Sellers" and Xxxxxx Acquisition Partners,
L.L.L.P. ("RAP"), dated April 26, 1999, as amended (the "RAP Agreement"), and
(b) that certain Purchase and Sale Agreement with the Persons listed on the
signature pages thereto as "Sellers" and InterLink Communications Partners, LLLP
("InterLink"), dated April 26, 1999, as amended (the "InterLink Agreement" and,
together with the RAP Agreement, the "PURCHASE AGREEMENTS"), pursuant to which
CCO agreed to purchase, directly or indirectly, all of the outstanding interests
of RAP and InterLink;
WHEREAS, each of the Investors is a "Seller" under one or both of the
Purchase Agreements;
WHEREAS, by means of a letter agreement dated August 27, 1999 from CII
to each of the Investors (the "EQUITY LETTER"), CII offered to each of the
Investors the right to elect, in lieu of selling all of its interest in RAP and
or InterLink for cash, to contribute a portion of such interest to Charter
Holdco in exchange for preferred equity in Charter Holdco;
WHEREAS, each Investor has agreed to contribute to Charter Holdco the
percentage of its interest in RAP and/or InterLink set forth next to such
Investor's name on EXHIBIT A hereto (with respect to each such Investor, its
"CONTRIBUTED INTEREST") in exchange for the Issued Units;
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. "ACT" means the Securities Act of 1933, as amended.
1.2. "AGREEMENT" means this Contribution Agreement.
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1.3. "CLASS A PREFERRED CONTRIBUTED AMOUNT" has the meaning
given that term in the Operating Agreement.
1.4. "CLASS A PREFERRED RETURN AMOUNT" has the meaning given
that term in the Operating Agreement.
1.5. "CLASS A PREFERRED UNITS" has the meaning given that term
in the Operating Agreement.
1.6. "COMMON STOCK" means Class A Common Stock of CCI.
1.7. "IPO" means the initial public offering of Common Stock.
1.8. "ISSUED UNITS" means, with respect to an Investor, the
number of Class A Preferred Units set forth on EXHIBIT A and issued to such
Investor upon the contribution of the Contributed Interest in accordance with
Section 2.4.
1.9. "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.
1.10. "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. ASSIGNMENT; CONTRIBUTION AND ISSUANCE OF CLASS A PREFERRED UNITS.
2.1. Assignment. CII and CCO hereby assign to Charter Holdco
the right and obligation to acquire each Investor's Contributed Interest, and
Charter Holdco hereby accepts such assignment. Notwithstanding the foregoing,
CCO and CII shall continue to be and remain liable to the Investors for the
performance and fulfillment of all of CII's and CCO's covenants, duties and
obligations under the Purchase Agreements.
2.2. Approval of Assignment. Each Investor hereby consents to
the foregoing assignment to Charter Holdco.
2.3. Issuance of Units. Each Investor hereby subscribes for,
and Charter Holdco agrees to issue to it, a number of Class A Preferred Units
equal to such Investor's Issued Units. Evidence of such Issued Units shall be
delivered to such Investor, in the form of an executed Operating Agreement
reflecting such Issued Units, concurrently with the contributions to be made by
such Investor described in Section 2.4.
2.4. Contributions to Capital. As consideration for the
issuance of the Issued Units to it by Charter Holdco, each Investor shall at the
Closing contribute to Charter Holdco the Contributed Interest.
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 the IPO, in the following manner:
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3.1.1 At the time the preliminary prospectus is circulated to
prospective buyers in the IPO, CCI will prepare and file a preliminary
prospectus in connection with the exchange described above. CCI will deliver to
the Disbursement Agent (as such term is defined in the Purchase Agreements) a
copy of the preliminary prospectus describing the exchange for each Investor,
and the Disbursement Agent will deliver a copy of such prospectus to each
Investor.
3.1.2 Within seven days thereafter, the Disbursement Agent
shall deliver a notice to CCI stating the number of Issued Units, if any, that
each Investor intends in good faith to exchange into shares of Common Stock at
the price offered to the public in the IPO. 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. Upon delivery of
final prospectuses to the Disbursement Agent, the Disbursement Agent shall
deliver a prospectus to each Investor and shall deliver a binding notice to CCI
confirming the number of Issued Units, if any, that each Investor commits to
exchange into shares of Common Stock at the price offered to the public in the
IPO (the "EXCHANGED UNITS"). Each Investor electing to exchange Issued Units for
Common Stock will, upon delivery of the confirmation notice, execute and deliver
(a) an assignment effecting the exchange, in form and substance reasonably
agreed to by CCI and the Disbursement Agent prior to the exchange, and (b) a
Contribution Agreement in the form attached hereto as EXHIBIT C. 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
appropriate Put Agreements as provided herein.
3.2. Valuation of Exchanged Units and CCI Common Stock.
Exchanged Units will be exchanged for shares of Common Stock valued at the price
to the public in the IPO. Exchanged Units will 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.
3.3. Lockup Agreement. Investors receiving shares of Common
Stock in exchange for Exchanged Units 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. Put Rights.
