SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM 8-K
Current
Report
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): January
23, 2006
Charter
Communications, Inc.
(Exact
name of registrant as specified in its charter)
Delaware
(State
or Other Jurisdiction of Incorporation or Organization)
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000-27927
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43-1857213
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(Commission
File Number)
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(I.R.S.
Employer Identification
Number)
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12405
Powerscourt Drive
St.
Louis, Missouri 63131
(Address
of principal executive offices including zip code)
(314)
965-0555
(Registrant's
telephone number, including area code)
Not
Applicable
(Former
name or former address, if changed since last report)
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
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o
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Written
communications pursuant to Rule 425 under the Securities Act
(17 CFR
230.425)
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o
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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| o |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act
(17 CFR
240.14d-2(b))
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o
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act
(17 CFR
240.13e-4(c))
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ITEM
1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
(a) Charter
Communications, Inc. ("Charter") has entered into an agreement setting
forth the
terms under which Mr. Jeffrey T. Fisher will serve as Executive Vice President
and Chief Financial Officer of Charter. See Item 5.02 below for additional
information. A
copy of
Mr. Fisher's employment agreement and press release announcing his employment
are being filed with this report as Exhibits 10.1 and 99.1,
respectively.
(b) On
January
26, 2006, CCO Holdings, LLC and CCO Holdings Capital Corp., indirect
subsidiaries of Charter, entered into a Waiver and Amendment agreement
with
JPMorgan Chase Bank, N.A. as Administrative Agent for J.P. Morgan Securities
Inc., Credit Suisse, Cayman Islands Branch and Deutsche Bank Securities
Inc. The
parties agreed to amend the Senior Bridge Loan Agreement dated as of
October 17,
2005 in order to permit CCO Holdings, LLC's parent company, CCH II, LLC,
to
issue a minimum of $400 million in senior notes the proceeds of which
would be
used to repay, but not permanently reduce, outstanding amounts due under
the
Amended and Restated Credit Agreement dated as of March 18, 1999 between
Charter
Communications Operating LLC and JPMorgan Chase Bank, N.A. as administrative
agent. The availability amount of $600 million under the Senior Bridge
Loan
Agreement will only be reduced by proceeds from the note offering which
are in
excess of $275 million (assuming $450 million of proceeds, $425 million
would
remain available under the bridge loan).
A
copy of
the Waiver and Amendment is being filed with this report as Exhbit
10.2.
(c) On
January
26, 2006, CCH II, LLC and CCH II Capital Corp. (together, the Issuers),
indirect
subsidiaries of Charter, entered into a purchase agreement (the "Agreement")
with J. P. Morgan Securities Inc., Credit Suisse Securities (USA) LLC and
Deutsche Bank Securities Inc. as representatives of several purchasers.
In
the Agreement, the Issuers agreed to issue and sell, in a private transaction
under Rule 144A and Regulation S, $450 million in principal amount of 10.25%
Senior Notes due 2010 (the "Notes"). In the Agreement, the Issuers
agreed
to issue the Notes with the benefit of a Registration Rights Agreement
and under
a Supplemental Indenture, each with terms substantially similar to the
terms of
the Issuers' existing 10.25% senior notes. The Notes will bear
interest at
10.25% per annum, payable on March 15 and September 15 of each year, will
mature
on September 15, 2010 and are redeemable at the Issuers' option on or after
September 15, 2008 at various redemption prices beginning at 105.25% in
September 2008 and declining to par in September 2009. In addition,
from
the proceeds of certain equity offerings, we may redeem up to 35% of the
Notes
at 110.25% of their principal amount.
The
Issuers intend to use the foregoing net proceeds to repay, but not permanently
reduce, the outstanding debt balances under the existing revolving credit
facility of a subsidiary of Charter.
A
copy of
the purchase agreement is being filed with this report as Exhibit
10.3.
Copies
of
the press releases announcing the sale and the pricing are being filed
with this
report as Exhibits 99.2 and 99.3.
ITEM
2.03
CREATION OF A DIRECT FINANCIAL OBLIGATION OR AN OBLIGATION OF
REGISTRANT.
The
information in Item 1.01 (b) and (c) of this Form 8-K is hereby
incorporated by reference to this Item 2.03.
ITEM
5.02. DEPARTURE OF DIRECTORS OR PRINCIPAL OFFICERS; ELECTION OF
DIRECTORS;
APPOINTMENT OF PRINCIPAL OFFICERS.
Jeffrey
T. Fisher, 43, has been appointed to the position of Executive Vice President
and Chief Financial Officer, effective February 6, 2006. Prior to joining
Charter, Mr. Fisher was employed by Delta Airlines, Inc. from 1998 to 2006
in a
number of positions including Senior Vice President - Restructuring from
September 2005 until January 2006, President and General Manager of Delta
Connection, Inc. from January to September 2005, Chief Financial Officer
of
Delta Connection from 2001 until January 2005, Vice President of Finance,
Marketing and Sales Controller of Delta Airlines in 2001 and Vice President
of
Financial Planning and Analysis of Delta Airlines from 2000 to 2001. Delta
Airlines filed a petition under Chapter 11 of the Bankruptcy Code on September
14, 2005. Mr. Fisher received a BBM degree from Embry Riddle University
and a
MBA in International Finance from University of Texas in Arlington,
Texas.
Charter
and Mr. Fisher entered into an employement agreement, dated as of January
20,
2006 (the "Employment Agreement"), whereby Mr. Fisher will serve in an
executive
capacity as its Executive Vice President at a salary of $500,000, to perform
such executive, managerial and administrative duties as are assigned or
delegated by President and/ or Chief Executive Officer, including but not
limited to serving as Chief Financial Officer. The term of the Employment
Agreement is two years from the effective date. Under the Employment Agreement,
Mr. Fisher will receive a signing bonus of $100,000 and he shall be eligible
to
receive a performance-based target bonus of up to 70% of salary and to
participate in the Long Term Incentive Plan and to receive such other employee
benefits as are available to other senior executives. Mr. Fisher will
participate in the 2005 Executive Cash Award Plan commencing in 2006 and,
in
addition, Charter will provide the same additional benefit to Mr. Fisher
that he
would have been entitled to receive under the Cash Award Plan if he had
participated in the Plan at the time of the inception of the Plan in 2005.
He
will also receive a grant of 50,000 restricted shares of Charter's Class
A
common stock, vesting in equal installments over a three-year period from
employment date; an award of options to purchase 1,000,000 shares of Charter's
Class A common stock under terms of the stock incentive plan on the effective
date of the Employment Agreement; and in the first quarter of 2006, an
award of
additional options to purchase 145,800 shares of Charter's Class A common
stock
under the stock incentive plan. Those options shall vest in equal installments
over a four-year time period from the grant date. In addition, in the first
quarter of 2006, he will receive 83,700 performance shares under the stock
incentive plan and will be eligible to earn these shares over a three-year
performance cycle from January 2006 to December 2008.
Mr.
Fisher will receive relocation assistance pursuant to Charter's executive
homeowner relocation plan and the costs for temporary housing.
In the
event that Mr. Fisher is terminated by Charter without "cause'' or for
"good
reason,'' as those terms are defined in the employment agreement, Mr. Fisher
will receive his salary for the remainder of the term of the agreement
or twelve
months' salary, whichever is greater; a pro rata bonus for the year of
termination; a lump sum payment equal to payments due under COBRA for the
greater of twelve months or the number of full months remaining in the
term of
the agreement; and the vesting of options and restricted stock for as long
as
severance payments are made. The Employment Agreement contains a one-year
non-compete provision (or until the end of the term of the agreement, if
longer)
and a two-year non-solicitation clause.
The
full
text of the Employment Agreement is filed herewith as Exhibit 10.1.
ITEM
9.01 FINANCIAL STATEMENTS AND EXHIBITS.
The
following exhibits are filed pursuant to Item 1.01
and Item 5.02:
|
Exhibit
Number
|
Description
|
|
| 10.1 | Employment Agreement dated as of January 20, 2006. | |
| 10.2 | Waiver and Amendment Agreement dated January 26, 2006. | |
| 10.3 | Purchase Agreement dated January 26, 2006. | |
| 99.1 | Press Release dated as of January 23, 2006. | |
| 99.2 | Press Release dated as of January 24, 2006. | |
|
99.3
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Press
Release dated as of January 26, 2006.
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, Charter
Communications, Inc. has duly caused this Current Report to be signed on
its
behalf by the undersigned hereunto duly authorized.
CHARTER
COMMUNICATIONS, INC.
Registrant
Dated:
January 27, 2006
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|
By:/s/
Grier C. Raclin
Name:
Grier C. Raclin
Title:
Executive Vice President and General
Counsel
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EXHIBIT
INDEX
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Exhibit
Number
|
Description
|
|
| 10.1 | Employment Agreement dated as of January 20, 2006.* | |
| 10.2 | Waiver and Amendment Agreement dated January 26, 2006.* | |
| 10.3 | Purchase Agreement dated January 26, 2006.* | |
| 99.1 |
Press
Release dated January 23, 2006.*
|
|
|
99.2
|
Press
Release dated January 24, 2006.*
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|
| 99.3 | Press Release dated January 26, 2006.* |
*
filed
herewith
Exhibit
10.1
EMPLOYMENT
AGREEMENT
THIS
EMPLOYMENT AGREEMENT
(this
"Agreement") is entered into as of January 20, 2006 (the "Effective Date")
by
and between Charter
Communications, Inc.,
a
Delaware corporation ("Charter"), and Jeffrey
T. Fisher,
an
individual (the "Executive"). For purposes of this Agreement, except with
respect to Charter’s obligations to Executive, the term "Company" includes
Charter and all direct and indirect subsidiaries and controlled affiliates.
W
I T N E S S E T H:
WHEREAS:
(1)
Charter and Executive desire for Executive to be employed by Charter
upon and subject to the terms and conditions set forth in this
Agreement;
(2)
Executive is willing and desires to be employed by Charter under the terms
of
this Agreement in
lieu
of any prior terms and conditions applicable to such existing
employment;
(3)
Executive is willing and desires to accept employment with Charter hereafter
upon and subject to the terms of this Agreement; and
(4)
Executive’s agreement to the terms and conditions of Sections 6 and 7 are a
material and essential
condition of Executive’s employment with Charter hereafter under the terms of
this Agreement;
Now,
Therefore, in consideration of the premises, and the promises and agreements
set
forth below, the parties, intending to be legally bound, agree as
follows:
1. Employment
Terms and Duties.
1.1 Employment.
Charter
hereby employs Executive in an executive capacity as its Executive Vice
President and Executive hereby accepts employment by Charter in an executive
capacity as its Executive Vice President, upon the terms and conditions
set
forth in this Agreement and under a relationship of trust and
confidence.
1.2 Term.
Executive’s employment under this Agreement commences as of the Effective Date
and unless earlier terminated pursuant to the provisions of Section 5 below,
shall terminate on the second anniversary of the Effective Date (the "Term").
If
Executive continues in Charter’s employ thereafter, Executive’s employment shall
be on an at will basis, and only the provisions of Sections 6-7, and provisions
directly related to their enforcement, shall continue to have any application
or
effect.
1.3 Duties.
Executive is employed in an executive capacity to perform such executive,
managerial and administrative duties as are assigned or delegated to Executive
from time to time by the President and/or Chief Executive Officer or designee
thereof, including but not limited to serving as Chief Financial Officer.
The
time when Executive will initially be assigned and start to serve as Chief
Financial Officer of Charter, and assigned the responsibilities of that
position, may be delayed by Charter up to and/or until such time as the
Form
10-Ks for fiscal year 2005 for Charter and its subsidiaries are filed with
the
Securities and Exchange Commission (but no later than April 1, 2006 unless
otherwise agreed).
-1-
Executive
will devote substantially all Executive’s business time and attention to the
business of the Company, will act in good faith to promote the success
of the
Company’s business, and will cooperate fully with the Executive Officers of
Charter and the Board of Directors of Charter in the advancement of the
best
interests of the Company. Executive will perform Executive’s duties to the best
of Executive’s abilities using Executive’s best efforts and in accordance with
applicable law, and will comply with and carry out all Company policies
and
codes of conduct. Executive will work out of the Company’s corporate
headquarters (currently located in St. Louis, Missouri), and will travel
from
time to time to the extent reasonably necessary to the performance of
Executive's duties hereunder. It is expected and required, and it is
one of
Executive’s duties hereunder, that Executive act in good faith and use his best
efforts to relocate his family and personal residence from the Atlanta,
Georgia
area to the St. Louis metropolitan area no later than August 14, 2006,
regardless of when he actually sells his personal residence in the Atlanta,
Georgia area.
Nothing
in this Section 1.3, however, will prevent Executive from engaging in additional
activities in connection with personal investments and community affairs
that
are not inconsistent with Executive’s duties under this Agreement (which
community affairs shall be disclosed to and subject to approval by the
President
and/or Chief Executive Officer and/or Chief Operating Officer and/or Chairman
of
the Board of Directors); provided such activities do not create the appearance
of or an actual conflict of interest and do not violate any other provisions
of
this Agreement.
1.4 Service
for Subsidiaries And Affiliates; Indemnification.
Executive may be nominated and appointed to an office with Charter, and/or
one
or more boards of directors and to one or more offices of subsidiaries
and
affiliates of Charter during Executive’s employment. While serving as a director
or as an officer of any such subsidiary or affiliate, or performing any
duties
for any such subsidiary or affiliate, Executive will serve and fulfill
all
duties without additional compensation. Executive will be covered in such
capacities by any directors and officers insurance policy Charter may have
in
place from time to time and by the Company’s indemnification policies as may be
in effect from time to time, as applicable.
2. Compensation.
2.1 Basic
Compensation.
(a) Base
Salary. Starting
the Effective Date, Executive will be paid a base salary at an annual rate
of
$500,000 (the "Salary") during Executive’s employment. The Salary will be
payable in equal periodic installments according to Charter’s customary payroll
practices, but no less frequently than monthly. The Salary may be increased
during the Term of Executive’s employment by the "Board" (the term "Board"
meaning, whenever used herein, the Board of Directors of Charter or the
Compensation Committee or other designated committee of the Board of Directors
of Charter), but shall not be reduced below the rate set forth above without
Executive’s written consent. When increased or decreased in accordance with the
terms of this Agreement, the new minimum base annual salary shall be deemed
Executive’s "Salary" for all purposes of this Agreement.
(b) Signing
Bonus.
Executive will be paid a one time signing bonus of One Hundred Thousand
Dollars
($100,000), within fifteen (15) days after Executive signs and delivers
this
Agreement to Charter.
(c) Relocation
Assistance.
-2-
(1) Executive
will be entitled to relocation assistance with regard to relocation from
Executive’s current residence from the Atlanta, Georgia area to the St. Louis,
Missouri metropolitan area as and to the extent permitted by Charter’s current
executive homeowner relocation plan, through Charter’s relocation provider,
Primacy. A copy of this policy has been provided to Executive. This benefit
requires that a repayment agreement be signed which stipulates that relocation
expenses must be repaid if Executive departs from the organization within
12
months of the Effective Date of this Agreement for voluntary reasons (other
than
a permitted termination of employment by Executive for Good Reason (defined
below) as provided for in Section 5).
(2) As
soon
as practicable following the Effective Date Executive will be provided
with
Charter supplied corporate housing in the St. Louis metropolitan area,
or in
lieu of corporate supplied housing, then in a mutually agreeable hotel
of
appropriate quality during the work week. The costs for this temporary
housing/hotel will be covered by Charter’s homeowner relocation plan until
Executive completes the purchase of a home in the St. Louis metropolitan
area,
or August 14, 2006, whichever first occurs.
(3) If
Executive’s family moves to the St. Louis metropolitan area before August 14,
2006, but before Executive purchases a home in the St. Louis metropolitan
area,
then between the time of the move and the time Executive purchases a home
in the
St. Louis metropolitan area, Executive and Executive’s family may stay in
suitable Charter-supplied corporate housing in the St. Louis metropolitan
area
selected by Charter. The costs for this housing will be covered by Charter’s
homeowner relocation plan, as it is for Executive’s temporary housing, through
(but not after) August 14, 2006.
(4) Until
Executive’s family relocates to the St. Louis metropolitan area, Charter will
reimburse Executive for all reasonable and necessary costs incurred by
Executive
to travel between Executive’s Atlanta residence and St. Louis, Missouri (and, to
the extent corporate housing is not provided, then as part of travel costs,
the
reasonable cost incurred for staying during the week at an agreed hotel
of
suitable quality for Charter executives), on a not more than weekly basis,
during the time period between the date Executive commences work at Charter
headquarters and August 14, 2006. In addition, Charter will pay for the
travel
costs for up to three (3) house hunting / school visit trips for Executive
and
Executive’s family under and per the terms of Charter’s relocation policy;
provided that Executive shall act in good faith to make reasonable efforts
to
minimize the costs associated with such travel. All travel costs incurred
will
be reimbursed under Charter’s normal expense reimbursement policies as soon as
administratively practicable after submission of the expenses and associated
required documentation. To the extent such expense reimbursements are considered
taxable income, Charter will reimburse Executive for those expenses on
a
"grossed up" basis for such taxes (i.e., including any taxes on such tax
reimbursement to the degree it also is deemed income) based on Executive’s
taxable compensation from Charter in that year, calculated on an annualized
basis. Under Charter’s current practice, such gross up payments are made at year
end.
