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EXHIBIT 10.10
REGISTRATION SUPPORT PUT AGREEMENT
This Registration Support Put Agreement ("Agreement") is made as of the
12th day of November, 1999, by and between ▇▇▇▇ ▇. ▇▇▇▇▇, an individual
("▇▇▇▇▇"), 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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇ 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, ▇▇▇▇▇ agreed to enter into this Agreement, giving Holder certain
rights with respect to the CCI Stock.
NOW, THEREFORE, in consideration of the respective covenants and
agreements of the parties and for other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged by each party), the
parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms have the
following meanings:
"Closing Price" means, with respect to a share of CCI common stock, (i)
the last reported sales price, regular way, as reported on the principal
national securities exchange on which shares of CCI common stock are listed or
admitted for trading or (ii) if shares of CCI common stock are not listed or
admitted for trading on any national securities exchange, the last reported
sales price, regular way, as reported on the Nasdaq National Market or, if such
last reported sales price is not available, the average of the highest bid and
lowest asked prices as reported on the Nasdaq Stock Market.
"CCI Stock" means all shares of common stock of CCI issued to Holder in
exchange for preferred membership units of Charter LLC, and all other securities
that constitute "CCI Stock" in accordance with Section 5 of this Agreement.
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"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.
"Registration Rights Agreement" means that certain Registration Rights
Agreement, dated the date hereof, among CCI, the Holder and certain additional
holders of CCI Stock executing such agreement.
2. Put Option. ▇▇▇▇▇ hereby grants to the Holder the right and option
(the "Put Option"), exercisable by written notice in the form attached as
Exhibit A hereto delivered to ▇▇▇▇▇ at any time after the date that is 180 days
from the date hereof until the date of termination of the Put Option under
Section 7, to sell and to permit any of the Holder's Permitted Transferees to
sell to ▇▇▇▇▇ or his designee, from time to time, on one or more occasions, all
or any portion of the Registrable Securities (as defined in the Registration
Statement) held by the Holder and its Permitted Transferees; provided, however,
that the Put Option shall not be exercisable unless on the date the written
notice of exercise is delivered the Registrable Securities specified in the
Holder's notice pursuant to this Section 2 are not then able to be resold under
the Registration Statement contemplated by the Registration Rights Agreement
(whether or not such inability constitutes a breach of the Registration Rights
Agreement). Upon the giving of such notice, ▇▇▇▇▇ shall be obligated to buy or
to cause his designee to buy and, subject to Section 5.3, the Holder and the
Permitted Transferees identified in the Holder's notice pursuant to this Section
2 shall be obligated to sell, the amount of the CCI Stock held by the Holder and
its Permitted Transferees that is specified in the Holder's notice pursuant to
this Section 2, at the price and upon the terms and conditions specified in
Section 3.
3. Purchase Price; Closing.
3.1 The purchase price to be paid upon any exercise of the Put
Option (the "Purchase Price") shall be equal to the Closing Price of CCI common
stock on the date on which the Holder's notice of exercise is delivered under
Section 2 (or if such date is not a trading day, then the Closing Price on the
next trading day).
3.2 At each closing of the purchase and sale of the CCI Stock
pursuant to the exercise of the Put Option (the "Closing"), (a) ▇▇▇▇▇ or his
designee shall pay to the Holder (for itself and on behalf of its Permitted
Transferees, if applicable) the Purchase Price in immediately available funds by
wire transfer (if wire transfer instructions were provided in the notice of
exercise) or certified bank check; and (b) the Holder shall deliver or cause to
be delivered to ▇▇▇▇▇ 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 the Holder and its Permitted
Transferee, if applicable, reaffirming the representations in Section 4.
3.3 Each Closing shall be held at the offices of Irell & ▇▇▇▇▇▇▇
in Los Angeles, California, on the thirtieth day after the Holder delivers the
written notice described above (or, if such day is not a business day, on the
next business day thereafter), or at such other time and
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place as the Holder and ▇▇▇▇▇ may agree. The 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 Holder. The Holder represents and warrants to
▇▇▇▇▇ 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, ▇▇▇▇▇ or his designee will receive good
title to the CCI Stock, free and clear of all liens, encumbrances and adverse
interests created by the Holder, any Permitted Transferee, or any of their
respective predecessors-in-interest, other than those arising under applicable
law or those arising under the organizational documents of CCI.