3.5.1 Charter Put; Xxxxx Put; Lockup Put. The Charter Put (as
defined in Section 5) entered into at the Closing will not apply as to any
Common Stock received in exchange for Issued Units. Investors electing to
receive Common Stock will, as to such shares of Common Stock, receive either the
Xxxxx Put or Lockup Put defined below, as follows:
(a) If no more than $13.5 million of the aggregate
Issued Units issued to all Investors at the closing of the transactions
contemplated by the Purchase Agreements will remain outstanding upon the IPO
(excluding all Exchanged Units), then Xxxxx will deliver a put
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agreement in the form attached hereto as EXHIBIT E (the "Xxxxx Put") to each
Investor that elects to exchange all of its Issued Units into Common Stock
(treating Investors that are under common control with the same Person as being
one Investor for purposes of determining whether such Investor has elected to
exchange "all" of its Issued Units).
(b) All Investors that exchange Issued Units for
Common Stock, but do not receive the Xxxxx Put described above, will enter into
a put agreement with Xxxxx in the form attached hereto as EXHIBIT F (the "Lockup
Put").
3.6. 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:
3.6.1 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
3.6.2 Xxxxx shall enter into an agreement with the Investors
giving them substantially the same rights set forth in Sections 3.5.1(a) and
3.5.1(b) (with the Xxxxx Put and Lockup Put being applicable to common stock of
such affiliate received by Investors in the initial public offering of such
affiliate).
4. REPRESENTATIONS AND WARRANTIES.
4.1. Representations and Warranties of Charter Holdco. Charter
Holdco hereby represents and warrants to each Investor 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 Charter
Holdco, (iii) this Agreement has been duly and validly executed and delivered by
Charter Holdco and is a valid and binding agreement of Charter Holdco,
enforceable against Charter Holdco 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.
4.2. Representations and Warranties of CCI. CCI hereby
represents and warrants to each Investor that, with respect to its obligations
under Sections 3.1, 3.2, 3.3 and 3.4: (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
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
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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.
4.3. Investor's Representations and Warranties. Each Investor
hereby represents and warrants to Charter Holdco as follows:
4.3.1 Investor 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 Investor and
is a valid and binding agreement of Investor, 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.
4.3.2 Investor, either alone or together with a Purchaser
Representative (which Purchaser Representative has completed and delivered to
CII a completed "Purchaser Representative Questionnaire" delivered to each
Investor in the Equity Letter), is an "accredited investor" as defined in
Securities and Exchange Commission ("SEC") Rule 501(a) and has completed and
delivered to CII an "Investor Questionnaire" (previously provided to Investor in
the Equity Letter).
4.3.3 If Investor is a corporation, partnership, trust or
other entity, Investor was not organized for the specific purpose of acquiring
the Securities.
4.3.4 Investor has received and reviewed all information
Investor considers necessary or appropriate for deciding whether to invest in
the Issued Units. Investor further represents that Investor 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 Issued Units and regarding the business, financial affairs and
other aspects of Charter Holdco 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 Investor
deems necessary to evaluate the investment and to verify the accuracy of
information otherwise provided to Investor.
4.3.5 Investor acknowledges that the Issued Units or other
exchange rights that are a part of the Issued Units have 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 Investor for investment purposes for Investor's own account only and
not for sale or with a view to distribution of all or any part of such Issued
Units. No other person will have any direct or indirect beneficial interest in
the Issued Units.
4.3.6 Investor understands that the Issued Units are and will
be "restricted securities" under the federal securities laws in that such
securities will be acquired from Charter Holdco 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.
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5. CLOSING; CLOSING CONDITIONS.
The closing of the transactions contemplated by this Agreement (the
"CLOSING") shall occur at 10:00 a.m., Mountain Time, at the offices of Xxxxx &
Xxxxxxxxx LLP in Denver, Colorado, on September 14, 1999, unless another date,
time or place is agreed to in writing by R&A Management LLC (acting as agent for
Investors under the terms of the Purchase Agreements) and Charter Holdco. At the
Closing, each Investor shall (a) contribute to Charter Holdco the Contributed
Interest, (b) deliver or cause to be delivered to Charter Holdco or its designee
one or more certificates evidencing the Contributed Interests to be contributed
at such Closing (if such interests are certificated), together with duly
executed assignments separate from the certificate in a form reasonably
satisfactory to Charter Holdco to effectuate the transfer of such Contributed
Interest to Charter Holdco or its designee, (c) execute the Joinder Agreement in
the form attached hereto as EXHIBIT B, by which such Investor shall become a
party to the Operating Agreement, and (d) countersign the Charter Put (defined
below). At the Closing, Charter Holdco shall (a) deliver to each Investor an
executed Operating Agreement evidencing the Issued Units, and (b) execute and
deliver a Put Agreement, in the form attached hereto as EXHIBIT D (the "CHARTER
PUT").
6. GENERAL PROVISIONS.
6.1. 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 Investor:
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 Charter Holdco, CCO or CCI:
Charter Communications, Inc.
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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.
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
6.2. 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.
6.3. Assignment. None of the parties may assign their rights
or obligations under this Agreement without the prior written consent of the
other parties; provided, however, that any Investor may assign its rights under
Section 3 hereof to any Permitted Transferee. This Agreement shall be binding on
and inure to the benefit of the parties and their respective successors and
permitted assigns. A "PERMITTED TRANSFEREE" shall mean any transferee of such
Investor's Issued Interests that is:
6.3.1 another Investor hereunder;
6.3.2 any Person that, directly or indirectly, through the
ownership of voting securities, controls, is
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controlled by, or is commonly controlled with the Investor;
6.3.3 a trust for the benefit of the equity owners of the
Investor and of which the trustee or trustees are one or more Persons that
either control, or are commonly controlled with, the Investor or are banks,
trust companies, or similar entities;
6.3.4 any Person for which the Investor is acting as nominee
or any trust controlled by or under common control with such person or entity;
or
6.3.5 if the Investor is an individual, any charitable
foundation, charitable trust, or similar entity, the estate, heirs, or legatees
of the Investor upon the Investor's death, any member of the Investor's family,
any trust or similar entity for the benefit of the Investor or one or more
members of the Investor's family, or any entity controlled by the Investor or
one or more members of the Investor's family.
