Exhibit 10.17
ACCRETION PUT AGREEMENT
This Accretion Put Agreement ("Agreement") is made as of the 12th day of
November, 2001, by and between ▇▇▇▇ ▇. ▇▇▇▇▇, an individual ("▇▇▇▇▇"), and
Chatham Investments, LLLP (▇▇▇▇▇ ▇. ▇▇▇▇▇), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, CRM I Limited Partnership LLLP, CRM II Limited Partnership, LLLP,
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ Family Investment Company, L.L.L.P., ▇▇▇▇▇▇ &
Associates, Inc., and ▇▇▇▇▇▇ Children's Trust III (the "Holders"), with
reference to the following facts:
A. The Holders (or their predecessors in interest) were party to (1)
that certain Purchase and Sale Agreement by and among Charter Communications
Operating, LLC ("CCO") (as assignee), the persons or entities listed on the
signature pages thereto as "Sellers," and ▇▇▇▇▇▇ 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 CCO (as assignee) 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 acquired all
of the outstanding equity of RAP and InterLink, respectively.
▇. ▇▇▇▇▇ was the indirect controlling owner of CCO and derived benefit
from the transactions contemplated by the Purchase Agreements.
C. The Holders (or their predecessors in interest) are former owners of
interests in RAP and/or InterLink and, in connection with the transaction by
which CCO acquired RAP and InterLink, and pursuant to the Contribution Agreement
(as defined below), the Holders (or their predecessors in interest) were 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"), the Holders (or their predecessors in interest)
exchanged some or all of their preferred membership units in Charter LLC for CCI
Stock (as defined below),
E. The parties desire to enter into this Put Agreement pursuant to which
▇▇▇▇▇ has given the Holders certain rights with respect to the CCI Stock.
NOW, THEREFORE, in consideration of the respective covenants and
agreements of the parties and for other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged by each party), the
parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms have the
following meanings:
"Closing Price" means, with respect to a share of CCI common stock, (i)
the last reported sales price, regular way, as reported on the principal
national securities exchange on which shares of CCI common stock are listed or
admitted for trading or (ii) if shares of CCI common
stock are not listed or admitted for trading on any national securities
exchange, the last reported sales price, regular way, as reported on the Nasdaq
National Market or, in the absence of any last reported sales price, the average
of the highest bid and lowest asked prices as reported on the Nasdaq Stock
Market.
"CCI Stock" means all shares of Class A Common Stock of CCI issued to
the Holders (or their predecessors in interest) in exchange for preferred
membership units of Charter LLC, and all other securities that constitute "CCI
Stock" in accordance with Section 5 of this Agreement.
"Contribution Agreement" means the Contribution Agreement dated as of
September 14, 1999, by and among CCO, Charter Communications Holding Company,
LLC, the Investors, CCI and ▇▇▇▇▇, as amended by the First Amendment to
Contribution dated as of November 12, 1999.
"Minimum Amount" means, with respect to each Holder, 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 such Holder's Put Option
under this Agreement (provided that such amount shall be reduced to 50% of the
CCI Stock that is subject to such Holder's Put Option under this Agreement for
the period February 12, 2001 through May 12, 2001).
2. Put Option. ▇▇▇▇▇ hereby grants to each Holder the right and option
(the "Put Option"), exercisable from and after February 12, 2001, through and
including the date of termination of the Put Option under Section 7 by written
notice delivered to ▇▇▇▇▇, to sell and to permit any of such Holder's Permitted
Transferees to sell to ▇▇▇▇▇ or his designee, from time to time, on one or more
occasions, all or any portion of the CCI Stock held by such Holder and its
Permitted Transferees that represents at least the Minimum Amount; provided,
however, that each Holder and its Permitted Transferees shall not be entitled to
exercise it's put option hereunder with respect to more than 50% of the CCI
Stock owned by such Holder on the date hereof prior to May 12, 2001. Upon the
giving of such notice, ▇▇▇▇▇ shall be obligated to buy or to cause his designee
to buy and, subject to Section 5.3, the exercising Holder and the Permitted
Transferees identified in the exercising Holder's notice pursuant to this
Section 2 shall be obligated to sell, the amount of the CCI Stock held by such
Holder and its Permitted Transferees that is specified in such Holder's notice
pursuant to this Section 2, at the price and upon the terms and conditions
specified in Section 3. Notwithstanding the foregoing, if ▇▇▇▇▇ delivers a
notice pursuant to Section 5.3(i) hereof at a time when the Put Option is not
exercisable with respect to any shares of CCI Stock, the Put Option shall be
immediately exercisable as to those shares, provided such exercisability shall
be conditioned upon the consummation of the Business Combination described in
▇▇▇▇▇'▇ notice.
3. Purchase Price; Closing.
3.1 The purchase price to be paid upon any exercise of the Put
Option (the "Purchase Price") shall equal $19.00 per share (calculated in
accordance with Section 5, if applicable), plus interest thereon at a rate of
four and one-half percent (4.5%) per year, compounded annually, for the period
from November 12, 1999 through the closing of the purchase and sale of the CCI
Stock hereunder (the "Closing").
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3.2 At each Closing, (a) ▇▇▇▇▇ or his designee shall pay to the
exercising Holder (for itself and on behalf of its Permitted Transferees, if
applicable) the Purchase Price in immediately available funds by wire transfer
(if wire transfer instructions were provided in the notice of exercise) or
certified bank check; and (b) the exercising Holder shall deliver or cause to be
delivered to ▇▇▇▇▇ 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 ▇▇▇▇▇ to effectuate the transfer of such CCI Stock to ▇▇▇▇▇ or his
designee, together with a certificate of such Holder and its Permitted
Transferee, if applicable, reaffirming the representations in Section 4.