(5) In
the
event Executive purchase a residence in the St. Louis metropolitan area
before
Executive sells his principal residence in Atlanta Georgia, and Executive
owes
monthly mortgage payments on both the St. Louis residence and the Atlanta
residence, then for the months during which Executive is employed by Charter
and
is required to make a monthly home mortgage payment on both residences,
Charter
will reimburse Executive, on a monthly basis, for the lesser of the two
monthly
mortgage payments (excluding payments attributable to home equity lines
or other
subordinate mortgages) for a period of months not to exceed six (6) months
(‘the
Mortgage Reimbursement Provision").
-3-
Reimbursement
for each such payment will be made on the first day of the month immediately
following the month in which the monthly mortgage payment is paid. In the
event
that, at the expiration of the six (6) month period described above, Executive
has not yet received a bona fide offer to purchase Executive’s Atlanta, Georgia
residence for at least $817,500, then Executive may request that Charter
extend
the time period for the Mortgage Reimbursement Provision until Executive
sells
his Atlanta, Georgia residence or until the sum of the mortgage payments
made
during the Extension Period equals Fifty Thousand Dollars ($50,000), whichever
first occurs (the "Extension Period").
(6) In
the
event that, while employed by Charter, Executive sells his principal residence
in Atlanta, Georgia in an arms length transaction for less than $817,500,
then
Charter will pay Executive, sixty (60) days after the date of the sale,
the
difference between the $817,500 and the price at which Executive sold such
residence, not to exceed the sum of Fifty Thousand Dollars ($50,000)(the
"Loss
on Sale"). The Loss on Sale is subject to reduction as follows: All amounts
paid
by Charter during the Extension Period under Section 2.1 (c)(5) shall serve
to
reduce the amount payable as a Loss on Sale under this Section on a dollar
per
dollar basis.
(7) In
order
to be eligible to receive the benefits specified in this Section 2.1 (c),
Executive must be employed by Charter and must list his principal residence
in
Atlanta Georgia for sale in accordance with Charter’s relocation program not
later than March 15, 2006, and act in good faith to make reasonable efforts
to
promptly sell his Atlanta residence. However, in no case shall "reasonable
efforts" be deemed to require that Executive would accept an offer to purchase
the residence that would necessitate vacating the residence prior to June
1,
2006, nor accepting an offer for less than $767,500.
2.2 Incentive
Compensation.
(a) Bonus
Plan. During
Executive’s employment, Executive shall be entitled to participate in an
incentive bonus program established by the Board to measure and reward
management for the financial performance of Charter that applies to senior
executive officers of Charter generally, with a target bonus percentage
for the
2006 Executive Bonus Plan of up to seventy percent (70%) of Salary. In
all
cases, the payment of any incentive compensation shall be at the discretion
of
the Board, which may consider any factors it deems relevant, including
the
assessment of the performance of Executive and Charter during the relevant
time
period, provided the criteria used to determine whether Executive should
receive
a bonus under the plan shall be substantially consistent with those used
to
determine whether another senior executive participating in that same
plan
receives a bonus under the plan. The terms of any incentive compensation
or
bonus plan and any payouts or awards thereunder shall be established
and
determined from time to time by the Board in its discretion. In no event,
however, shall payment of any such amount be made later than two and
one-half
months after the end of the calendar year and the amount otherwise was
determined to be payable. Participation will begin in 2006, with no partial
pro
ration for 2006. Nothing in this paragraph shall be construed to entitle
Executive to participate in any special incentive or bonus plan that
is not a
plan or program generally applicable to other senior executives, or that
may be
developed by the Board for the President and/or Chief Executive Officer,
the
Chief Operating Officer and/or another specific executive officer of
Charter
(unless specifically designated as a participant in such plan by the
Board, in
their sole discretion).
-4-
(b) Cash
Award Plan And Equivalent Benefit.
Executive will participate in the Charter Communications Inc. 2005 Executive
Cash Award Plan ("Cash Award Plan"), commencing in 2006, and contributions
will
be made for 2006 and thereafter at 20% of Executive's Base Salary as and
to the
extent called for by the Cash Award Plan. No contributions will be made
to
Executive's account under the Cash Award Plan at, or for periods of time
prior
to, the time of initial participation in the Cash Award Plan. However,
although
not part of the Cash Award Plan, Charter will in addition provide to Executive
the same additional benefit Executive would have been entitled to receive
under
the Cash Award Plan if Executive had participated in the Cash Award Plan
commencing at or about the time of its inception in 2005, rather than starting
in 2006 (based upon the assumption that Executive’s Base Salary at the time of
initial participation would have been $500,000). The payment of this additional
benefit will be subject to, and made upon, the same terms and conditions
as
payment of any benefit under the Cash Award Plan, and shall be paid only
as and
when the same would otherwise be payable under the Cash Award Plan. In
case of
any dispute over the meaning and terms of this provision, the terms applicable
to the Cash Award Plan shall control.
2.3. Equity
Awards.
(a) Restricted
Stock.
(1) On
the
date Executive starts employment with Charter, Executive shall be granted
an
award of 50,000 restricted shares of Charter common stock upon and subject
to
the terms of the Charter Communications, Inc. 2001 Stock Incentive Plan
(the
"Stock Incentive Plan") and the standard restricted stock agreement issued
under
that Stock Incentive Plan. These restricted shares will vest, during Executive’s
employment, annually in equal installments over a three (3) year time period
from the grant date.
(2) During
Executive’s employment, Executive will be treated on an equivalent basis with
other Executive Vice Presidents at the same reporting level as Executive
with
respect to the right to participate in any types of major non-performance
based
awards of restricted stock or similar equity participations made after
the
Effective Date, excluding situations where awards of restricted stock or
similar
equity participations are made as part of an offer of employment to a new
executive, or where a special plan or special award is granted or made
available
by the Board or the CEO to a single executive.
(b) Stock
Options.
On the
Effective Date, Executive shall be granted options to purchase 1,000,000
shares
of Charter common stock pursuant to and under the terms of the Stock Incentive
Plan and the standard stock option agreement issued under that plan. In
addition, Executive will receive, in the first quarter of 2006, additional
options to purchase 145,800 shares of Charter common stock pursuant to
and under
the terms of the Stock Incentive Plan and the standard stock option agreement
issued under that plan. These options will vest, during Executive’s employment,
annually in four (4) equal annual installments over a four (4) year time
period
from the grant date. The option price shall be the fair market value for
the
shares as of the grant date as determined according to Charter’s standard
practices.
(c) Performance
Shares. Executive
will be granted, in the first quarter of 2006, an award of 83,700 performance
shares under and upon the terms of the Incentive Stock Plan, which Executive
will be eligible to earn on the same terms that apply to other executives
generally under that plan. For purposes of this participation, Executive
will be
eligible to earn these shares over the three (3)
-5-
year
performance cycle January 2006-December 2008, based on performance against
objective performance criteria established by the Board and applicable
to other
senior executive participants.
(d) Long
Term Incentive Plan. Executive
will participate in Charter’s current Long Term Incentive Plan at a level
commensurate with other Executive Vice Presidents at the same level receiving
future option, performance share, restricted share and/or long-term incentive
compensation as determined by the Board in its discretion and excluding
situations where awards of restricted stock and/or options are made as
part of
an offer of employment to a new executive, or where a special plan or special
award is granted or made available by the Board or the CEO to a single
executive.
2.4 Welfare
And Other Benefits. During
Executive’s employment, Executive will be permitted to participate in such
pension, profit sharing, life insurance, disability insurance, hospitalization,
major medical, directors and officers indemnification or insurance policies,
and
other employee benefit plans of Charter that may be in effect from time
to time
generally for other senior executives of Charter having the same pay grade
as
Executive, all to the extent Executive is eligible under the terms of such
plans
(collectively, the "Benefits"). The Benefits shall be subject to change
and
discontinuation from time to time as the same may be changed or discontinued
as
to Charter employees in the same pay grade as Executive and/or Company
employees
generally. In addition, Charter will reimburse Executive for the cost of
continuing Executive’s existing family health insurance coverage with
Executive’s current employer under COBRA for coverage for the time period
between the termination of Executive’s present employment outside of Charter (or
January 15, 2006, whichever is later), and the earliest date on which Executive
and Executive’s family become eligible for coverage under Charter’s group health
insurance plan; provided Executive timely elects COBRA continuation
coverage.
2.5. Business
Expenses and Perquisites. During
Executive’s employment, Charter will
promptly reimburse Executive (or pay directly to the supplier of services)
for
all reasonable and necessary out-of-pocket expenses actually incurred by
Executive in connection with the performance of Executive's duties hereunder,
(including without limitation, appropriate business entertainment activities,
expenses incurred by Executive in attending approved conventions, seminars,
and
other business meetings, and promotional activities); in each case subject
to
Executive's furnishing Charter with evidence reasonably satisfactory to
Charter
(such as receipts) substantiating the claimed expenditures (such expenses
being
commensurate with the office and position of Executive and within budgetary
limitations), subject to compliance with the terms of any expense reimbursement
policy from time to time in effect (including with respect to pre-approvals),
and subject to Executive providing Charter with such other information
and
documentation as may be necessary or required by Charter to deduct such
expenses
for purposes of the United States Internal Revenue Code of 1986, as amended
(the
"Code"). All such payments will be made no later than two and one-half
months
after the end of the calendar year in which Executive became entitled to
receive
such payment.
3. Facilities
and Expenses. During
Executive’s employment, Charter will furnish Executive office space, equipment,
supplies, and such other facilities and personnel as Charter deems necessary
or
appropriate for the performance of Executive’s duties under this Agreement.
Charter will pay Executive’s dues in such professional organizations as the
President and/or Chief Executive Officer and/or Chief Operating Officer
deems
appropriate.
4.
Vacations
and Holidays. Executive
will be entitled to paid vacation in accordance with the vacation policies
of
Charter in effect for its executive officers from time to time. Vacation
must be
taken by
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Executive
at such time or times as approved by the President and/or Chief Executive
Officer and/or Chief Operating Officer and/or the designee thereof. Executive
will also be entitled to the paid holidays (without additional compensation)
as
and to the extent set forth in Charter’s policies as the same may change from
time to time for employees generally.
5. Termination.
5.1. Events
of Termination.
Executive’s employment, Salary, Benefits, and incentive compensation, and any
and all other rights of Executive under this Agreement (excluding accrued
rights
and benefits), will terminate prior to the expiration of the Term specified
in
Section 1.2:
|
(a)
|
upon
the death of Executive;
|
|
(b)
|
upon
the Disability of Executive (as defined in Section 5.2)
immediately
upon notice from either party to the
other;
|
|
(c)
|
for
Cause (as defined in Section 5.3), immediately upon notice
from
Charter to Executive, or at such later time as such notice may
specify;
|
|
(d)
|
without
Cause (as defined in Section 5.3), immediately upon notice
from
Charter to Executive, or at such later time as such notice may
specify;
|
|
(e)
|
for
Good Reason (as defined in Section 5.4) upon not less
than thirty
days’ (nor more than ninety (90) days) prior notice from Executive
to
Charter; or
|
|
(f)
|
without
Good Reason, immediately upon notice from Executive to
Charter.
|
5.2. Definition
of "Disability."
For
purposes of Section 5.1, and this Agreement, Executive will be deemed
to
have a "Disability" if, due to illness, injury or a physical or medically
recognized mental condition, (a) Executive is unable to perform Executive’s
duties under this Agreement with reasonable accommodation for 120 consecutive
days, or 180 days during any twelve month period, as determined in accordance
with this Section 5.2, or (b) Executive is considered disabled for
purposes
of receiving / qualifying for long term disability benefits under any group
long
term disability insurance plan or policy offered by Charter in which Executive
participates. The Disability of Executive will be determined by a medical
doctor
selected by written agreement of Charter and Executive upon the request
of
either party by notice to the other, or (in the case of and with respect
to any
applicable long term disability insurance policy or plan) will be determined
according to the terms of the applicable long term disability insurance
policy /
plan. If Charter and Executive cannot agree on the selection of a medical
doctor, each of them will select a medical doctor and the two medical doctors
will select a third medical doctor who will determine whether Executive
has a
Disability. The determination of the medical doctor selected under this
Section 5.2 will be binding on both parties. Executive must submit
to a
reasonable number of examinations by the medical doctor making the determination
of Disability under this Section 5.2, and to other specialists designated
by such medical doctor, and Executive hereby authorizes the disclosure
and
release to Charter of such determination and all supporting medical records.
If
Executive is not legally competent, Executive’s legal guardian or duly
authorized attorney-in-fact will act in Executive’s stead under this
Section 5.2 for the purposes of submitting Executive to the examinations,
and providing the authorization of disclosure, required under this
Section 5.2.
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5.3. Definition
of "Cause."
For
purposes of Section 5.1, and this Agreement, the term "Cause" means:
(a) Executive’s
breach of a material obligation or representation under this Agreement
or breach
of any fiduciary duty to Charter; or any act of fraud or knowing
misrepresentation or concealment on behalf of or to Charter or the Board
of
Directors;
(b) Executive’s
failure to adhere in any material respect to (i) any Company Code of Conduct
in
effect from time to time and applicable to officers and/or employees generally,
or (ii) any written Company policy, if such policy is material to the effective
performance by Executive of the Executive’s duties under this Agreement, and if
Executive has been given a reasonable opportunity to cure this failure
to comply
within a period of time which is reasonable under the circumstances but
not more
than the thirty (30) day period after written notice of such failure is
provided
to Executive; provided that if Executive cures this failure to comply with
such
a policy and then fails again to comply with the same policy, no further
opportunity to cure that failure shall be required;
(c)
Executive’s
failure or refusal to perform any lawful duty or assignment; or the
appropriation (or attempted appropriation) of a material business opportunity
of
the Company, including attempting to secure or securing any personal profit
in
connection with any transaction entered into on behalf of the Company (other
than through stock options, bonuses and other incentives provided by Charter
to
Executive);
(d)
Executive’s misappropriation (or attempted misappropriation) of any of the
Company’s funds or property; or any breach of fiduciary duty to the Company or
any plan or program sponsored by the Company;
(e) Executive’s
conviction of, the entering of a guilty plea or plea of nolo
contendere or
no
contest (or the equivalent), or entering into any pretrial diversion program
or
agreement or suspended imposition of sentence, with respect to either a
felony
or a crime that adversely affects the Company or its reputation; or the
institution of criminal charges against Executive, which are not dismissed
within sixty (60) days after institution, for fraud, embezzlement, any
offense
involving dishonesty or constituting a breach of trust, or any felony (including
without limitation a crime in any jurisdiction other than the United States
or
any state thereof in which Company does business which would constitute
such a
felony under the laws of the United States or any state thereof);
(f) Executive’s
admission of liability of, or finding of liability for, the violation of
any
"Securities Laws." As used herein, the term "Securities Laws" means any
federal
or state law, rule or regulation governing generally the issuance or exchange
of
securities, including without limitation the Securities Act of 1933, the
Securities Exchange Act of 1934 and the rules and regulations promulgated
thereunder;
(g) conduct
by Executive in connection with Executive’s employment that constitutes gross
neglect of any duty or responsibility, willful misconduct, or recklessness;
(h)
Executive’s
illegal possession or use of any controlled substance, or excessive use
of
alcohol at a work function, in connection with Executive’s duties, or on Company
premises;
-8-
"excessive"
meaning either repeated unprofessional use or any single event of consumption
giving rise to significant intoxication or unprofessional behavior;
or
(i)
Executive’s
material violation of any federal, state or local law that may result in
a
direct or indirect financial loss to the Company or damage the Company’s
reputation.
If
Executive commits or is charged with committing any offense of the character
or
type specified in Section 5.3 (e), (f) or (i) above, then Charter at its
option
may suspend the Executive with or without pay. If the Executive subsequently
is
convicted of, pleads guilty or nolo
contendere
(or
equivalent plea) to, or enters into any type of suspended imposition of
sentence
or pretrial diversion program with respect to, any such offense (or any
matter
that gave rise to the suspension), the Executive shall immediately repay
any and
all other compensation or other amounts paid hereunder from the date of
the
suspension, and (x) (unless otherwise precluded by or because of the terms
of
the applicable plan) any of the restricted stock or options that vested
after
the date of such suspension shall forthwith be cancelled, and (y) if any
such
stock options, the shares subject thereto, or the restricted shares that
vested
during such suspension of Executive’s employment have theretofore been sold by
Executive, the cash value thereof shall be repaid to Charter immediately.
5.4. Definition
of "Good Reason."
For
purposes of Section 5.1, and this Agreement, the term "Good Reason" shall
mean
(a) any reduction in Executive’s Salary except as permitted hereunder, (b) with
respect to the target bonus percentage specified in Section 2.2 (a), a
reduction
in the target bonus percentage assigned to the Executive for a plan year
from
the target bonus percentage for such plan assigned to Executive in the
immediately preceding year (it being understood that, in applying this
provision
to the 2007 plan year the target bonus percentage assigned to the Executive
in
the prior year shall be 70%), (c) without Executive’s consent, a change in
reporting structure such that Executive no longer reports directly to the
Chief
Executive Officer (or equivalent position, if there is no Chief Executive
Officer) or a transfer or reassignment to another executive of major
responsibilities assigned to Executive that are part of the responsibilities
and
functions assigned to a chief financial officer of a corporation after
those
responsibilities and functions have been assigned to Executive; or (d)
instruction to relocate Executive’s primary workplace to a location that is more
than fifty (50) miles from the office where Executive is initially assigned
to
work as Executive’s principal office, or outside the greater metropolitan area
where such office is located, whichever is greater; in each case if Executive
objects in writing within 10 days, unless Charter retracts and/or rectifies
the
reduction in Salary, the change in reporting structure, the transfer or
reassignment of major responsibilities, or the instruction to relocate,
within
30 days following Charter’s receipt of timely written objection from Executive.