6.4. No Third-Party Benefits. None of the provisions of this
Agreement are intended to benefit, or to be enforceable by, any third-party
beneficiaries.
6.5. 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.
6.6. Amendment and Waiver. This Agreement may not be modified
or amended except by an instrument in writing signed by CII and a
majority-in-interest (measured by Issued Units) of the Investors (except to the
extent such amendment would have an adverse and discriminatory impact on any
Investor, in which event such Amendment shall only be binding on such Investor
if such Investor has executed such amendment). No waiver of any provision of
this Agreement or of any rights or obligations of any party under this 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.
6.7. 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.
6.8. 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.
6.9. 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.
6.10. 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
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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 OPERATING,
LLC
By: /s/ Xxxxxx X. Xxxx
_______________________________
Name: Xxxxxx X. Xxxx
Title:
CHARTER COMMUNICATIONS HOLDING
COMPANY, LLC
By: /s/ Xxxxxx X. Xxxx
_______________________________
Name: Xxxxxx X. Xxxx
Title:
WITH RESPECT TO SECTIONS 3.1, 3.2,
3.3 AND 3.4 ONLY:
CHARTER INVESTMENT, INC
By: /s/ Xxxxxx X. Xxxx
_______________________________
Name: Xxxxxx X. Xxxx
Title:
WITH RESPECT TO SECTIONS 3.5.1(a),
3.5.1(b) AND 3.6.2 ONLY:
/s/ Xxxx X. Xxxxx by Xxxxxxx X. Xxxxx
_____________________________________
Xxxx X. Xxxxx, by Xxxxxxx X. Xxxxx,
his attorney-in-fact
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Signature Page to Contribution Agreement
INTERLINK INVESTMENT CORP.
By: /s/ Xxxxx X. Xxxxx
------------------------------
Xxxxx X. Xxxxx, Vice President
XXXXXX & ASSOCIATES, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Xxxxxx X. Xxxxxx, Chairman of
the Board
XXXXXX FAMILY INVESTMENT COMPANY,
L.L.L.P.
By: Its General Partners
/s/ Xxxxxx X. Xxxxxx
----------------------------------
Xxxxxx X. Xxxxxx, General Partner
/s/ Xxxxxx X. Xxxxxx
----------------------------------
Xxxxxx X. Xxxxxx, General Partner
/s/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx, General Partner
/s/ Xxxx X. Xxxxxx
----------------------------------
Xxxx X. Xxxxxx, General Partner
XXXXXX CHILDREN'S TRUST
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Xxxxxx X. Xxxxxx, Co-Trustee
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Signature Page to Contribution Agreement
XXXXXX CHILDREN TRUST-II
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Xxxxxx X. Xxxxxx, Co-Trustee
XXXXXX CHILDREN'S TRUST III
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx, Co-Trustee
360 GROUP, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Xxxx X. Xxxxxx, Treasurer
XXXXXX CHILDREN TRUST
By: /s/ Xxxxxxx X. Xxxxxx, III
--------------------------------
Xxxxxxx X. Xxxxxx, III, Trustee
CRM II LIMITED PARTNERSHIP, LLLP
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Xxxxxxx X. Xxxxxx, General
Partner
INDIANA CABLEVISION MANAGEMENT
CORP.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx, President
/s/ Xxxxxx X. Xxxxxx
----------------------------------
XXXXXX X. XXXXXX
/s/ Xxxxx X. Xxxxx
----------------------------------
XXXXX X. XXXXX
13
Signature Page to Contribution Agreement
/s/ Xxxxxxx X. Xxxxxx
-------------------------------
XXXXXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------
XXXXXXX X. XXXXXXX
/s/ Xxxxx X. Xxxxxx
-------------------------------
XXXXX X. XXXXXX
/s/ Xxxxx X. Xxxxx
-------------------------------
XXXXX X. XXXXX
/s/ Xxxx X. Xxxxxx
-------------------------------
XXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
-------------------------------
XXXXXX X. XXXXXX
/s/ Xxxx X. Xxxxxx
-------------------------------
XXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxx
-------------------------------
XXXXXXX X. XXXX
/s/ Xxxx X. Xxxxxx
-------------------------------
XXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxxx, III
-------------------------------
XXXXXXX X. XXXXXX, III
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EXHIBIT A
TO
CONTRIBUTION AGREEMENT
INVESTOR CONTRIBUTED INTERESTS AND ISSUED UNITS
Exhibit A has been omitted from this exhibit. The issuer agrees to provide
copies of such exhibit to the Commission upon request.