3.3 Each Closing shall be held at the offices of Irell & ▇▇▇▇▇▇▇
in Los Angeles, California, on (or before if ▇▇▇▇▇ so determines) the thirtieth
day after the exercising 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 exercising Holder and ▇▇▇▇▇ may agree. The
exercising Holder and ▇▇▇▇▇ 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 Holders. Each Holder represents and warrants
to ▇▇▇▇▇ and any of his designees or assignees that on the date hereof and at
each Closing: (a) such 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 such Holder,
enforceable against such Holder in accordance with its terms; (c) at each
Closing, such 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, ▇▇▇▇▇ or his designee
will receive good title to the CCI Stock, free and clear of all liens,
encumbrances and adverse interests created by the exercising Holder, any
Permitted Transferee, or any of their respective predecessors-in-interest, other
than those arising under applicable law or those arising under the
organizational documents of CCI.
5. Adjustment for Exchange, Reorganizations, Stock Splits, etc.
5.1 If the number of shares of CCI Stock is increased, decreased,
changed into, or exchanged for a different number or kind of shares or
securities of CCI through reorganization, recapitalization, reclassification,
stock dividend, stock split or reverse stock split, or other similar
transaction, an appropriate adjustment shall be made with respect to number and
kind of shares or securities subject to the Put Option, without change in the
total price applicable to the unexercised portion of the Put Option but with a
corresponding adjustment in the price per unit of any security covered by the
Put Option. Any shares or securities that become subject to the Put Option
pursuant to this Section 5.1 shall constitute "CCI Stock" for purposes of this
Agreement.
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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 5.2 shall constitute "CCI
Stock" for purposes of this Agreement.
5.3 In the event of any proposed Business Combination pursuant to
which the outstanding CCI Stock will be converted into a right to receive
consideration other than securities of CCI or Replacement Securities, (i) ▇▇▇▇▇
will provide notice thereof to the Holders 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 any Holder pursuant to Section 2 prior to
such date. If any Holder delivers a notice pursuant to Section 2 after its
receipt of a notice from ▇▇▇▇▇ pursuant to this Section 5.3, the purchase and
sale of any of the CCI Stock specified in such Holder's notice may be
conditioned at such Holder's option on the consummation of the Business
Combination described in ▇▇▇▇▇'▇ notice pursuant to this Section 5.3.
6. Representations of ▇▇▇▇▇. ▇▇▇▇▇ represents and warrants to each
Holder and each Permitted Transferee that on the date hereof and at all times
hereafter through the Closing: (a) ▇▇▇▇▇ 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 ▇▇▇▇▇,
enforceable against ▇▇▇▇▇ 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 all Holders) no more frequently than once every 180
days, ▇▇▇▇▇ 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 ▇▇▇▇▇'▇ assets over the aggregate amount of ▇▇▇▇▇'▇
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 any Holder pursuant to Section 2 prior to such earliest
date:
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(a) the second anniversary of the date of this Agreement;
(b) the date specified in Section 5.3; and
(c) the first date on which the Closing Price of CCI
common stock has exceeded $23.00 per share for any 60 trading days during the
preceding 67 consecutive trading days; provided that no such 67 day period shall
commence prior to February 12, 2002.
7.2 The Put Option shall terminate as to any CCI Stock on the
date on which such CCI Stock is first transferred by a 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) 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 any Holder, to the address set forth for such Holder on the
applicable signature page attached hereto.
If to ▇▇▇▇▇:
▇▇▇▇ ▇. ▇▇▇▇▇
c/o Vulcan Ventures Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Irell & ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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 a
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) Any 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:
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(i) any person or entity that was among the
"Investors" who were party to the Contribution Agreement;
(ii) any person or entity that, directly or
indirectly, through the ownership of voting securities, controls, is controlled
by, or is commonly controlled with such Holder;
(iii) a trust for the benefit of the equity owners
of such Holder and of which the trustee or trustees are one or more persons or
entities that either control, or are commonly controlled with, such Holder or
are banks, trust companies, or similar entities;
(iv) any person or entity for which such Holder is
acting as nominee or any trust controlled by or under common control with such
person or entity;
(v) if such Holder is an individual, any charitable
foundation, charitable trust, or similar entity, the estate, heirs, or legatees
of such Holder upon such Holder's death, any member of such Holder's family, any
trust or similar entity for the benefit of such Holder or one or more members of
such Holder's family, or any entity controlled by such Holder or one or more
members of such Holder's family.
(b) A Holder may assign all its rights and delegate all
its obligations under this Agreement to any Permitted Transferee thereof, and
such Permitted Transferee shall thereupon be deemed to be a "Holder" for
purposes of this Agreement.
(c) ▇▇▇▇▇ 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 ▇▇▇▇▇, but no such assignment will relieve ▇▇▇▇▇ 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 any
Holder's right under this Agreement and the purchase and sale of any CCI Stock
pursuant to this Agreement.
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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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first set forth above.
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▇▇▇▇ ▇. ▇▇▇▇▇, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
attorney-in-fact
[SIGNATURE PAGE TO ACCRETION PUT AGREEMENT]
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"HOLDERS"
▇▇▇▇▇▇ FAMILY INVESTMENT COMPANY, L.L.L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: Its General Partners
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▇▇▇▇▇▇ & ASSOCIATES, INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman of the Board
[SIGNATURE PAGE TO ACCRETION PUT AGREEMENT]
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CRM I LIMITED PARTNERSHIP LLLP
▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III, General Partner
CRM II LIMITED PARTNERSHIP, LLLP
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III, General Partner
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CHATHAM INVESTMENTS, LLLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇, General Partner
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▇▇▇▇▇▇ CHILDREN'S TRUST III
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▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Co-Trustee
[SIGNATURE PAGE TO ACCRETION PUT]
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