5. Adjustment for Exchange, Reorganizations, Stock Splits, etc.
5.1 If the number of shares of CCI Stock is increased, decreased,
changed into, or exchanged for a different number or kind of publicly-traded
shares or securities of CCI through reorganization, recapitalization,
reclassification, stock dividend, stock split or reverse stock split, or other
similar transaction, an appropriate adjustment shall be made with respect to
number and kind of shares or securities subject to the Put Option. Any shares or
securities that become subject to the Put Option pursuant to this Section 5.1
shall constitute "CCI Stock" for purposes of this Agreement.
5.2 Upon a reorganization, merger or consolidation of CCI with
one or more other corporations or entities (any of the foregoing, a "Business
Combination") pursuant to which the outstanding CCI Stock is converted into or
exchanged in whole or in part for any other publicly-traded security
("Replacement Securities"), the Put Option shall cease to be exercisable with
respect to the securities that previously constituted "CCI Stock" and shall
instead be automatically converted into an option to sell such number of shares
or units of Replacement Securities issued in exchange for the CCI Stock pursuant
to such Business Combination at a price per share or unit of Replacement
Securities equal to the aggregate Purchase Price for all CCI Stock immediately
prior to such effectiveness divided by the number of shares or units of
Replacement Securities subject to the Put Option immediately following such
effectiveness. Any Replacement Securities that become subject to the Put Option
pursuant to this Section 5.2 shall constitute "CCI Stock" for purposes of this
Agreement.
5.3 In the event of any proposed Business Combination pursuant to
which the outstanding CCI Stock will be converted in whole or in part into a
right to receive consideration other than publicly-traded securities of CCI or
Replacement Securities, (i) ▇▇▇▇▇ will provide notice thereof to the Holder at
least ten (10) days prior to consummation of such Business
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Combination and (ii) the Put Option will expire two days prior to such
consummation except with respect to any CCI Stock that is specified in a notice
delivered by the Holder pursuant to Section 2 prior to such date and except to
the extent the Put Option will continue under 5.2 as to that portion of the
consideration received constituting Replacement Securities. If the Holder
delivers a notice pursuant to Section 2 after its receipt of a notice from ▇▇▇▇▇
pursuant to this Section 5.3, the purchase and sale of any of the CCI Stock
specified in the Holder's notice may be conditioned at the Holder's option on
the consummation of the Business Combination described in ▇▇▇▇▇'▇ notice
pursuant to this Section 5.3.
6. Representations of ▇▇▇▇▇. ▇▇▇▇▇ represents and warrants to the 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 Holder together with all other holders receiving put
agreements in connection with the transactions under the Purchase Agreements) no
more frequently than once every 180 days, ▇▇▇▇▇ 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. The Put Option shall terminate on the
earlier of (i) the date on which all Registrable Securities covered by the
Registration Statement have been sold pursuant to the Shelf Registration (each
as defined in the Registration Rights Agreement) or otherwise sold (other than
to Permitted Transferrees) and (ii) the date two years from the date hereof.
8. Miscellaneous.
8.1 No Impairment of other Put Rights. Nothing herein is intended
to supersede, or limit Holder's ability to exercise its rights under, the
Accretion Put (as defined in the Contribution Agreement).
8.2 Complete Agreement; Modifications. This Agreement constitutes
the parties' entire agreement with respect to the subject matter hereof and
supersedes all other agreements, representations, warranties, statements,
promises and understandings, whether oral or written, with respect to the
subject matter hereof. This Agreement may not be amended, altered or modified
except by a writing signed by both parties.
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8.3 Additional Documents. Each party hereto agrees to execute any
and all further documents and writings and to perform such other actions which
may be or become necessary or expedient to effectuate and carry out this
Agreement.
8.4 Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be sufficiently
given if delivered in person or transmitted by telecopy or similar means of
recorded electronic communication to the relevant party, addressed as follows
(or at such other address as either party shall have designated by notice as
herein provided to the other party):
If to the Holder, to the address set forth on the signature page
attached hereto.