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EXHIBIT B
TO
CONTRIBUTION AGREEMENT
FORM OF JOINDER AGREEMENT
The undersigned (the "NEW MEMBER"), having received a membership
interest (the "MEMBERSHIP INTEREST") in Charter Communications Holding Company,
LLC (the "COMPANY") pursuant to a Contribution Agreement, dated as of September
14, 1999, by and among the Company, certain affiliates of the Company and the
undersigned, hereby agrees to be bound by the terms and conditions of that
certain Amended and Restated Limited Liability Company Agreement of the Company
effective as of _________, 1999, as amended or supplemented from time to time,
attached hereto as EXHIBIT A (the "JOINED AGREEMENT"), and further covenants,
represents and warrants to the Company as follows:
The New Member agrees to be bound by the provisions of the Joined
Agreement, with respect to his or her ownership of the Membership Interest.
The New Member represents, warrants and agrees that the New Member is
acquiring the Membership Interest for investment purposes for such New Member's
own account only and not with a view to or for sale in connection with any
distribution of all or any part of the Membership Interest. No other person or
entity will have any direct or indirect beneficial interest in or right to the
Membership Interest.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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The New Member acknowledges that, in purchasing the Membership
Interest, he or she must bear the economic risk of the investment for an
indefinite period of time because the Membership Interest has not been
registered or qualified under applicable federal and state securities laws and
therefore cannot be sold unless it is subsequently registered and/or qualified
under such securities laws or an exemption from such registration or
qualification is available.
Signed as of ___________.
Name: ______________________________________________
Signature: ______________________________________________
Address: ______________________________________________
______________________________________________
Fax No.: ______________________________________________
X-00
00
XXXXXXX X
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 a Contribution Agreement by and among Holder and
Charter Holdco, among others, dated as of September 14, 1999 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 price 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 price 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 hereto as EXHIBIT B (the "LOCKUP
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
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.
-C-20-
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3.2. Holder's Representations and Warranties. Holder hereby
represents and warrants to CCI as follows: (a) Holder has received and read a
copy of the final prospectus describing the exchange of the Contributed Units
for Common Stock and the business and finances of CCI; (b) Holder has the full
power and authority to execute and deliver this Agreement and consummate the
transactions contemplated hereby; (c) this Agreement has been duly and validly
executed and delivered by Holder and is a legal, valid and binding obligation of
the Holder, enforceable against the Holder in accordance with its terms (except
as (i) such enforcement may be subject to bankruptcy, insolvency or similar laws
now or hereafter in effect relating to creditors rights generally and (ii) 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); (d) 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; and (e) 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 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 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,
and (d) countersign the Xxxxx Put or Lockup Put (as required by and defined in
the First Contribution Agreement). At the Closing, CCI 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:
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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.
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
-C-22-
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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 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
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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 D
TO
CONTRIBUTION AGREEMENT
FORM OF REDEMPTION AND PUT AGREEMENT
("CHARTER PUT")
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REDEMPTION AND PUT AGREEMENT
This Redemption and Put Agreement ("Agreement") is made as of
September 14, 1999, by and among Charter Communications Holding Company, LLC, a
Delaware limited liability company ("Charter LLC"), Xxxx X. Xxxxx, an individual
("Xxxxx") and ______________ ("Holder"), with reference to the following facts:
A Charter Communications Operating, LLC ("CCO"), a subsidiary of Charter
LLC, 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 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 Class A Preferred Units of Charter LLC (the "Issued Units").
C As an inducement for Holder to contribute its interests in RAP and/or
InterLink to CCO in consideration of the Issued Units, Charter LLC agreed to
grant the Holder the Redemption Election provided for herein and Xxxxx agreed to
grant the Holder the Put Option provided for herein.
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:
1.1. "Class A Preferred Contributed Amount" has the meaning given
that term in the Operating Agreement.
1.2. "Class A Preferred Return Amount" has the meaning given that
term in the Operating Agreement.
1.3. "Class A Preferred Units" has the meaning given that term in
the Operating Agreement.
1.4. "Closing Date" has the meaning given that term in the Purchase
Agreements.
1.5. "Interest Payment" means interest on the Redemption Purchase
Price or Put Purchase Price, as applicable, at a rate equal to eight percent
(8%) per annum, from and including the first day of the calendar quarter
following the date on which a Charter Notice was delivered, through and
including the date of such Redemption Closing or Put Closing.
1.6. "Minimum Amount" means the lesser of (i) Issued Units for which
the Redemption Purchase Price
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under this Agreement is at least $1,000,000, or (ii) all Issued Units that are
subject to the Holder's Redemption Election under this Agreement.
1.7. "Operating Agreement" means that certain Amended and Restated
Limited Liability Company Agreement of Charter LLC effective as of September 14,
1999 as amended from time to time.
2. Redemption Election.
2.1. Charter LLC hereby grants to the Holder the right and option
(the "Redemption Election"), exercisable from the date hereof through and
including the date of termination of the Redemption Election under Section 9 by
written notice delivered to Charter LLC and Xxxxx (the "Charter Notice"), to
sell and to permit any of the Holder's Permitted Transferees (as defined below)
to sell to Charter LLC or its designee, from time to time, on one or more
occasions, all or any portion of the Issued Units held by the Holder and its
Permitted Transferees that represents at least the Minimum Amount. Upon the
delivery of the Charter Notice, Charter LLC shall be obligated to buy or to
cause its designee to buy and, subject to Section 8.3, 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 Issued Units held by the Holder
and its Permitted Transferees that is specified in the Charter Notice, at the
price and upon the terms and conditions specified in Section 3.
3. Redemption Purchase Price; Redemption Closing.
3.1. The purchase price to be paid upon any exercise of the
Redemption Election (the "Redemption Purchase Price") shall be the sum of (i)
the Class A Preferred Contributed Amount in respect of the Issued Units as to
which such Redemption Election has been exercised, and (ii) the Class A
Preferred Return Amount in respect of such Class A Preferred Units.