5.5. Termination
Pay.
Effective upon the termination of Executive’s employment, Charter will be
obligated to pay Executive (or, in the event of Executive’s death, the
Executive’s designated beneficiary as defined below) only such compensation as
is provided in this Section 5.5 and in Section 4, except to the extent
otherwise
provided for in any Charter stock incentive or stock option plan, or any
Charter
cash award plan (including, among others, the 2005 Executive Cash Award
Plan),
approved by the Board. For purposes of this Section 5.5, Executive’s
designated beneficiary will be such individual beneficiary or trust, located
at
such address, as Executive may designate by notice to Charter from time
to time
or, if Executive fails to give notice to Charter of such a beneficiary,
Executive’s estate. Notwithstanding the preceding sentence, Charter will have no
duty, in any circumstances, to attempt to open an estate on behalf of Executive,
to determine whether any beneficiary designated by Executive is alive or
to
ascertain the
-9-
address
of any such beneficiary, to determine the existence of any trust, to
determine
whether any person purporting to act as Executive’s personal representative (or
the trustee of a trust established by Executive) is duly authorized to
act in
that capacity, or to locate or attempt to locate any beneficiary, personal
representative, or trustee.
5.5.1. Termination
by Executive for Good Reason or by Charter without Cause.
If prior
to expiration of the Term, Executive terminates Executive’s employment for Good
Reason, or Charter terminates Executive’s employment other than for Cause (but
not because of the Disability or death of Executive), Executive will be
entitled
to receive on and subject to the conditions of this Agreement:
(a) Executive’s
then-existing Salary for the remainder of the Term specified in Section
1.2, or
a period of twelve (12) months, whichever is greater. Subject to the provisions
of Section 5.6, this amount (the "Separation Payment") will be paid over
the
period of time used to calculate the Separation Payment (i.e., the balance
of
the Term at the time employment terminated or twelve (12) months, whichever
was
greater) in equal bi weekly installments on the Company’s regular pay days for
executives, and commencing with the first payday after all conditions in
Section
5.6 are satisfied; provided that, to the extent required to avoid the tax
consequences of Section 409A of the Code, the first payment shall cover
all
payments scheduled to be made to Executive during the first six (6) months
after
the date Executive’s employment terminates, and the first such payment shall be
delayed until the day after the six (6) month anniversary of the date
Executive’s employment terminates.
(b) the
amount of Executive’s incentive compensation for the year during which the
termination is effective (prorated for the period from the beginning of
the year
in question until the effective date of termination) if and to the extent
a
bonus otherwise is payable under the terms of the applicable incentive
bonus
plan as determined by the Board, based upon results for the entire year.
This
amount will be payable as and when incentive compensation under such plan
for
the year in question is paid to other participants generally but not later
than
two and one-half months after the end of the calendar year in which the
termination is effective. The Board shall determine the amount of any such
bonus
and/or the extent to which any such bonus has been earned under the plan,
in its
sole discretion, considering results for the entire year and not just the
period
of Executive’s employment;; provided that, to the extent required to avoid the
tax consequences of Section 409A of the Code, this payment shall be delayed
until the day after the six (6) month anniversary of the date Executive’s
employment terminates.
(c) all
reasonable expenses Executive has incurred in the pursuit of Executive's
duties
under this Agreement through the date of termination which are payable
under and
in accordance with this Agreement, which amount will be paid not later
than two
and one-half months after the end of the calendar year during which Executive’s
employment terminated;
(d) a
lump
sum payment (net after deduction of taxes and other required withholdings)
equal
to (i) the greater of the number of full months remaining in the Term at
the
time Executive’s employment terminated, or twelve (12), times (ii) the monthly
cost, at the time Executive’s employment terminated, for Executive to receive
under COBRA the paid coverage for health, dental and vision benefits then
being
provided for Executive at the Company’s cost at the time Executive’s employment
terminated. This amount will be paid at the same time the payment is made
under
Section 5.5.1 (a), and will not take into account future increases in costs
during the applicable time period; and
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(e)
to
the
extent authorized and permitted by the terms of the applicable plan, any
stock
options and restricted stock previously awarded to Executive will continue
to
vest under such plan for the period of time immediately following termination
of
Executive’s employment that is equal to the period of time used to calculate the
payment under Section 5.5.1 (a). This period of time qualifies, in the
case of a
payment under Section 5.5.1, as the period of time during which Executive
is
receiving severance for purposes of Section 5.4 of the Stock Incentive
Plan, as
amended, and any applicable stock option or restricted stock agreement
signed
pursuant to a grant under such plan (and the payment specified in Section
5.5.1
(a) above qualifies as "severance" for purposes of Section 5.4 of the Stock
Incentive Plan.
Executive
shall be entitled to no other compensation or benefits except as expressly
provided in this paragraph.
5.5.2. Termination
by Executive without Good Reason or by Charter for Cause.
If prior
to the expiration of the Term or thereafter, Executive terminates Executive’s
employment prior to expiration of the Term without Good Reason or if Charter
terminates this Agreement for Cause, Executive will be entitled to receive
Executive’s then-existing Salary only through the date such termination is
effective and will be reimbursed for all reasonable expenses Executive
has
incurred in the pursuit of Executive's duties under this Agreement through
the
date of termination which are payable under and in accordance with this
Agreement. Any unvested options and shares of restricted stock shall terminate
as of the date of termination unless otherwise provided for in any applicable
plan or award agreement. Executive shall be entitled to no other compensation
or
benefits except as expressly provided in this paragraph.
5.5.3. Termination
upon Disability.
If prior
to the expiration of the Term, Executive’s employment is terminated by either
party as a result of Executive’s Disability, as determined under
Section 5.2, Charter will pay Executive his or her then-existing
Salary
through the remainder of the calendar month during which such termination
is
Effective and for the lesser of (i) six consecutive months thereafter,
or (ii)
the date on which any disability insurance benefits commence under any
disability insurance coverage furnished by Charter to Executive. Any unvested
options and shares of restricted stock shall terminate upon a termination
for
Disability unless otherwise provided for in any applicable plan or award
agreement. Executive shall be entitled to no other compensation or benefits
except as expressly provided in this paragraph; provided that, to the extent
required to avoid the tax consequences of Section 409A of the Code, the
first
payment shall cover all payments scheduled to be made to Executive during
the
first six (6) months after the date Executive’s employment terminates, and the
first such payment shall be delayed until the day after the six (6) month
anniversary of the date Executive’s employment terminates.
5.5.4. Termination
upon Death.
If
Executive’s employment terminates because of Executive’s death, Executive will
be entitled to receive Executive’s then-existing Salary through the end of the
calendar month in which the death occurs and shall be paid for all reasonable
expenses Executive has incurred in the pursuit of Executive's duties under
this
Agreement through the date of termination which are payable under and in
accordance with this Agreement. Any unvested options and shares of restricted
stock shall terminate upon Death unless otherwise provided for in any applicable
plan or award agreement. Executive shall be entitled to no other compensation
or
benefits except as expressly provided in this paragraph.
5.5.5. Benefits.
Except
as otherwise required by law, Executive’s accrual of, or participation in plans
providing for, the Benefits will cease at the effective date of the termination
of employment, and Executive will be entitled to accrued benefits pursuant
to
such plans only as provided in such plans.
-11-
5.6. Conditions
To Payments.
To be
eligible to receive (and continue to receive) and retain the payments and
benefits described in Sections 5.5.1 (a) - (e), Executive must comply with
the
provisions of Sections 6 and 7 and first execute and deliver to Charter,
and
comply with, an agreement, in form and substance satisfactory to Charter,
effectively releasing and giving up all claims Executive may have against
Charter or any of its subsidiaries or affiliates (and each of their respective
controlling shareholders, employees, directors, officers, plans, fiduciaries,
insurers and agents) arising out of or based upon any facts or conduct
occurring
prior to that date. The agreement will be prepared by Charter, will be
based
upon the standard form (if any) then being utilized by Charter for executive
separations when severance is being paid, and will be provided to Executive
at
the time Executive’s employment is terminated or as soon as administratively
practicable thereafter (not to exceed five (5) business days). The agreement
will require Executive to consult with Company representatives, and voluntarily
appear as a witness for trial or deposition (and to prepare for any such
testimony) in connection with, any claim which may be asserted by or against
Charter, any investigation or administrative proceeding, any matter relating
to
a franchise, or any business matter concerning Charter or any of its
transactions or operations. A copy of the current standard form being used
by
Charter for executive separations when severance is being paid has been
provided
to Executive or is attached to this Agreement as Exhibit 1. It is understood
that the final document may not contain provisions specific to the release
of a
federal age discrimination claim if Executive is not at least forty (40)
years
of age, and may be changed as Charter’s chief legal counsel considers necessary
and appropriate to enforce the same, including provisions to comply with
changes
in applicable laws and recent court decisions. Payments under and/or benefits
provided by Sections 5.5.1 (a) - (e) will not be made unless and until
Executive
executes and delivers that agreement to Charter within twenty-one (21)
days
after delivery of the document (or such lesser time as Charter’s chief legal
counsel may specify in the document) and all conditions to the effectiveness
of
that agreement and the releases contemplated thereby have been satisfied
(including without limitation the expiration of any applicable revocation
period
without revoking acceptance). It is understood and agreed that if a form
of
agreement called for by this Section 5.6 is not presented to Executive
within
forty-five (45) days after Executive’s employment terminated, then the
requirement that Executive executes and delivers that agreement will be
deemed
to be satisfied.
6. Non-Disclosure
Covenant; Employee Inventions.
6.1. Acknowledgments
by Executive.
Executive acknowledges that (a) during the Employment Term and as
a part of
Executive’s employment, Executive will be afforded access to Confidential
Information (as defined below); (b) public disclosure of such Confidential
Information could have an adverse effect on the Company and its business;
(c) because Executive possesses substantial technical expertise
and skill
with respect to the Company’s business, Charter desires to obtain exclusive
ownership of each invention by Executive, and Charter will be at a substantial
competitive disadvantage if it fails to acquire exclusive ownership of
each
invention by Executive; and (d) the provisions of this Section 6
are
reasonable and necessary to prevent the improper use or disclosure of
Confidential Information and to provide Charter with exclusive ownership
of all
inventions and works made or created by Executive.
-12-
6.2. Confidential
Information.
(a) The
Executive acknowledges that during the Term Executive will have access
to and
may obtain, develop, or learn of Confidential Information (as defined below)
under and pursuant to a relationship of trust and confidence.
The
Executive shall hold such Confidential Information in strictest confidence
and
never at any time, during or after Executive’s employment terminates, directly
or indirectly use for Executive’s own benefit or otherwise (except in connection
with the performance of any duties as an employee hereunder) any Confidential
Information, or divulge, reveal, disclose or communicate any Confidential
Information to any unauthorized person or entity in any manner whatsoever.
As
used
in
this
Agreement, the term "Confidential Information" shall include, but not be
limited
to, any of the following information relating to Company learned by the
Executive during the Term or as a result of Executive’s employment with
Charter:
(a) information
regarding the Company’s business proposals, manner of the Company’s operations,
and methods of selling or pricing any products or services;
(b) the
identity of persons or entities actually conducting or considering conducting
business with the Company, and any information in any form relating to
such
persons or entities and their relationship or dealings with the Company
or its
affiliates;
(c) any
trade
secret or confidential information of or concerning any business operation
or
business relationship;
(d) computer
databases, software programs and information relating to the nature of
the
hardware or software and how said hardware or software are used in combination
or alone;
(e) information
concerning Company personnel, confidential financial information, customer
or
customer prospect information, information concerning subscribers, subscriber
and customer lists and data, methods and formulas for estimating costs
and
setting prices, engineering design standards, testing procedures, research
results (such as marketing surveys, programming trials or product trials),
cost
data (such as billing, equipment and programming cost projection models),
compensation information and models, business or marketing plans or strategies,
deal or business terms, budgets, vendor names, programming operations,
product
names, information on proposed acquisitions or dispositions, actual performance
compared to budgeted performance, long-range plans, internal financial
information (including but not limited to financial and operating results
for
certain offices, divisions, departments, and key market areas that are
not
disclosed to the public in such form), results of internal analyses, computer
programs and programming information, techniques and designs, and trade
secrets;
(f)
information concerning the Company’s employees, officers, directors and
shareholders; and
(g)
any
other trade secret or information of a confidential or proprietary
nature.
Executive
shall not make or use any notes or memoranda relating to any Confidential
Information except for the benefit of the Company, and will, at Charter’s
request, return each original and every copy of any and all notes, memoranda,
correspondence, diagrams or other records, in written or other form, that
Executive may at any time have within his possession or control that contain
any
Confidential Information.
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Notwithstanding
the foregoing, Confidential Information shall not include information which
has
come within the public domain through no fault of or action by Executive
or
which has become rightfully available to Executive on a non-confidential
basis
from any third party, the disclosure of which to Executive does not violate
any
contractual or legal obligation such third party has to the Company or
its
affiliates with respect to such Confidential Information. None of the foregoing
obligations and restrictions applies to any part of the Confidential Information
that Executive demonstrates was or became generally available to the public
other than as a result of a disclosure by Executive or by any other person
bound
by a confidentiality obligation to the Company in respect of such Confidential
Information.
Executive
will not remove from the Company’s premises (except to the extent such removal
is for purposes of the performance of Executive’s duties at home or while
traveling, or except as otherwise specifically authorized by Charter) any
Company document, record, notebook, plan, model, component, device, or
computer
software or code, whether embodied in a disk or in any other form (collectively,
the "Proprietary Items"). Executive recognizes that, as between Charter
and
Executive, all of the Proprietary Items, whether or not developed by Executive,
are the exclusive property of the Company. Upon termination of Executive’s
employment by either party, or upon the request of Charter during the Term,
Executive will return to Charter all of the Proprietary Items in Executive’s
possession or subject to Executive’s control, and Executive shall not retain any
copies, abstracts, sketches, or other physical embodiment of any of the
Proprietary Items.
6.3. Proprietary
Developments.
6.3.1. Any
and
all inventions, products, discoveries, improvements, processes, methods,
computer software programs, models, techniques, or formulae (collectively,
hereinafter referred to as "Developments"), made, conceived, developed,
or
created by Executive (alone or in conjunction with others, during regular
work
hours or otherwise) during Executive’s employment, which may be directly or
indirectly useful in, or relate to, the business conducted or to be conducted
by
the Company will be promptly disclosed by Executive to Charter and shall
be
Charter’s exclusive property. The term "Developments" shall not be deemed to
include inventions, products, discoveries, improvements, processes, methods,
computer software programs, models, techniques, or formulae which were
in the
possession of Executive prior to the Term. Executive hereby transfers and
assigns to Charter all proprietary rights which Executive may have or acquire
in
any Developments and Executive waives any other special right which the
Executive may have or accrue therein. Executive will execute any documents
and
to take any actions that may be required, in the reasonable determination
of
Charter’s counsel, to effect and confirm such assignment, transfer and waiver,
to direct the issuance of patents, trademarks, or copyrights to Charter
with
respect to such Developments as are to be Charter’s exclusive property or to
vest in Charter title to such Developments; provided, however, that the
expense
of securing any patent, trademark or copyright shall be borne by
Charter.
The
parties agree that Developments shall constitute Confidential
Information.
6.3.2. "Work
Made for Hire."
Any work
performed by Executive during Executive's employment with Charter shall
be
considered a "Work Made for Hire" as defined in the U.S. Copyright laws,
and
shall be owned by and for the express benefit of Charter. In the event
it should
be established that such work does not qualify as a Work Made for Hire,
Executive agrees to and does hereby assign to Charter all of Executive’s right,
title, and interest in such work product including, but not limited to,
all
copyrights and other proprietary rights.
-14-
6.3.3. Cooperation.
Both
during the Term and thereafter, Executive shall fully cooperate with Company
in
the protection and enforcement of any intellectual property rights that
relate
to services performed by Executive for Company, whether under the terms
of this
Agreement or prior to the execution of this Agreement. This shall include
without limitation executing, acknowledging, and delivering to Company
all
documents or papers that may be necessary to enable Company to publish
or
protect such intellectual property rights. Charter shall bear all costs
in
connection with Executive's compliance with the terms of this
section.
7. Non-Competition
and Non-Interference.
7.1. Acknowledgments
by Executive.
Executive acknowledges and agrees that: (a) the services to be performed
by
Executive under this Agreement are of a special, unique, unusual, extraordinary,
and intellectual character; (b) the Company competes with other businesses
that
are or could be located in any part of the United States; and (c) the provisions
of this Section 7 are reasonable and necessary to protect the Company’s
business and lawful protectable interests, and do not impair Executive’s ability
to earn a living.
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7.2. Covenants
of Executive.