If to ▇▇▇▇▇:
▇▇▇▇ ▇. ▇▇▇▇▇
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ @ Vulcan Northwest
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Irell & ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
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.
8.5 No Third-Party Benefits. None of the provisions of this
Agreement shall be for the benefit of, or enforceable by, any person or entity
that is not a party to this Agreement, other than any Permitted Transferees of
the Holder.
8.6 Waivers Strictly Construed. With regard to any power, remedy
or right provided herein or otherwise available to any party hereunder (a) no
waiver or extension of time shall be effective unless expressly contained in a
writing signed by the waiving party; and (b) no alternation, modification or
impairment shall be implied by reason of any previous waiver, extension of time,
delay or omission in exercise or other indulgence.
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8.7 Severability. The validity, legality or enforceability of the
remainder of this Agreement shall not be affected even if one or more of the
provisions of this Agreement shall be held to be invalid, illegal or
unenforceable in any respect.
8.8 Undertakings. All authority herein conferred or agreed to be
conferred upon a party to this Agreement and all agreements of a party contained
herein shall survive the death or incapacity of such party (or any of them).
8.9 Successors and Assigns. Except as provided herein to the
contrary, this Agreement shall be binding upon and shall inure to the benefit of
the parties, their respective heirs, estates, personal representatives,
conservators, successors and permitted assigns.
8.10 Assignments.
(a) The Holder and any Permitted Transferee may transfer
some or all of its CCI Stock to any of the following persons or entities (each
such person or entity, a "Permitted Transferee"), and the Permitted Transferee
shall thereupon have the rights provided in this Agreement:
(i) any person or entity that was among the
"Investors" who were party to the Contribution Agreement;
(ii) any person or entity that, directly or
indirectly, through the ownership of voting securities, controls, is controlled
by, or is commonly controlled with the Holder;
(iii) a trust for the benefit of the equity owners
of the Holder and of which the trustee or trustees are one or more persons or
entities that either control, or are commonly controlled with, the Holder or are
banks, trust companies, or similar entities;
(iv) any person or entity for which the Holder is
acting as nominee or any trust controlled by or under common control with such
person or entity;
(v) if the Holder is an individual, any charitable
foundation, charitable trust, or similar entity, the estate, heirs, or legatees
of the Holder upon the Holder's death, any member of the Holder's family, any
trust or similar entity for the benefit of the Holder or one or more members of
the Holder's family, or any entity controlled by the Holder or one or more
members of the Holder's family.
(b) The Holder may assign all its rights and delegate all
its obligations under this Agreement to any Permitted Transferee, and such
Permitted Transferee shall thereupon be deemed to be the "Holder" for purposes
of this Agreement.
(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.
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8.11 Governing Law. This Agreement shall be governed by the laws
of the State of Delaware, without regard to any choice of law provisions of that
state or the laws of any other jurisdiction.
8.12 Headings. The Section headings in this Agreement are
inserted only as a matter of convenience and in no way define, limit, extend or
interpret the scope of this Agreement or of any particular Section.
8.13 Number and Gender. Throughout this Agreement, as the context
may require, (a) the masculine gender includes the feminine and neuter; and the
neuter gender includes the masculine and feminine; and (b) the singular tense
and number includes the plural, and the plural tense and number includes the
singular.
8.14 Counterparts. This Agreement may be executed simultaneously
in two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
8.15 Costs. Except as otherwise provided in this Agreement, each
party will bear his or its own costs in connection with the exercise of the
Holder's right under this Agreement and the purchase and sale of any CCI Stock
pursuant to this Agreement.
8.16 Default. In the event of any legal action between the
parties arising out of or in relation to this Agreement, the prevailing party in
such legal action shall be entitled to recover, in addition to any other legal
remedies, all of his or its costs and expenses, including reasonable attorney's
fees, from the non-prevailing party, regardless of whether such legal action is
prosecuted to completion.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first set forth above.
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▇▇▇▇ ▇. ▇▇▇▇▇, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
attorney-in-fact
[SIGNATURE PAGE TO REGISTRATION SUPPORT PUT]
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HOLDER
[SIGNATURE PAGE TO REGISTRATION SUPPORT PUT]
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ADDRESS OF HOLDER:
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Exhibit A
Notice of Exercise