3.2. At each closing of the purchase and sale of the Issued Units to
Charter LLC or its designee (the "Redemption Closing"), (a) Charter LLC or its
designee shall pay to the Holder (for itself and on behalf of its Permitted
Transferees, if applicable) the sum of the Redemption Purchase Price and the
Interest Payment, if any, in immediately available funds by wire transfer or
certified bank check; and (b) the Holder shall deliver or cause to be delivered
to Charter LLC or its designee one or more certificates evidencing the Issued
Units to be purchased and sold at such Redemption Closing (if certificates
representing such Issued Units have been issued), together with duly executed
assignments separate from the certificate in form and substance reasonably
acceptable to Charter LLC to effectuate the transfer of such Issued Units to
Charter LLC or its designee, together with a certificate of the Holder and its
Permitted Transferee, if applicable, reaffirming the representations in Section
5.
3.3. Each Redemption Closing shall be held at the offices of Irell &
Xxxxxxx in Los Angeles, California, on (or before if Charter LLC so determines)
the last day of the calendar quarter following the date on which Holder delivers
the Charter Notice, or if the Charter Notice is delivered fewer than fifteen
(15) calendar days prior to the end of the calendar quarter, then on the
fifteenth day of the next calendar quarter (but effective as of the end of the
calendar
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quarter in which such Charter Notice was delivered), or at such other time and
place as the Holder and Charter LLC may mutually agree. If the Redemption
Closing occurs after the end of the calendar quarter in which such Charter
Notice was delivered, then at the Redemption Closing, in addition to the
Redemption Purchase Price, Charter LLC shall pay to Holder the Interest Payment.
The Holder and Charter LLC will cooperate so as to permit all documents required
to be delivered at the Redemption Closing to be delivered by mail, delivery
service or courier without requiring either party or its representatives to be
physically present at the Redemption Closing.
4. Put Option if Redemption Failure; Put Closing.
4.1. In the event the Holder delivers a Charter Notice in accordance
with Section 2 and either (a) the Redemption Closing has not occurred by the
date specified in Section 3.3 (other than as a result of the Holder's delay or
Holder's material breach of this Agreement), or (b) Charter LLC or its designee
notifies the Holder that, for any reason (other than the Holder's material
breach of this Agreement), Charter LLC or its designee is unwilling or unable
(for legal or other reasons), to purchase any Issued Units as to which a
Redemption Election has been exercised (a "Redemption Failure"), then the Holder
shall have the right and option (the "Put Option"), to sell and to permit any of
the Holder's Permitted Transferees to sell (provided such Permitted Transferees
were specified in the Charter Notice associated with such Redemption Failure) to
Xxxxx or his designee, all or any portion of the Issued Units specified in such
Charter Notice that Charter LLC failed, or was unwilling or unable, to redeem
(the "Put-Eligible Units").
4.2. If a Redemption Failure occurs and the Holder wishes to
exercise its Put Option as to any Put-Eligible Units, then promptly after such
Redemption Failure, the Holder shall deliver a written notice to Xxxxx stating:
(i) that the Holder wishes to exercise its Put Option, (ii) the number of Issued
Units that are Put-Eligible Units, (iii) the number of Put-Eligible Units as to
which the Put Option is being exercised, and (iv) the date on which the
Redemption Closing was to have occurred (an "Xxxxx Notice"). If a Redemption
Failure has occurred, then upon delivery of such Xxxxx Notice, Xxxxx shall be
obligated to buy or to cause his designee to buy and, subject to Section 8.3,
the Holder and the Permitted Transferees identified in the Charter Notice and
Xxxxx Notice shall be obligated to sell, the amount of the Put-Eligible Units
held by the Holder and such Permitted Transferees, at the price and upon the
terms and conditions specified in Section 4.3.
4.3. The closing of the purchase and sale of the Put-Eligible Units
to Xxxxx (the "Put Closing") shall occur in accordance with the following:
(a) The purchase price to be paid upon any exercise of the Put
Option (the "Put Purchase Price") shall be the sum of (i) the Class A Preferred
Contributed Amount in respect of the Put-Eligible Units as to which such Put
Option has been exercised, and (ii) the Class A Preferred Return Amount in
respect of such Class A Preferred Units.
(b) At each Put Closing, (a) Xxxxx or his designee shall pay
to the Holder (for itself and on behalf of its Permitted Transferees, if
applicable) the sum of the Put Purchase Price and the Interest Payment, if any,
in immediately available funds by wire transfer or certified bank
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check; and (b) the Holder shall deliver or cause to be delivered to Xxxxx or his
designee one or more certificates evidencing the Put-Eligible Units to be
purchased and sold at such Put Closing, together with duly executed assignments
separate from the certificate in form and substance reasonably acceptable to
Xxxxx to effectuate the transfer of such Put-Eligible Units to Xxxxx or his
designee, together with a certificate of the Holder and its Permitted
Transferee, if applicable, reaffirming the representations in Section 5.