For
purposes of this Section 7.2, the term "Restricted Period" shall mean the
period
commencing on the Effective Date and terminating on the later of (i) the
second
anniversary (or, in the case of Section 7.2 (a), the first anniversary),
of the
date Executive’s employment terminated, or (ii) the end of the Term. In
addition, the "Restricted Period" also shall encompass any period of time
from
whichever anniversary date is applicable until and ending on the last date
Executive is to be paid any payment under Section 5.5. In consideration
of the
acknowledgments by Executive, and in consideration of the compensation
and
benefits to be paid or provided to Executive by Charter, Executive covenants
and
agrees that during the Restricted Period, the Executive will not, directly
or
indirectly, for Executive’s own benefit or for the benefit of any other person
or entity other than the Company:
(a) in
the
United States or any other country or territory where the Company then
conducts
its business: engage in, operate, finance, control or be associated with
a
"Competitive Business" (defined below); serve as an officer or director
of a
Competitive Business (regardless of where Executive then lives or conducts
such
activities); perform any work as an employee, consultant, contractor, or
in any
other capacity with, a Competitive Business; directly or indirectly invest
or
own any interest in a Competitive Business (regardless of where Executive
then
lives or conducts such activities); or directly or indirectly provide any
services or advice to a any business, person or entity who or which is
engaged
in a Competitive Business. A "Competitive Business" is any business, person
or
entity who or which, anywhere within that part of the United States, or
that
part of any other country or territory, where the Company conducts business:
owns or operates a cable television system, provides direct television
or any
satellite-based, telephone-based internet based or wireless system for
delivering television, music or other entertainment programming, provides
telephony services using cable connection, provides data or internet service,
or
offers, provides, markets or sells any service or product of a type that
is
offered or marketed by or directly competitive with a service or product
offered
or marketed by the Company at the time Executive’s employment terminates; or who
or which in any case is preparing or planning to do so. The provisions
of this
Section 7.2(a) shall not be construed or applied (i) so as to prohibit
Executive
from owning not more than one percent (1%) of any class of securities that
is
publicly traded on any national or regional securities exchange, as long
as
Executive’s investment is passive and Executive does not lend or provide any
services or advice to such business or otherwise violate the terms of this
Agreement in connection with such investment; or (ii) so as to prohibit
Executive from working as an employee in the cable television business
for a
company/business that owns or operates cable television franchises (by
way of
current example, Cox or Comcast), provided that the company/business is
not
providing cable services in any political subdivision/ geographic area
where the
Company has a franchise or provides cable services and the company/business
is
otherwise not engaged in a Competitive Business, and provided Executive
does not
otherwise violate the terms of this Agreement in connection with that work;
(b) contact,
solicit or provide any service to any person or entity that was a customer
franchisee, or prospective customer of the Company at any time during
Executive’s employment (a prospective customer being one to whom the Company had
made a business proposal within twelve (12) months prior to the time Executive’s
employment terminated); or directly solicit or encourage any customer,
franchisee or subscriber of the Company to purchase any service or product
of a
type offered by or competitive with any product or service provided by
the
Company, or to reduce the amount or level of business purchased by such
customer, franchisee or subscriber from the Company; or take away or procure
for
the benefit of any competitor of the Company, any business of a type provided
by
or competitive with a product or service offered by the Company; or
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(c) solicit
or recruit for employment, any person or persons who are employed by Charter
or
any of its subsidiaries or affiliates, or who were so employed at any time
within a period of six (6) months immediately prior to the date Executive’s
employment terminated, or otherwise interfere with the relationship between
any
such person and the Company; nor will the Executive assist anyone else
in
recruiting any such employee to work for another company or business or
discuss
with any such person his or her leaving the employ of the Company or engaging
in
a business activity in competition with the Company. This provision shall
not
apply to secretarial, clerical, custodial or maintenance employees;
(d) perform
any work as an employee, consultant, contractor, or in any other capacity
with,
directly or indirectly invest or own any interest in, serve as an officer,
director or advisor or consultant to, or directly or indirectly provide
any
services or advice to Cequel III (or any of its affiliates, or any entity
invested in or owned or controlled by Cequel III or any of its principals,
excluding publicly traded corporations in which such person(s) or entities
own
or control less than a 5% interest), or any company or business in which
Cequel
III or any of Cequel III’s principals own an interest (other than a publicly
traded corporation in which such person(s) and entities own or control
less than
a 5% interest). It is understood that the principals of Cequel III are
Jerry
Kent and Howard Wood; or
(e) disparage
or criticize, or make any derogatory or critical statement about, Charter
or any
of its subsidiaries or affiliates, or any of their respective present or
former
directors, officers, employees, or agents.
If
Executive violates any covenant contained in this Section 7.2, then the
term of
the covenants in this Section shall be extended by the period of time Executive
was in violation of the same.
7.3. Provisions
Pertaining to the Covenants.
Executive recognizes that the existing business of the Company extends
to
various locations and areas throughout the United States and may extend
hereafter to other countries and territories and agrees that the scope
of
Section 7.2 shall extend to any part of the United States, and any other
country
or territory, where the Company operates or conducts business, or has
concrete
plans to do so at the time Executive’s employment terminates. It is agreed that
the Executive’s services hereunder are special, unique, unusual and
extraordinary giving them peculiar value, the loss of which cannot be
reasonably
or adequately compensated for by damages, and in the event of the Executive’s
breach of this Section, Charter shall be entitled to equitable relief
by way of
injunction or otherwise. If any provision of Section 6 or 7 of this Agreement
is
deemed to be unenforceable by a court (whether because of the subject
matter of
the provision, the duration of a restriction, the geographic or other
scope of a
restriction or otherwise), that provision shall not be rendered void
but the
parties instead agree that the court shall amend and alter such provision
to
such lesser degree, time, scope, extent and/or territory as will grant
Charter
the maximum restriction on Executive’s activities permitted by applicable law in
such circumstances. Charter’s failure to exercise its rights to enforce the
provisions of this Agreement shall not be affected by the existence or
non
existence of any other similar agreement for anyone else employed by
Charter or
by Charter’s failure to exercise any of its rights under any such
agreement.
7.4. Notices.
In
order to preserve Charter’s rights under this Agreement, Charter is authorized
to advise any potential or future employer, any third party with whom Executive
may become employed or enter into any business or contractual relationship
with,
and any third party whom Executive may contact for any such purpose, of
the
existence of this Agreement and its terms, and Charter shall not be liable
for
doing so.
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7.5. Injunctive
Relief and Additional Remedy.
Executive acknowledges that the injury that would be suffered by Charter
as a
result of a breach of the provisions of this Agreement (including any provision
of Sections 6 and 7) would be irreparable and that an award of monetary
damages to Charter for such a breach would be an inadequate remedy.
Consequently, Charter will have the right, in addition to any other rights
it
may have, to obtain injunctive relief to restrain any breach or threatened
breach or otherwise to specifically enforce any provision of this Agreement,
and
Charter will not be obligated to post bond or other security in seeking
such
relief. Without limiting Charter’s rights under this Section or any other
remedies of Charter, if Executive breaches any of the provisions of
Section 6 or 7, Charter will have the right to cease making any
payments
otherwise due to Executive under this Agreement.
7.6. Covenants
of Sections 6 and 7 are Essential and Independent
Covenants.
The
covenants by Executive in Sections 6 and 7 are essential elements
of this
Agreement, and without Executive’s agreement to comply with such covenants,
Charter would not have entered into this Agreement or employed Executive.
Charter and Executive have independently consulted their respective counsel
and
have been advised in all respects concerning the reasonableness and propriety
of
such covenants, with specific regard to the nature of the business conducted
by
Charter. Executive’s covenants in Sections 6 and 7 are independent
covenants and the existence of any claim by Executive against Charter,
under
this Agreement or otherwise, will not excuse Executive’s breach of any covenant
in Section 6 or 7. If Executive’s employment hereunder is terminated, this
Agreement will continue in full force and effect as is necessary or appropriate
to enforce the covenants and agreements of Executive in Sections 6
and 7.
Charter’s right to enforce the covenants in Sections 6 and 7 shall not be
adversely affected or limited by the Company’s failure to have an agreement with
another employee with provisions at least as restrictive as those contained
in
Sections 6 and 7, or by the Company’s failure or inability to enforce (or
agreement not to enforce) in full the provisions of any other or similar
agreement containing one or more restrictions of the type specified in
Sections
6 or 7 of this Agreement.
8. Executive’s
Representations And Further Agreements.
8.1. Executive
represents, warrants and covenants to Charter that:
(a) Neither
the execution and delivery of this Agreement by Executive nor the performance
of
any of Executive’s duties hereunder in accordance with the Agreement will
violate, conflict with or result in the breach of any order, judgment,
employment contract, agreement not to compete or other agreement or arrangement
to which Executive is a party or is subject;
(b) On
or
prior to the date hereof, Executive has furnished to Charter true and complete
copies of all judgments, orders, written employment contracts, agreements
not to
compete, and other agreements or arrangements restricting Executive’s employment
or business pursuits, that have current application to Executive;
(c) Executive
is knowledgeable and sophisticated as to business matters, including the
subject
matter of this Agreement, and that prior to assenting to the terms of this
Agreement, or giving the representations and warranties herein, Executive
has
been given a reasonable time to review it and has consulted with counsel
of
Executive’s choice; and
(d) Executive
will not knowingly breach or violate any provision of any law or regulations
or
any agreement to which Executive may be bound.
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(e) Executive
has not provided, nor been requested by Charter to provide, to Charter,
any
confidential or non public document or information of a former employer
that
constitutes or contains any protected trade secret, and will not use any
protected trade secrets in connection with the Executive’s
employment.
8.2. During
and subsequent to expiration of the Term, the Executive will
cooperate with Charter, and furnish any and all complete and truthful
information, testimony or affidavits in connection with any matter that
arose
during the Executive’s employment, that in any way relates to the business or
operations of the Company or any of its parent or subsidiary corporations
or
affiliates, or of which the Executive may have any knowledge or involvement;
and
will consult with and provide information to Charter and its representatives
concerning such matters. Subsequent to the Term, the parties will make
their
best efforts to have such cooperation performed at reasonable times and
places
and in a manner as not to unreasonably interfere with any other employment
in
which Executive may then be engaged. Nothing in this Agreement shall be
construed or interpreted as requiring the Executive to provide any testimony,
sworn statement or declaration that is not complete and truthful. If Charter
requires the Executive to travel outside the metropolitan area in the United
States where the Executive then resides to provide any testimony or otherwise
provide any such assistance, then Charter will reimburse the Executive
for any
reasonable, ordinary and necessary travel and lodging expenses incurred
by
Executive to do so provided the Executive submits all documentation required
under Charter’s standard travel expense reimbursement policies and as otherwise
may be required to satisfy any requirements under applicable tax laws for
Charter to deduct those expenses. Nothing in this Agreement shall be construed
or interpreted as requiring the Executive to provide any testimony or affidavit
that is not complete and truthful.
9. General
Provisions.
9.1. Binding
Effect; Delegation of Duties Prohibited.
Neither
this Agreement nor any rights or obligations of Charter under this Agreement
may
be assigned or transferred by Charter except that such Agreement, rights
and/or
obligations may be assigned or transferred pursuant to a merger or
consolidation, or the sale or liquidation of all or substantially all of
the
assets of Charter, provided that the assignee or transferee is the successor
to
all or substantially all of the assets of Charter and such assignee or
transferee assumes the liabilities, obligations and duties of Charter,
as
contained in this Agreement, either contractually or as a matter of law.
The
duties and covenants of Executive under this Agreement, being personal,
may not
be assigned or delegated except that Executive may assign payments due
hereunder
to a trust established for the benefit of Executive's family or to Executive's
estate or to any partnership or trust entered into by Executive and/or
Executive's immediate family members (meaning, Executive's spouse and lineal
descendants). Charter also shall have the right to delegate its duties
under
this Agreement and assign its rights under this Agreement to any subsidiary
or
affiliate, provided
however,
such
assignment does not render this Agreement void or unenforceable. Any actual
or
attempted delegation or assignment in contravention of this Section 9.1
shall be null and void ab
initio.
9.2. Notices.
All
notices and other communications under this Agreement must be in writing
and
will be deemed to have been duly given when (a) delivered by hand
(with
written confirmation of receipt), (b) sent by facsimile (with written
confirmation of receipt), provided that a copy is mailed by registered
mail,
return receipt requested, or (c) when received by the addressee,
if sent by
a nationally recognized overnight delivery service (receipt requested).
Notices
and other communications under this Agreement shall be sent, in the case
of
Charter to the attention of the Chairman of the Board of Directors and
General
Counsel at Charter’s principal business office and, in the case of Executive, to
the address or
-19-
facsimile
number set forth below (or to such other address or facsimile number as
Executive may designate by notice to Charter):
_________________
_________________
_________________
9.3.
Entire
Agreement; Amendments.
(a)
This
Agreement contains the entire agreement between the parties with respect
to its
subject matter and supersedes all prior oral and written communications,
agreements and understandings between the parties with respect to terms
and
conditions of employment, including, without limitation, specifically that
certain November 22, 2004 memorandum regarding severance guidelines for
executives; provided, however, that this Agreement does not cancel any
prior
award agreement entered into by Executive pursuant to or under any stock
option
or restricted stock plan, nor relieve Executive of his or her obligations
under
any agreement concerning confidentiality of information, non competition,
non
solicitation of employees or customers, non disparagement or assignment
of
inventions. Superseding such other agreements shall be deemed to not be
a
termination thereunder. To the extent any terms of this Agreement conflict
with
the terms of any prior award agreement entered into by Executive pursuant
to or
under any stock option or restricted stock plan, the terms of this Agreement
shall govern.
(b)
Neither this Agreement nor any of its terms may be amended, added to, changed
or
waived except in a writing signed by Executive and the President and/or
Chief
Executive Officer of Charter or designee thereof. Notwithstanding anything
herein to the contrary, Charter hereby reserves the right to unilaterally
amend
this Agreement as necessary to avoid the imposition of liability under
or as a
consequence of the application of the provisions of Section 409A of the
Code.
(c)
Executive shall not be entitled to, and waives any rights under or with
respect
to, severance or other benefits under any existing or future severance
plans,
policies, programs or guidelines established or published by Charter, including,
but not limited to, that certain November 22, 2004 memorandum regarding
severance guidelines for executives.
9.4. Survival,
Captions. This
Agreement shall inure to the benefit of Charter, its successors and assigns.
This Agreement shall survive the termination of Executive’s employment. The
captions used in this Agreement do not limit the scope of the provisions.
And
shall not be used to interpret the meaning of the terms of this Agreement.
Unless otherwise expressly provided, the word "including" does not limit
the
preceding words or terms.
9.5. Governing
Law; Jurisdiction and Venue.
This
Agreement is deemed to be accepted and entered into in the State of Missouri
and
shall be governed by and construed and interpreted according to the internal
laws of the State of Missouri without reference to conflicts of law principles.
In any suit to enforce this Agreement, venue and jurisdiction is proper
in the
St. Louis County Circuit Court and (if federal jurisdiction exists) the
U.S.
District Court for the Eastern District of Missouri, and Executive waives
all
objections to jurisdiction in any such forum and any defense or claim that
either such forum is not a proper forum, is not the most convenient forum,
or is
an inconvenient forum.
9.6. Severability.
If any
provision of this Agreement is held invalid or unenforceable by any court
of
competent jurisdiction, the other provisions of this Agreement will remain
in
full force and effect.
-20-
Any
provision of this Agreement held invalid or unenforceable only in part
or degree
will remain in full force and effect to the extent not held invalid or
unenforceable.
9.7 Counterparts;
Effective by Facsimile Signatures.
This
Agreement may be executed in one or more counterparts, each of which will
be
deemed to be an original copy of this Agreement and all of which, when
taken
together, will be deemed to constitute one and the same agreement. This
Agreement may be executed by facsimile signatures.
9.8. Successors;
Binding Agreement.
Subject
to the provisions of Section 9.1, this Agreement shall inure to the benefit
of
and be binding upon personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees
of
Executive and successors and assigns of Charter. Other than Company and
Executive, and, subject to Section 9.1 hereof, their respective
successors
and assigns, there are no intended beneficiaries of this Agreement.
9.9. Withholding
Taxes; Delay In Payments.
Company
may withhold from any amounts payable under this Agreement such Federal,
state
and local taxes as may be required to be withheld pursuant to any applicable
law
or regulation. In no event shall Charter be required to make, or Executive
be
required to receive, any payment called for by this Agreement if such payment
at
that time shall result in the application of the tax consequences spelled
out in
Section 409A of the Code. In that case, payment will be made at such time
as
will not result in the imposition of any adverse tax consequences spelled
out in
Section 409A of the Code.
9.10. General
Satisfaction.
Except
as otherwise specified in this Agreement, this Agreement supersedes and
replaces
any prior employment or other agreement between Executive and Charter,
and
Charter shall not have any further liability arising out or in connection
with
any such prior agreement, whether oral or written, made on or before the
Effective Time with or for the benefit of Executive.
IN
WITNESS WHEREOF,
the
parties have executed and delivered this Agreement as of the date above
first
written above.
CHARTER
COMMUNICATIONS, INC.
By:
/s/ Lynne F. Ramsey
/s/
Jeffrey T. Fisher
Jeffrey
T. Fisher
-21-
Exhibit
10.2
WAIVER
AND AMENDMENT
WAIVER
AND AMENDMENT, dated as of January 26, 2006 (this "Amendment"),
to
(a) the Senior Bridge Loan Agreement, dated as of October 17, 2005 (the
"Loan
Agreement"),
by
and among CCO HOLDINGS, LLC, a Delaware limited liability company (the
"Borrower"),
CCO
HOLDINGS CAPITAL CORP., a Delaware corporation and a wholly-owned Subsidiary
of
the Borrower (the "Guarantor"
and,
together with the Borrower, the "Loan
Parties"),
the
several banks and other financial institutions or entities from time to
time
parties thereto (the "Lenders"),
JPMORGAN CHASE BANK, N.A., as Administrative Agent (in such capacity, together
with any successor, the "Administrative
Agent"),
J.P.