(c) The purchase and sale of Put-Eligible Units shall be
effective as of the last day of the calendar quarter following the date on which
the Holder delivers the Charter Notice; provided, however, that the Put Closing,
which shall be held at the offices of Irell & Xxxxxxx in Los Angeles,
California, shall occur on the later of (i) the date that the Redemption Closing
was to have occurred but for the Redemption Failure, and (ii) five (5) business
days after the date on which the Xxxxx Notice was delivered (or at such other
time and place as the Holder and Xxxxx may mutually agree). If the Put Closing
occurs after the end of the calendar quarter in which such Charter Notice was
delivered, then at the Put Closing, in addition to the Put Purchase Price, Allen
shall pay to Holder the Interest Payment. The Holder and Xxxxx will cooperate so
as to permit all documents required to be delivered at the Put Closing to be
delivered by mail, delivery service or courier without requiring either party or
its representatives to be physically present at the Put Closing.
5. Representations of the Holder. The Holder represents and warrants (x)
to Charter LLC and any of its designees or assignees that on the date hereof and
at each Redemption Closing, and (y) to Xxxxx and any of his designees or
assignees that on the date hereof and at each Put 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 Redemption Closing or Put Closing, as applicable the
Holder or one of its Permitted Transferees will own all of the Issued Units
required to be purchased and sold at such Redemption Closing or Put 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 Issued Units), other than
those arising under applicable law and those arising under the Operating
Agreement; (d) upon the transfer of the Issued Units pursuant to Section 3 or 4,
as applicable, Charter LLC or Xxxxx (or their respective designees, as
applicable) will receive good title to the Issued Units, 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 Operating
Agreement.
6. Representations of Charter LLC. Charter LLC represents and warrants to
the Holder and each Permitted Transferee that on the date hereof and at all
times hereafter through the Redemption Closing: (a) Charter LLC has full limited
liability company 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 Charter LLC, enforceable against
Charter LLC in accordance with its terms, except as the enforceability of this
Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or similar laws affecting creditors' rights generally or
by
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judicial discretion in the enforcement of equitable remedies; and (c) its
execution and delivery of this Agreement does not, and its performance of its
obligations under this Agreement will not, violate, conflict with or constitute
a breach of, or a default under, Charter LLC operating agreement, or any
material agreement, indenture or instrument to which it is a party or which is
binding on it, 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 its
ability to perform his obligations under this Agreement).
7. 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
similar 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.
8. Adjustment for Exchange, Reorganizations, Stock Splits, etc.
8.1. If the Class A Preferred Units are increased, decreased,
changed into, or exchanged for a different number or kind of shares or
securities of Charter LLC through reorganization, recapitalization,
reclassification, dividend, split or reverse split, or other similar
transaction, an appropriate adjustment shall be made with respect to number and
kind of shares or securities subject to the Redemption Election and Put Option,
without change in the total price applicable to the unexercised portion of the
Redemption Election and Put Option but with a corresponding adjustment in the
price for unit of any security covered by the Redemption Election and Put
Option. Any shares or securities that become subject to the Redemption Election
and Put Option pursuant to this Section 8.1 shall constitute "Issued Units" for
purposes of this Agreement.
8.2. Upon a reorganization, merger or consolidation of Charter LLC
with one or more other corporations or entities (any of the foregoing, a
"Business Combination") pursuant to which the outstanding Class A Preferred
Units are converted into or exchanged for any other security ("Replacement
Securities"), the Redemption Election and Put Option shall cease to
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be exercisable with respect to the securities that previously constituted
"Issued Units" 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 Issued Units pursuant to such Business Combination at a price per share
or unit of Replacement Securities equal to the aggregate Redemption Purchase
Price for all Issued Units immediately prior to such effectiveness divided by
the number of shares or units of Replacement Securities subject to the
Redemption Election immediately following such effectiveness. Any Replacement
Securities that become subject to the Redemption Election pursuant to this
Section 8.2 shall constitute "Issued Units" for purposes of this Agreement.
8.3. In the event of any proposed Business Combination pursuant to
which the outstanding Class A Preferred Units will be converted into a right to
receive consideration other than securities of Charter LLC or Replacement
Securities, (i) Charter LLC will provide notice thereof to the Holder at least
ten (10) days prior to consummation of such Business Combination and (ii) the
Redemption Election and Put Option will expire two days prior to such
consummation except with respect to any Issued Units that are specified in a
Charter Notice delivered by the Holder pursuant to Section 2 prior to such date.
If the Holder delivers a Charter Notice after its receipt of a notice from
Charter LLC pursuant to this Section 8.3, the purchase and sale of any of the
Issued Units specified in the Holder's notice may be conditioned at the Holder's
option on the consummation of the Business Combination described in Charter
LLC's notice pursuant to this Section 8.3.
9. Termination of Redemption Election and Put Option.
9.1. The Redemption Election and Put Option shall terminate on the
earliest of the following dates, except with respect to any Issued Units that
are specified in a Charter Notice delivered prior to such earliest date:
(a) five years from the Closing Date;
(b) the date on which the Issued Units are exchanged for
shares of common stock of Charter Communications, Inc. ("CCI") in connection
with CCI's initial public offering and pursuant to an agreement between Holder
and CCI; and
(c) the date specified in Section 8.3.
9.2. The Redemption Election and Put Option shall terminate as to
any Issued Units on the date on which such Issued Units are first transferred by
the Holder or any Permitted Transferee to a person or entity that is not a
"Permitted Transferee."
10. Miscellaneous.
10.1. 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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10.2. 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.
10.3. 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, to the address set forth on the signature page
hereto.
If to Charter LLC:
Charter Communications Holding Company, LLC
00000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
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
If to Xxxxx:
x/x Xxxxxx Xxxxxxxxx
000xx Xxxxxx X.X., Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
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
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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.
10.4. 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.
10.5. 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.
10.6. 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.
10.7. 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).
10.8. 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.
10.9. Assignments.
(a) The Holder and any Permitted Transferee may transfer some
or all of its Issued Units 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 that certain Contribution Agreement, dated as of September 14,
1999, among such Investors, Charter Communications Operating, LLC, Charter
Communications Holding Company, LLC, and Xxxx Xxxxx;
(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;
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34
(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) Charter LLC is entitled, in its sole discretion, to assign
its rights to purchase any Issued Units under this Agreement to one or more
entities controlled by Charter LLC, but no such assignment will relieve Charter
LLC of any of its obligations under this Agreement. Xxxxx is entitled, in his
sole discretion, to assign his rights to purchase any Issued Units 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.
10.10. 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.
10.11. 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.
10.12. 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.
10.13. 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.
10.14. 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 Issued
Units pursuant to this Agreement.
10.15. 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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[SIGNATURES BEGIN ON FOLLOWING PAGE]
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36
IN WITNESS WHEREOF, the parties hereto have executed this Redemption
and Put Agreement as of the date first set forth above.
CHARTER COMMUNICATIONS HOLDING COMPANY,
LLC
By:_______________________________________
Name:
Title:
__________________________________________
Xxxx X. Xxxxx, by Xxxxxxx X. Xxxxx,
attorney-in-fact
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[SIGNATURE PAGE TO REDEMPTION AND PUT AGREEMENT]
HOLDER
_________________________________________
[ADDRESS]
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38
EXHIBIT E
TO
CONTRIBUTION AGREEMENT
FORM OF PUT AGREEMENT
("XXXXX PUT")
-E-39-
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FORM OF [2-YEAR]
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 common
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
shares of CCI common stock are not listed on the Nasdaq National Market, the
average of
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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 7 of this Agreement.
"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 9 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 8.3, 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 7, 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 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
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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 5.
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 8.1 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 Stock pursuant to such Business Combination at a price
per share or unit of Replacement
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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 8.2 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 8.3, 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 8.3.
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
similar 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 8.3; 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 (which period of 100 trading days shall not have
commenced prior to the closing under the Purchase Agreements); 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 (or all shares of CCI common stock that the Holder and all Permitted
Transferees may then acquire in exchange for limited liability company CCI Stock
in Charter LLC that are held by the Holder and its Permitted Transferees 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. 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.
8.2. 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.
8.3. 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:
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44
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.
8.4. 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.
8.5. 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.
8.6. 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.
8.7. 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).
8.8. 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,
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personal representatives, conservators, successors and permitted assigns.
8.9. 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 that certain Contribution Agreement, dated as of September 14,
1999, among such Investors, Charter Communications Operating, LLC, Charter
Communications Holding Company, LLC, and Xxxx Xxxxx;
(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.
8.10. 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.
8.11. 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.
8.12. 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
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plural tense and number includes the singular.
8.13. 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.
8.14. 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.
8.15. 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.
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
HOLDER
__________________________________________
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EXHIBIT F
TO
CONTRIBUTION AGREEMENT
FORM OF PUT AGREEMENT
("LOCKUP PUT")
-F-48-
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FORM OF [LOCKUP PERIOD]
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 the 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
shares of CCI common stock are not listed on the Nasdaq National Market, 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
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for preferred membership units of Charter LLC, and all other securities that
constitute "CCI Stock" in accordance with Section 7 of this Agreement.
"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 9 by written notice delivered to
Xxxxx, to sell and to permit any of the Holder's Permitted Transferees (as
defined below) 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 8.3, 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
hereunder (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 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 5.
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
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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 8.1 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 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 8.2 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
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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 8.3, 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
8.3.
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
similar 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 earlier 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) thirty days after the Lockup Termination Date; and
(b) the date specified in Section 8.3.
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."
8. Miscellaneous.
8.1. Complete Agreement; Modifications. This Agreement constitutes
the parties' entire agreement with respect to the subject matter hereof and
supersedes all other agreements,
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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.
8.2. 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.
8.3. 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.
8.4. No Third-Party Benefits. None of the provisions of this
Agreement shall be for the benefit
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of, or enforceable by, any person or entity that is not a party to this
Agreement, other than any Permitted Transferees of the Holder.
8.5. 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.
8.6. 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.
8.7. 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).
8.8. 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.
8.9. 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 that certain Contribution Agreement, dated as of September 14,
1999, among such Investors, Charter Communications Operating, LLC, Charter
Communications Holding Company, LLC, and Xxxx Xxxxx;
(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.
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(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.
8.10. 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.
8.11. 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.
8.12. 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.
8.13. 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.
8.14. 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.
8.15. 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.
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
HOLDER
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_____________________________________
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EXHIBIT G
TO
CONTRIBUTION AGREEMENT
FORM OF LOCKUP AGREEMENT
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CHARTER COMMUNICATIONS, INC.
LOCK-UP AGREEMENT
___________, 1999
Xxxxxxx, Sachs & Co.
Bear, Xxxxxxx & Co. Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx Barney Inc.
X.X. Xxxxxxx & Sons Inc.
X.X. Xxxx & Company
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: Charter Communications, Inc. - Lock-Up Agreement
Ladies and Gentlemen:
The undersigned understands that Xxxxxxx, Sachs & Co., Bear, Xxxxxxx & Co.