MORGAN SECURITIES INC. and CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as joint
lead
arrangers and joint bookrunners, and DEUTSCHE BANK SECURITIES INC., as
documentation agent. Capitalized terms used but not defined herein shall
have
the meanings given to them in the Loan Agreement.
W
I T
N E S S E T H:
WHEREAS,
CCH II, LLC, a Delaware limited liability company and CCH II Capital Corp.,
a
Delaware corporation propose to issue at least $400.0 million of (i) senior
notes due 2013 (the
"2013 Notes"),
or
(ii) senior notes due 2010 (the "2010
Notes"
and,
together with the 2013 Notes, the "Notes");
WHEREAS,
CCH II will utilize the net proceeds received from the issuance of the
Notes to
make an intercompany loan to Charter Communications Operating, LLC
("CCO")
with
CCO utilizing 100% of such net proceeds to reduce revolving loans (but
not
revolving commitments) under the $6.5 billion Amended and Restated Credit
Agreement dated as of March 18, 1999, amended and restated as of April
27, 2004,
by and among CCO, as borrower, JPMorgan Chase Bank, N.A., as administrative
agent, and the other parties thereto.
WHEREAS,
the Loan Parties, the Lenders and the Administrative Agent have agreed
to waive
certain provisions of the Loan Agreement in accordance with Section 9.1
in order
to permit the transactions described in the foregoing paragraph.
NOW,
THEREFORE, the parties hereto agree as follows:
1. Amendments
to Loan Agreement.
The
Loan Agreement is hereby amended as set forth below:
(a) Section
1.1 of the Loan Agreement is hereby amended by inserting therein the following
definitions in proper alphabetical order:
"CCH
II
Notes Transaction"
means
the issuance in January 2006 of at least $400.0 million of senior notes
due 2013
(or senior notes due 2010; collectively, the "CCH
II
Notes")
by CCH
II and CCH II Capital Corp. and the related application of 100% of the
net
proceeds thereof by CCO to reduce revolving loans (but not revolving
commitments) under the Credit Agreement, provided
that the
$400.0 million minimum (and the related net proceeds) shall be reduced
dollar
for dollar to the extent the outstanding principal amount of Charter Holdings’
8.250% Senior Notes Due 2007 is reduced as a result of private exchanges
for CCH
II Notes on or prior to the date of such issuance.
"CCO"
mean
Charter Communications Operating, LLC, a Delaware limited liability company,
and
any successor person thereto.
"CCO
Intercompany Loan"
means
an intercompany loan made to CCO by CCH II in connection with the CCH II
Notes
Transaction; provided
that (i)
the note evidencing such intercompany loan may be upstreamed to any Parent
and
(ii) such intercompany loan shall be (x) evidenced by a note in the form
of
Exhibit
J
and (y)
subject to the terms of an intercreditor agreement for the benefit of the
Lenders in the form of Exhibit
K.
(b) Section
6.9 of the Loan Agreement is hereby amended by:
(i)
adding a
new clause (11) at the end of the second paragraph thereof to read as
follows:
(11)
the
incurrence by CCO of the CCO Intercompany Loan; provided
that any
payment in respect thereof (including interest thereon) is used solely
to (i)
pay principal and/or interest on the Notes or (ii) make (or fund) a payment
described in clause (9) of the second paragraph of Section 6.6.
(ii) replacing
the phrase "in clauses (1) through (10) above" in the third paragraph thereof
with the phrase "in clauses (1) through (11) above".
(c) The
Loan
Agreement is hereby amended by adding thereto (i) a new Exhibit J titled
"Form
of Subordinated Note" in the form attached hereto as Exhibit A, and (ii)
a new
Exhibit K titled "Form of Agreement with Respect to Subordinated Notes"
in the
form attached hereto as Exhibit B.
2. Waiver
of Section 2.3(b) of the Loan Agreement.
The
requirement set forth in Section 2.3(b) of the Loan Agreement that the
Total
Commitments be reduced by 100% of the proceeds from the issuance of the
Notes is
hereby waived and the Total Commitments shall be reduced by 100% of the
gross
proceeds from the issuance of the Notes in excess of $275.0 million. It
is
further acknowledged that to the extent the net proceeds of the issuance
of the
Notes are used to fund the CCO Intercompany Loan and such CCO Intercompany
Loan
is distributed to Charter Holdings, such portion of the issuance shall
not
constitute an additional Specified Offering pursuant to clause 1(c) of
the
definition thereof.
3. Consent.
The
Required Lenders hereby consent to the execution and delivery of this Amendment
by the Administrative Agent and the Loan Parties.
4. Effectiveness.
This
Amendment will become effective as of the date first set forth above upon
the
Administrative Agent having received counterparts of this Amendment duly
executed and delivered by the Loan Parties and the Required Lenders;
provided
that
this Amendment shall automatically terminate and be of no effect if the
CCH II
Notes Transaction (as defined in Section 1(a) hereof) shall not have occurred
on
or before January 31, 2006.
5. Continuing
Effect.
Except
as expressly amended and modified hereby, the Loan Agreement shall continue
to
be and shall remain in full force and effect in accordance with its
terms.
6. Representations
and Warranties.
On and
as of the date hereof after giving effect to this Amendment, the Borrower
hereby
represents and warrants to the Lenders that each of its representations
and
warranties contained in Section 4 of the Loan Agreement or in any certificate,
document or financial or other statement furnished at any time under, or
in
connection therewith, are true and correct in all material respects on
and as of
such date as if made on and as of such date, except to the
-2-
extent
that such representations and warranties specifically relate to an earlier
date,
in which case such representations and warranties shall be true and correct
in
all material respects as of such earlier date.
7. GOVERNING
LAW.
THIS
AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
8. Counterparts.
This
Amendment may be executed by the parties hereto on any number of separate
counterparts and all of said counterparts taken together shall be deemed
to
constitute one and the same instrument.
9. Expenses.
The
Loan Parties jointly and severally agree to pay or reimburse the Administrative
Agent for all of its out-of-pocket costs and reasonable expenses incurred
in
connection with this Amendment, any other documents prepared in connection
herewith and the transactions contemplated hereby, including, without
limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent.
-3-
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered by their respective proper and duly authorized officers
as of the day and year first above written.
CCO
HOLDINGS, LLC, as Borrower
By: /s/
Eloise Schmitz
Name: Eloise
Schmitz
Title:
Senior Vice-President
CCO
HOLDINGS CAPITAL CORP., as Guarantor
By: /s/
Eloise Schmitz
Name: Eloise
Schmitz
Title:
Senior Vice-President
JPMORGAN
CHASE BANK, N.A., as Administrative Agent and Lender
By: /s/
Tracey Navin Ewing
Name: Tracey
Navin Ewing
Title:
Vice President
CREDIT
SUISSE, CAYMAN ISLANDS BRANCH, as Lender
By: /s/
Alexis Maged
Name: Alexis
Maged
Title:
Managing Director
By: /s/
Adam Forchheimer
Name: Adam
Forchheimer
Title:
Vice
President
-4-
DEUTSCHE
BANK AG CAYMAN ISLANDS BRANCH, as Lender
By: /s/
David Mayhew
Name: David
Mayhew
Title:
Managing
Director
By: /s/ Stephen
Cayer
Name: Stephen
Cayer
Title:
Director
-5-
EXHIBIT
A
to Waiver and Amendment to Senior Bridge Loan Agreement
January
[
], 2006
EXHIBIT
J
FORM
OF SUBORDINATED NOTE
EXHIBIT
B
to Waiver and Amendment to Senior Bridge Loan Agreement
January
[
], 2006
EXHIBIT
K
FORM
OF AGREEMENT WITH RESPECT TO SUBORDINATED NOTES
Exhibit
10.3
CCH
II,
LLC
CCH
II
CAPITAL CORP.
$450,000,000
10.25%
SENIOR NOTES DUE 2010 - SERIES B
PURCHASE
AGREEMENT
Dated
January 26, 2006
January
26, 2006
J.P.
Morgan Securities Inc.
As
Representative of the
several
Purchasers listed
in
Schedule I hereto
c/o
J.P.
Morgan Securities Inc.
270
Park
Avenue
New
York,
New York 10017
Ladies
and Gentlemen:
CCH
II,
LLC, a Delaware limited liability company (the "Company"),
and
CCH II Capital Corp., a Delaware corporation ("CCH
II
Capital"
and,
together with the Company, the "Issuers"),
propose, subject to the terms and conditions stated herein, to issue and sell
to
the purchasers named in Schedule I hereto (the "Purchasers")
an
aggregate of $450,000,000 principal amount of 10.25% Senior Notes due 2010
-
Series B (the "Notes").
The
Notes will be issued pursuant to the Indenture dated as of September 23, 2003,
as supplemented by a supplemental indenture dated January 30, 2006 (the
"Indenture")
among
the Issuers and Wells Fargo Bank, National Association, as trustee (the
"Trustee").
In
this Agreement, January 30, 2006 is referred to as the "Closing
Date"
or the
"Time
of Delivery".
The
Notes will have the benefit of an exchange and registration rights agreement
(the "Exchange
and Registration Rights Agreement"),
to be
dated as of the Time of Delivery, between the Issuers and the Purchasers,
pursuant to which the Issuers will agree to offer in exchange for the Notes,
new
notes, registered under the Securities Act of 1933, as amended (the
"Act"),
but
otherwise on terms substantially identical to the Notes (such registered Notes,
the "Exchange
Notes")
under
the Act subject to the terms and conditions therein specified. To the extent
there are no additional parties listed on Schedule I other than you, the term
Representatives as used herein shall mean you as the Purchasers, and the terms
Representatives and Purchasers shall mean either the singular or plural as
the
context requires. It is understood and agreed that all the representatives
are
joint book-running managers for the offering of the Notes (in such capacity,
the
"Joint
Managers").
Any
determinations or other actions to be made under this Agreement by the Joint
Managers shall only require the consent of
J.P.
Morgan Securities Inc.
The
sale
of the Notes to the Purchasers will be made without registration of the Notes
under the Act in reliance upon exemptions from the registration requirements
of
the Act.
In
connection with the sale of the Notes, the Issuers have prepared a preliminary
offering memorandum dated January 24, 2006 (the "Preliminary
Offering Memorandum")
and
will prepare an offering memorandum dated the date hereof (the "Offering
Memorandum"),
it
being understood that references to the Offering Memorandum refer to the version
of such document to be prepared and delivered in connection with this agreement,
including Sections 5(a) and (c) hereof, setting forth certain information
concerning the Issuers and their subsidiaries and the Notes. Copies of the
Preliminary Offering Memorandum have been, and copies of the Offering Memorandum
will be, delivered by the Issuers to the Purchasers pursuant to the terms of
this Agreement. The Issuers hereby confirm that they have authorized the use
of
the Preliminary Offering Memorandum, the Time of Sale Information (as defined
below) and the Offering Memorandum in connection with the offering and resale
of
the Notes by the Purchasers in the manner contemplated by this agreement.
Capitalized terms used but not defined herein shall have the meanings given
to
such terms in the Preliminary Offering Memorandum. References herein to the
Preliminary Offering Memorandum, the Time of Sale Information and the Offering
Memorandum shall be deemed to refer to and include any document incorporated
by
reference therein.
At
or
prior to the time when sales of the Notes were first made (the "Time
of Sale"),
the
following information shall have been prepared (collectively, the "Time
of Sale Information"):
a
Preliminary Offering Memorandum dated January 24, 2006, as supplemented and
amended by the written communications listed on Annex I hereto.
This
Agreement, the Exchange and Registration Rights Agreement, the Notes and the
Indenture collectively are referred to herein as the "Transaction
Documents."
1. Representations
and Warranties of the Issuers.
Each of
the Issuers jointly and severally represents and warrants to, and agrees with,
each of the Purchasers that:
(a)
The
Preliminary Offering Memorandum, as of its date, did not, the Time of Sale
Information, at the Time of Sale, did not and at the Closing Date, will not,
and
the Offering Memorandum, in the form first used by the Purchasers to confirm
sales of the Notes, will not, and, as of the Closing Date, will not, contain
an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made
in reliance upon and in conformity with information relating to the Purchasers
furnished in writing to the Issuers by or on behalf of a Purchaser through
J.P.
Morgan Securities Inc. expressly for use in the Preliminary Offering Memorandum,
the Time of Sale Information or the Offering Memorandum;
(b) Other
than the Preliminary Offering Memorandum and the Offering Memorandum, the
Issuers (including its agents and representatives, other than the Purchasers
in
their capacity as such) have not made, used, prepared, authorized, approved
or
referred to and will not prepare, make, use, authorize, approve or refer to
any
written communication that constitutes an offer to sell or solicitation of
an
offer to buy the Notes other than the documents listed
-2-
on
Annex
I hereto, including a term sheet substantially in the form of Annex II hereto,
and other written communications used in accordance with Section
5(c);
(c) None
of
the Issuers or any of their subsidiaries has sustained since the date of the
latest audited financial statements included in each of the Time of Sale
Information and the Offering Memorandum any material loss or interference with
its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any court or governmental action, order or decree,
otherwise than as set forth or contemplated in each of the Time of Sale
Information and the Offering Memorandum; and, since the respective dates as
of
which information is given in each of the Time of Sale Information and the
Offering Memorandum, there has not been any change in the capital stock or
limited liability company interests or long-term debt of the Issuers or any
of
their subsidiaries or any material adverse change, or any development involving
a prospective material adverse change, in or affecting the general affairs,
management, financial position, members’ or stockholders’ equity or results of
operations of Charter Communications, Inc. ("CCI"),
Charter Communications Holding Company, LLC ("CCH
LLC"),
Charter Communications Holdings, LLC ("Holdings"),
CCH I
Holdings, LLC ("CIH") and CCH I, LLC ("CCH I" and collectively with CCI, CCH
LLC, Holdings and CIH, the "Parent
Companies"),
the
Issuers and each of the Issuers’ subsidiaries, taken as a whole, otherwise than
as set forth or contemplated in each of the Time of Sale Information and the
Offering Memorandum;
(d) Each
of
the Issuers and its subsidiaries has good and marketable title to all real
property and good and valid title to all personal property owned by it reflected
as owned in the financial statements included in each of the Time of Sale
Information and the Offering Memorandum, in each case free and clear of all
liens, encumbrances and defects except such as are described in each of the
Time
of Sale Information and the Offering Memorandum or except such as do not
materially affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by the Issuers and
their subsidiaries; and any real property and buildings held under lease by
the
Issuers and their subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
materially interfere with the use made and proposed to be made of such property
and buildings by the Issuers and their subsidiaries;
(e) The
Company has been duly formed and is validly existing as a limited liability
company in good standing under the laws of the State of Delaware, and CCH II
Capital has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of the State of Delaware; each of the Issuers
has
power and authority to own its properties and conduct its business as described
in each of the Time of Sale Information and the Offering Memorandum and to
execute, deliver and perform its obligations under this Agreement, and has
been
duly qualified as a foreign corporation or limited liability company, as the
case may be, for the transaction of business and is in good standing under
the
laws of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification; and is not subject
to
liability or disability by reason of the failure to be so qualified in any
such
jurisdiction, except such as
would
not, individually or in the aggregate, have a material adverse effect on the
current or future financial position, members’ or stockholders’ equity or
results of operations of the Parent Companies, the Issuers and the Issuers’
subsidiaries, taken as a whole (a "Material
Adverse Effect");
each
Parent Company and each of the Issuers’ subsidiaries has been
-3-
duly
incorporated or formed, as the case may be, and is validly existing as a
corporation, partnership or limited liability company, as the case may be,
in
good standing under the laws of its jurisdiction of incorporation or formation,
in each case except such as would, individually or in the aggregate, not
result
in a Material Adverse Effect. CCH II Capital has no
subsidiaries;
(f) All
the
outstanding ownership interests of the Issuers have been duly and validly
authorized and issued and are fully paid and non-assessable; and all the
outstanding capital stock, limited liability company interests or partnership
interests, as the case may be, of CCH II Capital and each "significant
subsidiary" (as such term is defined in Rule 1-02 of Regulation S-X) of the
Company (each a "Significant
Subsidiary")
have
been duly and validly authorized and issued, are fully paid and nonassessable
and (except as otherwise set forth in each of the Time of Sale Information
and
the Offering Memorandum) are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims;
(g) This
Agreement has been duly authorized and executed by each of the
Issuers;
(h) The
Notes
have been duly authorized and, when executed by the Issuers and authenticated
by
the Trustee in accordance with the provisions of the Indenture and when
delivered to, and paid for, by the Purchasers in accordance with the terms
of
this Agreement, will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations of the
Issuers entitled to the benefits provided by the Indenture under which they
are
to be issued and enforceable against the Issuers in accordance with their terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors’ rights and to
general equity principles;
(i) The
Indenture has been duly authorized, and when executed and delivered by the
Issuers (assuming the due execution and delivery thereof by the Trustee), will
constitute a valid and legally binding instrument, enforceable against the
Issuers in accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to
or affecting creditors’ rights and to general equity principles; and at the Time
of Delivery, the Indenture will meet the requirements for qualification under
the United States Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act");
and
the Indenture conforms in all material respects to the description thereof
in
each of the Time of Sale Information and the Offering Memorandum;
(j) The
Exchange and Registration Rights Agreement to be entered into between the
Issuers and the Purchasers, substantially in the form of Exhibit A hereto,
has
been duly authorized by the Issuers and, when executed and delivered by each
Issuer party thereto in accordance with its terms and, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
will
constitute the legal, valid and binding obligation of each such Issuer,
enforceable against each such Issuer in accordance with its terms except that
(i) the enforcement thereof may be subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors’ rights and to general equity principles, whether arising in a court
of equity or law, and (ii) any rights to indemnity or contribution thereunder
may be limited by federal and state securities laws and public policy
considerations; and
-4-
the
Exchange and Registration Rights Agreement will conform in all material respects
to the description thereof in each of the Time of Sale Information and the
Offering Memorandum;
(k) The
Exchange Notes (as defined in the Exchange and Registration Rights Agreement)
have been duly authorized by the Issuers; and, when executed, authenticated,
issued and delivered in accordance with the Indenture and Exchange and
Registration Rights Agreement (assuming the due authorization, execution and
delivery of the Indenture by the Trustee), will constitute valid and legally
binding instruments entitled to the benefits provided by the Indenture and
enforceable against the Issuers in accordance with their respective terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors’ rights and to
general equity principles; and the Exchange Notes will conform in all material
respects to the description thereof in each of the Time of Sale Information
and
the Offering Memorandum;
(l) None
of
the transactions contemplated by this Agreement (including, without limitation,
the use of the proceeds from the sale of the Notes) will violate or result
in a
violation of Section 7 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or any regulation promulgated thereunder, including, without
limitation, Regulations T, U, and X of the Board of Governors of the Federal
Reserve System;
(m) Prior
to
the date hereof, none of the Issuers or any of their affiliates has taken any
action which is designed to or which has constituted or which might have been
expected to cause or result in stabilization or manipulation of the price of
any
security of the Issuers in connection with the offering of the
Notes;
(n) The
issuance and sale of the Notes, the issuance of the Exchange Notes and the
compliance by the Issuers with all provisions of each of the Transaction
Documents, including those described under the caption "Description of the
Notes" in the Time of Sale Information and the Offering Memorandum and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of
trust, loan agreement, lease, license, franchise agreement, permit or other
agreement or instrument to which the Issuers, the Parent Companies or any of
the
Issuers’ subsidiaries is a party or by which the Issuers, the Parent Companies
or any of the Issuers’ subsidiaries is bound or to which any of the property or
assets of the Issuers, the Parent Companies or any of the Issuers’ subsidiaries
is subject, nor will such action result in any violation of any statute or
any
order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Issuers, the Parent Companies or any of the Issuers’
subsidiaries or any of their properties, including, without limitation, the
Communications Act of 1934, as amended, the Cable Communications Policy Act
of
1984, as amended, the Cable Television Consumer Protection and Competition
Act
of 1992, as amended, and the Telecommunications Act of 1996 (collectively,
the
"Cable Acts") or any order, rule or regulation of the Federal Communications
Commission (the "FCC"), or the Order Instituting Cease and Desist Proceedings,
Making Findings, and Imposing a Cease and Desist Order Pursuant to Section
21C
of the Securities and Exchange Act of 1934, dated July 27, 2004, issued In
the
Matter of Charter Communications, Inc. (the "Cease and Desist Order"), except,
in each case, where such conflicts, breaches, violations or defaults would
not,
individually or in the aggregate, have a Material Adverse Effect and would
not
have the effect of preventing the Issuers
-5-
from
performing any of their respective obligations under this Agreement or any
of
the other Transaction Documents to which they are, or are to be, a party;
nor
will such action result in any violation of the certificate of formation
or
limited liability company agreement of the Company or the certificate of
incorporation or bylaws of CCH II Capital; and no consent, approval,
authorization, order, registration or qualification of or with any such court
or
governmental agency or body is required, including, without limitation, under
the Cable Acts, any order, rule or regulation of the FCC or the Cease and
Desist
Order, for the issuance and sale of the Notes or the consummation by the
Issuers
of the transactions contemplated in this paragraph (n), except such consents,
approvals, authorizations, registrations or qualifications as have been made
or
except as may be required under state or foreign securities or Blue Sky laws
in
connection with the purchase and distribution of the Notes by the Purchasers
and
except as required under the Securities Act in connection with the transactions
contemplated by the Exchange and Registration Rights Agreement or such as
may be
required by the National Association of Securities Dealers, Inc. (the "NASD")
and except as to such matters as are covered by other paragraphs of this
Section 1;
(o) None
of
the Issuers, the Parent Companies or any of the Issuers’ subsidiaries is (i) in
violation of its certificate of incorporation, bylaws, certificate of formation,
limited liability company agreement, partnership agreement or other
organizational document, as the case may be, (ii) in default in the performance
or observance of any obligation, agreement, covenant or condition contained
in
any indenture, mortgage, deed of trust, loan agreement, lease, license, permit
or other agreement or instrument to which it is a party or by which it or any
of
its properties may be bound or (iii) in violation of the terms of any franchise
agreement, or any law, statute, rule or regulation or any judgment, decree
or
order, in any such case, of any court or governmental or regulatory agency
or
other body having jurisdiction over the Issuers, the Parent Companies or any
of
the Issuers’ subsidiaries or any of their properties or assets, including,
without limitation, the Cable Acts or any order, rule or regulation of the
FCC
or the Cease and Desist Order, except, in the case of clauses (ii) and (iii),
such as would not, individually or in the aggregate, have a Material Adverse
Effect;
(p) The
statements set forth in each of the Time of Sale Information and the Offering
Memorandum under the caption "Description of the Notes" insofar as they purport
to constitute a summary of the terms of the Notes and under the captions "Risk
Factors," "Description of Other Indebtedness" and "United States Federal Income
Taxation of Non-U.S. Holders" insofar as they purport to describe the provisions
of the laws, documents and arrangements referred to therein, are accurate in
all
material respects and (ii) the Annual Report incorporated by reference in each
of the Time of Sale Information and the Offering Memorandum for the Year Ended
December 31, 2004, under the captions "Item 1. Business," "Item 11. Executive
Compensation," and "Item 13. Certain Relationships and Related Transactions"
are
accurate in all material respects as of the dates set forth therein insofar
as
they purport to describe the provisions of the laws, documents and arrangements
referred to therein and to the extent not superseded by subsequent disclosure
(including documents incorporated by reference into the Time of Sale Information
and the Offering Memorandum);
(q) Other
than as set forth in each of the Time of Sale Information and the Offering
Memorandum, there are no legal or governmental proceedings (including, without
limitation, by the FCC or any franchising authority) pending to which the
Issuers, the Parent Companies or any of the Issuers’ subsidiaries is a party or
of which any property of the Issuers, the Par-
-6-
ent
Companies or any of the Issuers’ subsidiaries is the subject which, if
determined adversely with respect to the Issuers, any of the Parent Companies
or
any of the Issuers’ subsidiaries, would, individually or in the aggregate, have
a Material Adverse Effect; and, to the best knowledge of the Issuers and,
except
as disclosed in each of the Time of Sale Information and the Offering
Memorandum, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(r) Each
of
the Issuers, the Parent Companies and the Issuers’ subsidiaries carries
insurance (including, without limitation, self-insurance) in such amounts and
covering such risks as in the reasonable determination of the Issuers is
adequate for the conduct of its business and the value of its
properties;
(s) Except
as
set forth in each of the Time of Sale Information and the Offering Memorandum,
there is no strike, labor dispute, slowdown or work stoppage with the employees
of any of the Issuers or their subsidiaries which is pending or, to the best
knowledge of the Issuers, threatened which would, individually or in the
aggregate, have a Material Adverse Effect;
(t) When
the
Notes are issued and delivered pursuant to this Agreement, the Notes will not
be
of the same class (within the meaning of Rule 144A under the Securities Act
of
1933, as amended, (the "Act")) as securities which are listed on a national
securities exchange registered under Section 6 of the Exchange Act or quoted
in
a U.S. automated inter-dealer quotation system;
(u) Neither
Issuer is, or after giving effect to the offering and sale of the Notes will
be,
an "investment company" or any entity "controlled" by an "investment company"
as
such terms are defined in the U.S. Investment Company Act of 1940, as amended
(the "Investment Company Act");
(v) None
of
the Issuers or any of their affiliates, nor any person authorized to act on
their behalf (other than the Purchasers, as to whom the Issuers make no
representations) has, directly or indirectly, made offers or sales of any
security, or solicited offers to buy any security, under circumstances that
would require the registration of the Notes under the Act;
(w) None
of
the Issuers or any of the Parent Companies or the Issuers’ subsidiaries, or any
person authorized to act on their behalf (other than the Purchasers, as to
whom
the Issuers make no representation) has offered or sold, the Notes by means
of
any general solicitation or general advertising within the meaning of Rule
502(c) under the Act or, with respect to Notes sold outside the United States
to
non-U.S. persons (as defined in Rule 902 under the Act), by means of any
directed selling efforts within the meaning of Rule 902 under the Act and the
Issuers, any affiliate of the Issuers and any person authorized to act on their
behalf (other than the Purchasers, as to whom the Issuers make no
representation) has complied with and will implement the offering restriction
within the meaning of such Rule 902;
(x) Within
the preceding six months, none of the Issuers or any other person authorized
to
act on their behalf (other than the Purchasers, as to whom the Issuers make
no
representation) has offered or sold to any person any Notes, or any securities
of the same or a simi-
-7-
lar
class
as the Notes, other than Notes offered or sold to the Purchasers hereunder
and
the approximate $60 million of the Issuers’ 10.250% Senior Notes due 2010 issued
in exchange for Holdings’ 8.250% Senior Notes due 2007. The Issuers will take
reasonable precautions designed to ensure that any offer or sale, direct
or
indirect, in the United States or to any U.S. person (as defined in Rule
902
under the Act) of any Notes or any substantially similar security issued
by the
Issuers, within six months subsequent to the date on which the distribution
of
the Notes has been completed (as notified to the Issuers by J.P. Morgan
Securities Inc.), is made under restrictions and other circumstances reasonably
designed not to affect the status of the offer and sale of the Notes in the
United States and to U.S. persons contemplated by this Agreement as transactions
exempt from the registration provisions of the Act;
(y) The
consolidated financial statements (including the notes thereto) included in
each
of the Time of Sale Information and the Offering Memorandum present fairly
in
all material respects the respective consolidated financial positions, results
of operations and cash flows of the entities to which they relate at the dates
and for the periods to which they relate and have been prepared in accordance
with U.S. generally accepted accounting principles ("GAAP") applied on a
consistent basis (except as otherwise noted therein). The selected historical
financial data in each of the Time of Sale Information and the Offering
Memorandum present fairly in all material respects the information shown therein
and, except with respect to the selected historical financial data for the
calendar year ended December 31, 1999 (which has not been restated), have been
prepared and compiled on a basis consistent with the audited financial
statements included therein; and the financial information set forth in the
Preliminary Offering Memorandum and the Offering Memorandum under the heading
"Summary - Fourth quarter preliminary information" to the knowledge of the
Issuers and subject to the conditions set forth therein, present fairly in
all
material respects the information shown therein and have been prepared and
compiled on a basis consistent with the audited financial statements included
therein;
(z) The
pro
forma financial information included in each of the Time of Sale Information
and
the Offering Memorandum (i) complies as to form in all material respects with
the applicable requirements of Regulation S-X for Form S-1 promulgated under
the
Exchange Act, and (ii) has been properly computed on the bases described
therein; the assumptions used in the preparation of the pro forma financial
information included in each of the Time of Sale Information and the Offering
Memorandum are reasonable and the adjustments used therein are appropriate
to
give effect to the transactions or circumstances referred to
therein;
(aa) KPMG
LLP,
who has certified the financial statements included in each of the Time of
Sale
Information and the Offering Memorandum, is a firm of independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder, based upon representations by such firm to
us;
(bb) The
Issuers, the Parent Companies and the Issuers’ subsidiaries own or possess, or
can acquire on reasonable terms, adequate licenses, trademarks, service marks,
trade names and copyrights (collectively, "Intellectual Property") necessary
to
conduct the business now or proposed to be operated by each of them as described
in each of the Time of Sale Information and the Offering Memorandum, except
where the failure to own, possess or have the ability to acquire any
Intellectual Property would not, individually or in the aggregate, have a
Material Adverse Effect; and none of the Issuers or any of the Parent Companies
or the Issuers’ sub-
-8-
sidiaries
has received any notice of infringement of or conflict with (and none actually
knows of any such infringement of or conflict with) asserted rights of others
with respect to any Intellectual Property which, if any such assertion of
infringement or conflict were sustained would, individually or in the aggregate,
have a Material Adverse Effect;
(cc) Except
as
described in each of the Time of Sale Information and the Offering Memorandum,
the Issuers, the Parent Companies and the Issuers’ subsidiaries have obtained
all consents, approvals, orders, certificates, licenses, permits, franchises
and
other authorizations of and from, and have made all declarations and filings
with, all governmental and regulatory authorities (including, without
limitation, the FCC), all self-regulatory organizations and all courts and
other
tribunals legally necessary to own, lease, license and use their respective
properties and assets and to conduct their respective businesses in the manner
described in each of the Time of Sale Information and the Offering Memorandum,
except to the extent that the failure to so obtain or file would not,
individually or in the aggregate, have a Material Adverse Effect;
(dd) The
Issuers, the Parent Companies and the Issuers’ subsidiaries have filed all
necessary federal, state and foreign income and franchise tax returns required
to be filed as of the date hereof, except where the failure to so file such
returns would not, individually or in the aggregate, have a Material Adverse
Effect, and have paid all taxes shown as due thereon; and there is no tax
deficiency that has been asserted against the Issuers or any of their
subsidiaries (other than those which the amount or validity thereof are
currently being challenged in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of the relevant entity) that could reasonably be expected to result,
individually or in the aggregate, in a Material Adverse Effect;
(ee) The
Issuers, the Parent Companies and the Issuers’ subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management’s general or
specific authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii) access
to
assets is permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is compared
with
the existing assets at reasonable intervals and appropriate action is taken
with
respect to any differences;
(ff) Except
as
described in each of the Time of Sale Information and the Offering Memorandum:
(i) each of the franchises held by, or necessary for any operations of, the
Issuers and their subsidiaries that are material to the Issuers and their
subsidiaries, taken as a whole, is in full force and effect, with no material
restrictions or qualifications; (ii) to the best knowledge of the Issuers,
no
event has occurred which permits, or with notice or lapse of time or both .would
permit, the revocation or non-renewal of any such franchises, assuming the
filing of timely renewal applications and the timely payment of all applicable
filing and regulatory fees to the applicable franchising authority, or which
would be reasonably likely to result, individually or in the aggregate, in
any
other material impairment of the rights of the Issuers and the Issuers’
subsidiaries in such franchises; and (iii) the Issuers have no reason to believe
that any franchise that is material to the operation of the Issuers and their
subsidiaries will not be renewed;
-9-
(gg) Each
of
the programming agreements entered into by, or necessary for any operations
of,
the Issuers, their Parent Companies or their subsidiaries that are material
to
the Issuers and their subsidiaries, taken as a whole, is in full force and
effect (or in any cases where the Issuers or their subsidiaries and any
suppliers of content are operating in the absence of an agreement, such content
providers and the Issuers and their subsidiaries provide and receive service
in
accordance with terms that have been agreed to or consistently acknowledged
or
accepted by both parties, including, without limitation, situations in which
providers or suppliers of content accept regular payment for the provision
of
such content); and to the best knowledge of the Issuers, no event has occurred
(or with notice of lapse of time or both would occur) which would be reasonably
likely to result in the early termination or non-renewal of any such programming
agreements and which would, individually or in the aggregate, result in a
Material Adverse Effect; no amendments or other changes to such programming
agreements, other than amendments relating to intra-company transfers,
extensions of termination dates or pricing adjustments, together with other
changes that are not in the aggregate material, have been made to the copies
of
the programming agreements provided for the review of the Purchasers or their
representatives;
(hh) The
Issuers, the Parent Companies and the Issuers’ subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and local laws
and regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits, licenses
or
other approvals required of ‘them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to. comply with the terms and conditions
of such permits, licenses or approvals would not, individually or in the
aggregate, have a Material Adverse Effect;
(ii) Immediately
after the consummation of this offering (including after giving effect to the
execution, delivery and performance of this Agreement and the Indenture and
the
issuance and sale of the Notes), (i) the fair market value of the assets of
each
of Holdings, CIH, CCH I, LLC, CCO Holdings, LLC, Charter Communications
Operating, LLC and the Company, each on a consolidated basis with its
subsidiaries, exceeds and will exceed its liabilities, on a consolidated basis
with its subsidiaries; (ii) the present fair saleable value of the assets of
each of Holdings, CIH, CCH I, LLC, CCO Holdings, LLC and the Company, each
on a
consolidated basis with its subsidiaries, exceeds and will exceed its
liabilities, on a consolidated basis with its subsidiaries; (iii) each of
Holdings, CIH, CCH I, LLC, CCO Holdings, LLC, Charter Communications Operating,
LLC and the Company, each on a consolidated basis with its subsidiaries, is
and
will be able to pay its debts, on a consolidated basis with its subsidiaries,
as
such debts respectively mature or otherwise become absolute or due; and (iv)
each of Holdings, CIH, CCH I, LLC, CCO Holdings, LLC, Charter Communications
Operating, LLC and the Company, on a consolidated basis with its subsidiaries,
does not have and will not have unreasonably small capital with which to conduct
its respective operations;
(jj) The
Issuers and their Parent Companies each maintain a system of disclosure controls
and procedures to ensure that material information relating to the Issuers
and
their Parent Companies and their consolidated subsidiaries, is made known to
each of them by others
-10-
within
those entities, particularly during the period in which the periodic reports
are
being prepared;
(kk) There
is,
and has been, no failure on the part of the Issuers, the Parent Companies or
the
Issuers’ subsidiaries, or any of their directors or officers, in their
capacities as such, to comply with any provision of the Sarbanes Oxley Act
of
2002 and the rules and regulations promulgated in connection therewith,
including, without limitation, Section 402 related to loans and Sections 302
and
906 related to certifications;
(ll) The
statistical and market-related data that will be included in the Offering
Memorandum are based on or derived from sources that the Issuers believe to
be
reliable and accurate; and
(mm) Each
of
the relationships and transactions specified in Item 404 of Regulation S-K
that
would have been required to be described in a Form 10-K have been so described
in each of the Time of Sale Information and the Offering Memorandum (exclusive
of any amendment or supplement thereto).