Inc., Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxxx Xxxxx
Barney Inc., X.X. Xxxxxxx & Sons Inc. and X.X. Xxxx & Company, as
representatives (the "U.S. REPRESENTATIVES"), propose to enter into an
underwriting agreement (the "U.S. UNDERWRITING AGREEMENT") on behalf of the
several U.S. Underwriters named in Schedule I to such agreement (collectively,
the "U.S. UNDERWRITERS"), with Charter Communications Inc., a Delaware
corporation (the "COMPANY") and Charter Communications Holding Company, LLC
("CHARTER HOLDCO") and that Xxxxxxx Xxxxx International, Bear, Xxxxxxx
International Limited, Xxxxxx Xxxxxxx & Co. International Limited, Xxxxxxxxx
Lufkin & Xxxxxxxx Securities Corporation, Xxxxxxx Xxxxx International, Salomon
Brothers International, ABN AMRO Rothschild, Credit Lyonnais Securities and
Dresdner Bank AG (the "INTERNATIONAL REPRESENTATIVES" and together with the U.S.
Representatives, the "REPRESENTATIVES") propose to enter into an underwriting
agreement (the "INTERNATIONAL UNDERWRITING AGREEMENT" and together with the U.S.
Underwriting Agreement, the "UNDERWRITING AGREEMENTS") on behalf of the several
International Underwriters named in Schedule I to such agreement (collectively,
the "INTERNATIONAL UNDERWRITERS" and together with the U.S. Underwriters, the
"UNDERWRITERS"), with the Company and Charter Holdco, in each case providing for
a public offering of the Common Stock of the Company (the "SHARES") pursuant to
a Registration Statement on Form S-1 that has been filed with the Securities and
Exchange Commission (the "SEC").
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In consideration of the agreement by the Underwriters to offer and sell
the Shares, and of other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the undersigned agrees that, during
the period beginning from the date of the final U.S. Prospectus covering the
public offering of the Shares and continuing to and including the date 180 days
after the date of such final Prospectus, the undersigned will not offer, sell,
contract to sell, pledge, grant any option to purchase, make any short sale or
otherwise dispose of any shares of Common Stock of the Company, or any options
or warrants to purchase any shares of Common Stock of the Company, or any
securities convertible into, exchangeable for or that represent the right to
receive shares of Common Stock of the Company, whether now owned or hereinafter
acquired, owned directly by the undersigned (including holding as a custodian)
or with respect to which the undersigned has the voting power or power of
disposition within the rules and regulations of the SEC (collectively the
"UNDERSIGNED'S SHARES"), except to the extent that this restriction will not
restrict the undersigned from fulfilling the undersigned's fiduciary duty to any
other person with respect to any shares of Common Stock of the Company owned by
such other person.
The foregoing restriction is expressly agreed to preclude the undersigned
from engaging in any hedging or other transaction which is designed to or which
reasonably could be expected to lead to or result in a sale or disposition of
the Undersigned's Shares even if such Shares would be disposed of by someone
other than the undersigned. Such prohibited hedging or other transactions would
include without limitation any short sale or any purchase, sale or grant of any
right (including without limitation any put or call option) with respect to any
of the Undersigned's Shares or with respect to any security that includes,
relates to, or derives any significant part of its value from such Shares.
Notwithstanding the foregoing, the undersigned may transfer the
Undersigned's Shares (i) as a bona fide gift or gifts, provided that the donee
or donees thereof agree to be bound in writing by the restrictions set forth
herein, (ii) to any trust for the direct or indirect benefit of the undersigned
or the immediate family of the undersigned, provided that the trustee of the
trust agrees to be bound in writing by the restrictions set forth herein, and
provided further that any such transfer shall not involve a disposition for
value, (iii) to Xxxx X. Xxxxx or any entity controlled by Xxxx X. Xxxxx,
provided that in each case the transferee agrees to be bound in writing by the
restrictions contained herein, (iv) to any other seller in the Xxxxxx
acquisition who is eligible to receive any portion of his pro-rata purchase
price in the form of membership units of Charter Holdco pursuant to the Letter
Agreement, dated August 27, 1999, provided that each transferee agrees to be
bound in writing by the restrictions contained herein, or (v) with the prior
written consent of Xxxxxxx, Sachs & Co. on behalf of the Underwriters. For
purposes of this Lock-Up Agreement, "immediate family" shall mean any
relationship by blood, marriage or adoption, not more remote than first cousin.
In addition, notwithstanding the foregoing, if the undersigned is a corporation,
the corporation may transfer the capital stock of the Company to any
wholly-owned subsidiary of such corporation; provided, however, that in any such
case, it shall be a condition to the transfer that the transferee execute an
agreement stating that the transferee is receiving and holding such capital
stock subject to the provisions of this Agreement and there shall be no further
transfer of such capital stock except in accordance with this Agreement, and
provided further that any such transfer shall not involve a disposition for
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value. The undersigned agrees and consents to the entry of stop transfer
instructions with the Company's transfer agent and registrar against the
transfer of the Undersigned's Shares except in compliance with the foregoing
restrictions.
The undersigned understands that the Company and the Underwriters are
relying upon this Lock-Up Agreement in proceeding toward consummation of the
offering. The undersigned further understands that this Lock-Up Agreement is
irrevocable and shall be binding upon the undersigned's heirs, legal
representatives, successors, and assigns.
Very truly yours,
Exact Name of Shareholder
Authorized Signature
Title
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