2. Purchase
and Sale.
(a) Subject
to the terms and conditions herein set forth, the Issuers agree to issue and
sell to each of the Purchasers, and each of the Purchasers agrees, severally
and
not jointly, to purchase from the Issuers the principal amount of the 2010
Notes
set forth opposite the name of such Purchaser on Schedule I hereto at an
aggregate purchase price of 96.039% of the principal amount thereof, plus
accrued interest on such principal amount from and including September 15,
2005,
to but not including the Closing Date.
(b) The
Issuers acknowledge and agree that the Purchasers are acting solely in the
capacity of an arm's length contractual counterparty to the Issuers with respect
to the offering of Notes contemplated hereby (including in connection with
determining the terms of the offering) and not as a financial advisor or a
fiduciary to, or an agent of, the Issuers or any other person. Additionally,
no
Purchaser is advising the Issuers or any other person as to any legal, tax,
investment, accounting or regulatory matters in any jurisdiction. The Issuers
shall consult with their own advisors concerning such matters and shall be
responsible for making their own independent investigation and appraisal of
the
transactions contemplated hereby, and the Purchasers shall have no
responsibility or liability to the Issuers with respect thereto. Any review
by
the Purchasers of the Issuers, the transactions contemplated hereby or other
matters relating to such transactions will be performed solely for the benefit
of the Purchasers and shall not be on behalf of the Issuers.
3. Representations,
Warranties and Covenants of the Purchasers.
Upon
the authorization by you of the release of the Notes, the several Purchasers
propose to offer the Notes for sale upon the terms and conditions set forth
in
this Agreement and the Time of Sale Information and each Purchaser, severally
and not jointly, hereby represents and warrants to, and agrees with the Issuers
that:
(a) It
will
offer and sell the Notes only: (i) to persons who it reasonably believes are
"qualified institutional buyers" ("QIBs") within the meaning of Rule 144A under
the
-11-
Act
in
transactions meeting the requirements of Rule 144A or (ii) upon the terms
and
conditions set forth in Annex III to this Agreement;
(b) It
is an
institutional "accredited investor" within the meaning of Regulation D under
the
Act; and
(c) It
has
not offered and will not offer or sell the Notes by any form of general
solicitation or general advertising, including, without limitation, the methods
described in Rule 502(c) under the Act.
4. Delivery
and Payment.
(a) The
Notes
to be purchased by each Purchaser hereunder will be represented by definitive
global Notes in book-entry form which will be deposited by or on behalf of
the
Issuers with The Depository Trust Company ("DTC")
or its
designated custodian. The Issuers will deliver the Notes to J.P. Morgan
Securities Inc., for the account of each Purchaser, against payment by or on
behalf of such Purchaser of the purchase price therefor by wire transfer of
same
day funds wired in accordance with the written instructions of the Company,
by
causing DTC to credit the Notes to the account of J.P. Morgan Securities Inc.
at
DTC. The Issuers will cause the certificates representing the Notes to be made
available to J.P. Morgan Securities Inc. for checking at least twenty-four
hours
prior to the Time of Delivery at the office of DTC or its designated custodian
(the "Designated
Office").
The
time and date of such delivery and payment shall be 9:30 a.m., New York City
time, on January 30, 2006 or such other time and date as J.P. Morgan Securities
Inc. and the Issuers may agree upon in writing. Such time and date are herein
called the "Time of Delivery."
(b) The
documents to be delivered at the Time of Delivery by or on behalf of the parties
hereto pursuant to Section 8 hereof, including, without limitation, the
cross-receipt for the Notes and any additional documents requested by the
Purchasers pursuant to Section 8(j) hereof, will be delivered at such time
and
date at the offices of Gibson, Dunn & Crutcher LLP, 200 Park Avenue, New
York, New York 10166 or such other location as the parties mutually agree (the
"Closing
Location"),
and
the Notes will be delivered at the Designated Office, all at the Time of
Delivery. A meeting will be held at the Closing Location at 6 p.m., New York
City time, on the New York Business Day next preceding the Time of Delivery,
at
which meeting the final drafts of the documents to be delivered pursuant to
the
preceding sentence will be available for review by the parties hereto. For
the
purposes of this Section 4, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close.
5. Agreements
of the Issuers.
Each of
the Issuers agrees with each of the Purchasers:
(a) To
prepare each of the Time of Sale Information and the Offering Memorandum in
a
form approved by you; to make no amendment or any supplement to any of the
Time
of Sale Information or the Offering Memorandum which shall not be approved
by
you promptly after reasonable notice thereof; and to furnish you with copies
thereof;
-12-
(b) Promptly
from time to time to take such action as you may reasonably request to qualify
the Notes for offering and sale under the securities laws of such jurisdictions
as you may request and to comply with such laws so as to permit the continuance
of sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Notes; provided that in connection
therewith the Issuers shall not be required to qualify as a foreign corporation
or limited liability company, as the case may be, or to file a general consent
to service of process in any jurisdiction;
(c) To
furnish the Purchasers with copies of the Preliminary Offering Memorandum,
any
other Time of Sale Information and the Offering Memorandum and each amendment
or
supplement thereto signed by an authorized officer of each of the Issuers with
the independent accountants’ reports in each of the Time of Sale Information and
the Offering Memorandum, and any amendment or supplement containing amendments
to the financial statements covered by such reports, signed by the accountants,
and additional copies thereof in, such quantities as you may from time to time
reasonably request, and (1) if, at any time prior to the expiration of nine
months after the date of the Offering Memorandum, any event shall have occurred
as a result of which the Offering Memorandum as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light
of
the circumstances under which they were made when such Offering Memorandum
is
delivered, not misleading, or, if for any other reason it shall be necessary
or
desirable during such same period to amend or supplement the Offering
Memorandum, to notify you and upon your request to prepare and furnish without
charge to each Purchaser and to any dealer in securities as many copies as
you
may from time to time reasonably request of an amended Offering Memorandum
or a
supplement to the Offering Memorandum which will correct such statement or
omission or effect such compliance and (2) if at any time prior to the Closing
Date (i) any event shall occur or condition shall exist as a result of which
any
of the Time of Sale Information as then amended or supplemented would include
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or (ii) it is necessary
to amend or supplement any of the Time of Sale Information so that any of the
Time of Sale Information will not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, to immediately notify you thereof and forthwith prepare
and, subject to paragraph (a) above, furnish without charge to each Purchaser
such amendments or supplements to any of the Time of Sale Information as may
be
necessary so that the statements in any of the Time of Sale Information as
so
amended or supplemented will not, in the light of the circumstances under which
they were made, be misleading;
(d) Before
using, authorizing, approving or referring to any written communication that
constitutes an offer to sell or a solicitation of an offer to buy the Notes
(an
"Issuer
Written Communication")
(other
than written communications that are listed on Annex I hereto and the Offering
Memorandum), to furnish to the Representative and counsel for the Purchasers
a
copy of such written communication for review and to not use, authorize, approve
or refer to any such written communication to which the Representative
reasonably objects.
(e) During
the period beginning from the date hereof and continuing until the date 90
days
after the Time of Delivery, not to, and not permit any of its affiliates or
anyone au-
-13-
thorized
to act on behalf of the Issuers or their affiliates to, without the prior
written consent of J.P. Morgan Securities Inc., offer, sell, contract to
sell or
otherwise dispose of, except as provided hereunder, any securities of the
Issuers that are substantially similar to the Notes other than as provided
in
the Exchange and Registration Rights Agreement and for private exchanges
of the
Issuers’ 10.250% Senior Notes due 2010 for Holdings’ 8.750% Senior Notes due
2007.
(f) Not
to be
or become, at any time prior to the expiration of two years after the Time
of
Delivery, an open-end investment company, unit investment trust, closed-end
investment company or face-amount certificate company that is or is required
to
be registered under Section 8 of the Investment Company Act;
(g) If
such
documents are not then available on the Commission’s EDGAR Database, during a
period of three years from the date of the Offering Memorandum, to furnish
or
make electronically available to you, copies of all reports or other
communications (financial or other) furnished generally to holders of a publicly
traded class of ownership interests of the Issuers or CCI, and to furnish or
make electronically available to you, as soon as they are available, of any
reports and financial statements furnished to or filed with the Commission
or
any securities exchange on which the Notes or any class of securities of the
Issuers or CCI is listed;
(h) During
the period of two years after the Time of Delivery, to not, and to not permit
any of their "affiliates" (as defined in Rule 144 under the Act) to, resell
any
of the Notes which constitute "restricted securities" under Rule 144 that have
been reacquired by any of them;
(i) To
use
the net proceeds received from the sale of the Notes pursuant to this Agreement
in the manner specified in each of the Time of Sale Information and the Offering
Memorandum under the caption "Use of Proceeds";
(j) To
not,
and to not permit any affiliate nor any person authorized to act on its behalf
(other than the Purchasers, as to whom the Issuers take no responsibility)
to
engage in any directed selling efforts with respect to the Notes in
contravention of, and to comply with, the applicable offering restrictions
requirement of Regulation S. Terms used in this paragraph have the meanings
given to them by Regulation S;.
(k) To
not
and to not permit any affiliate nor any person authorized to act on its behalf
(other than the Purchasers, as to whom the Issuers take no responsibility)
to,
directly or indirectly, make offers or sales of any security, or solicit offers
to buy any security, under circumstances that would require the registration
of
the Notes under the Act, except pursuant to the Exchange and Registration Rights
Agreement;
(l) To
not
and to not permit any affiliate nor any person authorized to act on its behalf
(other than the Purchasers, as to whom the Issuers take no responsibility)
to,
engage in any form of general solicitation or general advertising (within the
meaning of Regulation D) in connection with any offer or sale of the Notes
in
the United States;
(m) Except
as
otherwise permitted by Regulation M under the Exchange Act, to not and to not
permit any affiliate nor any person authorized to act on its behalf to, take,
directly or indirectly, any action designed to or which has constituted or
which
would reasonably
-14-
be
expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the Issuers
to
facilitate the sale or resale of the Notes; and
(n) To
use
their best efforts prior to the Time of Delivery to cause the Notes to be
eligible for the PORTAL trading system of the NASD.
6. Agreement
to Pay Certain Fees.
Each of
the Issuers covenants and agrees with the several Purchasers that the Issuers
will pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Issuers’ counsel and accountants in connection with the issue of
the Notes and all other expenses in connection with the preparation, printing
and filing of each of the Time of Sale Information and the Offering Memorandum
and any amendments and supplements thereto and the mailing and delivering of
copies thereof to the Purchasers and dealers; (ii) the cost of printing or
producing any Agreement among Purchasers, this Agreement, the Indenture, the
Notes, the Blue Sky and Legal Investment Memoranda, closing documents
(including, without limitation, any compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of the
Notes; (iii) all expenses in connection with the qualification of the Notes
for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including, without limitation, the fees and disbursements of counsel
for
the Purchasers in connection with such qualification and in connection with
the
Blue Sky and Legal Investment surveys; (iv) any fees charged by securities
rating services for rating the Notes; (v) the cost of preparing the Notes;
(vi)
the fees and expenses of the Trustee and any agent of the Trustee and the fees
and disbursements of counsel for the Trustee in connection with the Indenture
and the Notes; (vii) any cost incurred in connection with the designation of
the
Notes for trading in PORTAL; and (viii) all other costs and expenses incident
to
the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section 6 and Sections 9 and 12 hereof; the
Purchasers will pay all their own costs and expenses, including, without
limitation, the fees of their counsel, transfer taxes on resale of any of the
Notes by them, and any advertising expenses connected with any offers they
may
make.
7. Agreements
of the Purchasers.
Each
Purchaser hereby represents and agrees that it has not and will not use,
authorize use of, refer to, or participate in the planning for use of, any
written communication that constitutes an offer to sell or the solicitation
of
an offer to buy the Notes other than (i) a written communication that contains
no "issuer information" (as defined in Rule 433(h)(2) under the Securities
Act)
that was not included (including through incorporation by reference) in the
Preliminary Offering Memorandum, (ii) any written communication listed on Annex
I or prepared pursuant to Section 5(c) above, (iii) any written communication
prepared by such Purchaser and approved by the Issuers in advance in writing
or
(iv) any written communication relating to or that contains the terms of the
Notes and/or other information that was included (including through
incorporation by reference) in the Preliminary Offering Memorandum.
8. Conditions
to the Obligations of the Purchasers.
The
obligations of the Purchasers hereunder shall be subject, in their discretion,
to the condition that all representations and warranties and other statements
of
the Issuers herein are, at and as of the date hereof and the Time of Delivery,
true and correct, the condition that the Issuers shall have performed all their
obligations hereunder theretofore to be performed, and the following additional
conditions:
-15-
(a) The
Purchasers shall have received from Cahill Gordon & Reindel LLP,
counsel
for the Purchasers, such opinion or opinions, dated the Time of Delivery and
addressed to the Purchasers, with respect to the issuance and sale of the Notes
and the Indenture and other related matters as the Purchasers may reasonably
require, and the Issuers shall have furnished to such counsel such documents
as
they request for the purpose of enabling them to pass upon such
matters.
(b) Gibson,
Dunn & Crutcher LLP, counsel for the Issuers, shall have furnished to you
their written opinions, dated the Time of Delivery, substantially in the form
of
Exhibit B hereto.
(c) Cole,
Raywid & Braverman, L.L.P., special regulatory counsel to the Issuers, shall
have furnished to you their written opinion, dated the Time of Delivery,
substantially in
the
form of Exhibit C hereto.
(d) Grier
Raclin, Esq., General Counsel of the Company, shall have furnished to you his
written opinion, dated as of the Time of Delivery, substantially in the form
of
Exhibit D hereto.
(e) On
the
date of this agreement and on the Closing Date, KPMG LLP shall have furnished
to
you, at the request of the Company, letters, dated the respective dates of
delivery thereof and addressed to the Initial Purchasers, in form and substance
reasonably satisfactory to you, containing statements and information of the
type customarily included in accountants’ "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
or incorporated by reference in each of the Time of Sale Information and the
Offering Memorandum; provided that the letter delivered on the Closing Date
shall use a "cut-off" date no more than three business days prior to the Closing
Date;
(f) (i)
None
of the Issuers, any of the Parent Companies or any of the Issuers’ subsidiaries
shall have sustained since the date of the latest audited financial statements
included in each of the Time of Sale Information and the Offering Memorandum
any
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any court or governmental
action, order or decree, otherwise than as set forth or contemplated in each
of
the Time of Sale Information and the Offering Memorandum, and (ii) since the
respective dates as of which information is given in each of the Time of Sale
Information and the Offering Memorandum (for clarification purposes, this
excludes any amendment or supplement to the Offering Memorandum on or after
the
date of this Agreement) there shall not have been any change in the capital
stock, limited liability company interests, partnership interests or long-term
debt of the Issuers or any of their subsidiaries or any change, or any
development involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders’ or members’ equity, or results of
operations of the Issuers and their subsidiaries, otherwise than as set forth
or
contemplated in each of the Time of Sale Information and the Offering
Memorandum, the effect of which, in any such case described in clause (i) or
(ii), is in the judgment of a majority in interest of the Purchasers so material
and adverse as to make it impracticable or inadvisable to proceed with the
offering or the delivery of the Notes on the terms and in the manner
contemplated in this Agreement, the Time of Sale Information and the Offering
Memorandum;
-16-
(g) Subsequent
to the execution and delivery of this Agreement, (i) no downgrading shall have
occurred in the rating accorded the Notes or any other debt securities or
preferred stock issued or guaranteed by the Issuers by any "nationally
recognized statistical rating organization," as such term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act; and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, or has changed its outlook with respect to, its rating of the Notes
or
of any other debt securities or preferred stock issued or guaranteed by the
Issuers (other than an announcement with positive implications of a possible
upgrading or an announcement which reaffirms, reiterates or restates the
substance of any announcement made prior to the date hereof);
(h) On
or
after the date hereof there shall not have occurred any of the following: (i)
a
suspension or material limitation in trading in securities generally on the
New
York Stock Exchange or on the Nasdaq National Market; (ii) a suspension or
material limitation in trading in CCI’s Class A common stock on the Nasdaq
National Market, (iii) a general moratorium on commercial banking activities
declared by either Federal or New York State authorities; or (iv) the outbreak
or escalation of hostilities or the declaration of a national emergency or
war
or the occurrence of any other calamity or crisis, if the effect of any such
event specified in this clause (iv) in the judgment of the Purchasers makes
it
impracticable or inadvisable to proceed with the offering, sale or delivery
of
the Notes on the terms and in the manner contemplated in each of the Time of
Sale Information and the Offering Memorandum;
(i) The
Notes
shall have been designated for trading on PORTAL and shall be eligible for
clearance and settlement through DTC; and
(j) The
Issuers shall have furnished or caused to be furnished to you at the Time of
Delivery certificates of officers of each Issuer satisfactory to you as to
the
accuracy of the representations and warranties of the Issuers herein at and
as
of such Time of Delivery, as to the performance by the Issuers of all their
obligations hereunder to be performed at or prior to such Time of Delivery,
as
to the matters set forth in subsections (g) and (h) of this Section 8 and as
to
such other matters as you may reasonably request.
9. Indemnification
and Contribution.
(a) Indemnification
of the Purchasers.
The
Issuers jointly and severally agree to indemnify and hold harmless each
Purchaser, its affiliates, directors and officers and each person, if any,
who
controls such Purchaser within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, from and against any and all losses, claims, damages
and
liabilities (including, without limitation, reasonable legal fees and other
expenses incurred in connection with any suit, action or proceeding or any
claim
asserted, as such fees and expenses are incurred), joint or several, that arise
out of, or are based upon, any untrue statement or alleged untrue statement
of a
material fact contained in the Preliminary Offering Memorandum, any other Time
of Sale Information, any Issuer Written Communication or the Offering Memorandum
(or any amendment or supplement thereto) or any omission or alleged omission
to
state therein a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
in
each case except insofar as such losses, claims, damages or liabilities arise
out of, or are based upon, any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with any
information relat-
-17-
ing
to
any Purchaser furnished to the Issuers in writing by such Purchaser through
J.P.
Morgan Securities Inc. expressly for use therein; provided, however, that
the
foregoing indemnity agreement with respect to the Preliminary Offering
Memorandum shall not inure to the benefit of any Purchaser from whom the
person
asserting any such losses, claims, damages or liabilities purchased Notes,
or
any person controlling such Purchaser where it shall have been determined
by a
court of competent jurisdiction by final and nonappealable judgment that
(i)
prior to the Time of Sale, the Issuers shall have notified such Purchaser
that
the Preliminary Offering Memorandum contains an untrue statement of material
fact or omits to state therein a material fact required to be stated therein
in
order to make the statements therein not misleading, (ii) such untrue statement
or omission of a material fact was corrected in an amended or supplemented
Preliminary Offering Memorandum or, where permitted by law, an Issuer Written
Communication and such corrected Preliminary Offering Memorandum or Issuer
Written Communication was provided to such Purchaser far enough in advance
of
the Time of Sale so that such corrected Preliminary Offering Memorandum or
Issuer Written Communication could have been provided to such person prior
to
the Time of Sale, (iii) the Purchaser did not send or give such corrected
Preliminary Offering Memorandum or Issuer Written Communication to such person
at or prior to the Time of Sale of the Notes to such person, and (iv) such
loss,
claim, damage or liability would not have occurred had the Purchaser delivered
the corrected Preliminary Offering Memorandum or Issuer Written Communication
to
such person.
(b) Indemnification
of the Issuers.
Each
Purchaser agrees, severally and not jointly, to indemnify and hold harmless
each
Issuer, its affiliates, officers, directors, employees, members, managers and
agents, and each person, if any, who controls an Issuer within the meaning
of
Section 15 of the Act or Section 20 of the Exchange Act to the same extent
as
the indemnity set forth in paragraph (a) above, but only with respect to any
losses, claims, damages or liabilities that arise out of, or are based upon,
any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information relating to such Purchaser
furnished to the Issuers in writing by such Purchaser through J.P. Morgan
Securities Inc. expressly for use in the Preliminary Offering Memorandum (the
"Purchaser Information"), any other Time of Sale Information, any Issuer Written
Communication or the Offering Memorandum (or any amendment or supplement
thereto), it being understood and agreed that the only such information consists
of the following: the paragraph related to over-allotment, covering and
stabilization transactions under the heading "Plan of distribution;" provided,
however, that the foregoing indemnity agreement with respect to the Preliminary
Offering Memorandum shall not inure to the benefit of either Issuer from whom
the person asserting any such losses, claims, damages or liabilities purchased
Notes, or any person controlling either Issuer where it shall have been
determined by a court of competent jurisdiction by final and nonappealable
judgment that (i) prior to the Time of Sale, the Purchasers shall have notified
either Issuer that the Purchaser Information in the Preliminary Offering
Memorandum contains an untrue statement of material fact or omits to state
therein a material fact required to be stated therein in order to make the
statements therein not misleading, (ii) such untrue statement or omission of
a
material fact was corrected in an amended or supplemented Preliminary Offering
Memorandum or, where permitted by law, an Issuer Written Communication and
such
corrected Preliminary Offering Memorandum
-18-
or
Issuer
Written Communication was provided to such Purchaser far enough in advance
of
the Time of Sale so that such corrected Preliminary Offering Memorandum or
Issuer Written Communication could have been provided to such person prior
to
the Time of Sale, (iii) the Purchaser did not send or give such corrected
Preliminary Offering Memorandum or Issuer Written Communication to such person
at or prior to the Time of Sale of the Notes to such person, and (iv) such
loss,
claim, damage or liability would not have occurred had the Purchaser delivered
the corrected Preliminary Offering Memorandum or Issuer Written Communication
to
such person.
(c) Notice
and Procedures.
If any
suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnification may be sought pursuant to either paragraph
(a) or (b) above, such person (the "Indemnified
Person")
shall
promptly notify the person against whom such indemnification may be sought
(the
"Indemnifying
Person")
in
writing; provided that the failure to notify the Indemnifying Person shall
not
relieve it from any liability that it may have under this Section 9 except
to
the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided, further, that
the
failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under this
Section 9. If any such proceeding shall be brought or asserted against an
Indemnified Person and it shall have notified the Indemnifying Person thereof,
the Indemnifying Person shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others entitled
to indemnification pursuant to this Section 9 that the Indemnifying Person
may
designate in such proceeding and shall pay the reasonable fees and expenses
of
such counsel related to such proceeding, as incurred. In any such proceeding,
any Indemnified Person shall have the right to retain its own counsel, but
the
fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall
have
mutually agreed to the contrary; (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person; (iii) the Indemnified Person shall have reasonably concluded that there
may be legal defenses available to it which if raised in a proceeding involving
both parties would be inappropriate under applicable legal or ethical standards
due to actual or potential differing interests between it and the Indemnifying
Person; or (iv) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate under applicable legal or ethical standards due to actual or
potential differing interests between them. It is understood and agreed that
the
Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of
more
than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such reasonable fees and expenses shall be reimbursed
as
they are incurred. Any such separate firm for any Purchaser, its affiliates,
directors and officers and any control persons of such Purchaser shall be
designated in writing by J.P. Morgan Securities Inc. and any such separate
firm
for the Issuers and any control persons of the Issuers shall be designated
in
writing by the Issuers. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
not
subject to further appeal, the Indemnifying Person agrees to indemnify each
Indemnified Person from and against any loss or liability provided for in such
settlement or judgment. No Indemnifying Person shall, without the written
consent of the Indemnified Person (which shall not be unreasonably withheld),
effect any settlement of any pending or threatened proceeding in respect of
which any Indemnified Person is or could have been a party and indemnification
could have been sought hereunder by such Indemnified Person, unless such
settlement (x) includes an unconditional release of such Indemnified Person,
in
form and
-19-
substance
reasonably satisfactory to such Indemnified Person, from all liability on
claims
that are the subject matter of such proceeding and (y) does not include any
statement as to or any admission of fault, culpability or a failure to act
by or
on behalf of such Indemnified Person.
(d) Contribution.
If the
indemnification provided for in paragraphs (a) and (b) above is unavailable
to
an Indemnified Person or insufficient in respect of any losses, claims, damages
or liabilities referred to therein, then each Indemnifying Person under such
paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall
contribute to the amount paid or payable by such Indemnified Person as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Issuers on the
one
hand and the Purchasers on the other from the offering of the Notes or (ii)
if
the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative fault of the Issuers on the
one
hand and the Purchasers on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as
well
as any other relevant equitable considerations. The relative benefits received
by the Issuers on the one hand and the Purchasers on the other shall be deemed
to be in the same respective proportions as the net proceeds (before deducting
expenses) received by the Issuers from the sale of the Notes and the total
discounts and commissions received by the Purchasers in connection therewith,
as
provided in this Agreement, bear to the aggregate offering price of the Notes.
The relative fault of the Issuers on the one hand and the Purchasers on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Issuers
or by the Purchasers and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
(e) Limitation
on Liability.
The
Issuers and the Purchasers agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation
(even if the Purchasers were treated as one entity for such purpose) or by
any
other method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid or payable
by
an Indemnified Person as a result of the losses, claims, damages and liabilities
referred to in paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
Indemnified Person in connection with any such action or claim. Notwithstanding
the provisions of this Section 9, in no event shall a Purchaser be required
to
contribute any amount in excess of the amount by which the total discounts
and
commissions received by such Purchaser with respect to the offering of the
Notes
exceeds the amount of any damages that such Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from
any person who was not guilty of such fraudulent misrepresentation. The
Purchasers’ obligations to contribute pursuant to this Section 9 are several in
proportion to their respective purchase obligations hereunder and not
joint.
(f) Non-Exclusive
Remedies.
The
remedies provided for in this Section 9 are not exclusive and shall not limit
any rights or remedies that may otherwise be available to any Indemnified Person
at law or in equity.
-20-
10. Default
by a Purchaser.
(a) If
any
Purchaser shall default in its obligation to purchase the Notes which it has
agreed to purchase hereunder, you may in your discretion arrange for you or
another party or other parties to purchase such Notes on the terms contained
herein. If within thirty-six hours after such default by any Purchaser you
do
not arrange for the purchase of such Notes, then the Issuers shall be entitled
to a further period of thirty-six hours within which to procure another party
or
other parties satisfactory to you to purchase such Notes on such terms. In
the
event that, within the respective prescribed periods, you notify the
Issuers.
that
you
have so arranged for the purchase of such Notes, or the Issuers notify you
that
they have so arranged for the purchase of such Notes, you or the Issuers shall
have the right to postpone the Time of Delivery for a period of not more than
seven days, in order to effect whatever changes may thereby be made necessary
in
the Time of Sale Information, the Offering Memorandum, or in any other documents
or arrangements, and the Issuers agree to prepare promptly any amendments to
the
Time of Sale Information or the Offering Memorandum which in your opinion may
thereby be made necessary. The term "Purchaser" as used in this Agreement shall
include any person substituted under this Section with like effect as if such
person had originally been a party to this Agreement with respect to such
Notes.
(b) If,
after
giving effect to any arrangements for the purchase of the Notes of a defaulting
Purchaser or Purchasers by you and the Issuers as provided in subsection (a)
above, the aggregate principal amount of such Notes which remains unpurchased
does not exceed one-tenth of the aggregate principal amount of all the Notes,
then the Issuers shall have the right to require each non-defaulting Purchaser
to purchase the principal amount of Notes which such Purchaser agreed to
purchase hereunder and, in addition, to require each non-defaulting Purchaser
to
purchase its pro rata share (based on the principal amount of Notes which such
Purchaser agreed to purchase hereunder) of the Notes of such defaulting
Purchaser or Purchasers for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Purchaser from liability for its
default.
(c) If,
after
giving effect to any arrangements for the purchase of the Notes of a defaulting
Purchaser or Purchasers by you and the Issuers as provided in subsection (a)
above, the aggregate principal amount of Notes which remains unpurchased exceeds
one-tenth of the aggregate principal amount of all the Notes, or if the Issuers
shall not exercise the right described in subsection (b) above to require
non-defaulting Purchasers to purchase Notes of a defaulting Purchaser or
Purchasers, then this Agreement shall thereupon terminate, without liability
on
the part of any non-defaulting Purchaser or the Issuers, except for the expenses
to be borne by the Issuers and the Purchasers as provided in Section 6 hereof
and the indemnity and contribution agreements in Section 9 hereof; but nothing
herein shall relieve a defaulting Purchaser from liability for its
default.
11. Representations
and Indemnities to Survive.
The
respective indemnities, agreements, representations, warranties and other
statements of the Issuers and the several Purchasers, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to
the
results thereof) made by or on behalf of any Purchaser or any controlling
per-
-21-
son
of
any Purchaser, or the Issuers, or any officer or director or controlling
person
of the Issuers, and shall survive delivery of and payment for the
Notes.
12. Termination.
If this
Agreement shall be terminated pursuant to Section 10 hereof, the Issuers shall
then not be under any liability to any Purchaser except as provided in Sections
6 and 9 hereof; but, if for any other reason other than a termination pursuant
to clauses (i), (iii) or (iv) of Section 8(h), the Notes are not delivered
by or
on behalf of the Issuers as provided herein, the Issuers will reimburse the
Purchasers through you for all out-of-pocket expenses approved in writing by
you, including, fees and disbursements of counsel, reasonably incurred by the
Purchasers in making preparations for the purchase, sale and delivery of the
Notes, but the Issuers shall then be under no further liability to any Purchaser
except as provided in Sections 6 and 9 hereof.
13. Reliance
and Notices.
In all
dealings hereunder, you shall act on behalf of each of the Purchasers, and
the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Purchaser made or given by you jointly
or
by J.P. Morgan Securities Inc. on behalf of you as Purchasers.
All
statements, requests, notices and agreements hereunder shall be in writing,
and
if to the Purchasers (or any of them) shall be delivered or sent by mail, telex
or facsimile transmission to you as Purchasers (or a Purchaser) to J.P. Morgan
Securities Inc. Attn: Peter Hooker, 270 Park Avenue, New York, New York 10017,
fax: (212) 270-1063, and if to the Issuers shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Issuers set forth in
the
Offering Memorandum, Attention: Secretary and General Counsel. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
14. Successors.
This
Agreement shall be binding upon, and inure solely to the benefit of, the
Purchasers, the Issuers, and, to the extent provided in Sections 9 and 11
hereof, the officers and directors of the Issuers and the Purchasers and each
person who controls the Issuers or any Purchaser, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser
of
any of the Notes from any Purchaser shall be deemed a successor or assign by
reason merely of such purchase.
15. Timeliness.
Time
shall be of the essence in this Agreement.
16. Applicable
Law.
This
Agreement shall be governed by and construed in.
accordance
with the laws of the State of New York.
17. Counterparts.
This
Agreement may be executed by any one or more of the parties hereto in any number
of counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument.
-22-
If
the
foregoing is in accordance with your understanding, please sign and return
to us
counterparts hereof, and upon the acceptance hereof by you, on behalf of each
of
the Purchasers, this letter and such acceptance hereof shall constitute a
binding agreement between each of the Purchasers and the Issuers. It is
understood that your acceptance of this letter on behalf of each of the
Purchasers is pursuant to the authority set forth in a form of Agreement among
Purchasers, the form of which shall be submitted to the Issuers for examination
upon request, but without warranty on your part as to the authority of the
signers thereof.
Very
truly yours,
CCH
II,
LLC
By: /s/Eloise
Schmitz
Name: Eloise
Schmitz
Title: SVP
Treasury and Finance
CCH
II
CAPITAL CORP.
By: /s/Eloise
Schmitz
Name: Eloise
Schmitz
Title: SVP
Treasury and Finance
Accepted
as of the date hereof
J.P.
MORGAN SECURITIES INC.
For
itself and on behalf of the several Purchasers named in Schedule I
hereto.
By: /s/
Peter B. Hooker
Name: Peter
B. Hooker
Title: Managing
Director
SCHEDULE
I
|
Purchasers
|
Principal
Amount of
Notes
to be Purchased
|
|
J.P.
Morgan Securities Inc.
|
US
$174,375,000
|
|
Credit
Suisse Securities (USA) LLC
|
174,375,000
|
|
Deutsche
Bank Securities Inc.
|
101,250,000
|
|
Total
|
US
$450,000,000
|
ANNEX
I
Time
of Sale Information
1. Term
sheets containing the terms of the Notes, substantially in the forms in
Annex II.
ANNEX
II
ANNEX
III
Selling
Restrictions for Offers and
Sales
outside the United States
(1)(a)
The Securities have not been and will not be registered under the Act and may
not be offered or sold within the United States or to, or for the account or
benefit of, U.S. persons except in.
accordance
with Regulation S under the Act or pursuant to an exemption from the
registration requirements of the Act. Each Purchaser represents and agrees
that,
except as otherwise permitted under Section 3(a)(i) of the Agreement to which
this is an annex, it has offered and sold the Securities, and will offer and
sell the Securities, (i) as part of their distribution at any time; and (ii)
otherwise until 40 days after the later of the commencement of the offering
and
the Time of Delivery, only in accordance with Rule 903 of Regulation S under
the
Act. Accordingly, each Purchaser represents and agrees that neither it, nor
any
of its affiliates nor any person acting on its or their behalf has engaged
or
will engage in any directed selling efforts with respect to the Securities,
and
that it and they have complied and will comply with the offering restrictions
requirement of Regulation S. Each Purchaser agrees that, at or prior to the
confirmation of sale of Securities (other than a sale of Securities pursuant
to
Section 3(a)(i) of the Agreement to which this is an annex), it shall have
sent
to each distributor, dealer or person receiving a selling concession, fee or
other remuneration that purchases Securities from it during the distribution
compliance period a confirmation or notice to substantially the following
effect:
"The
Securities covered hereby have not been registered under the U.S. Securities
Act
of 1933, as amended (the "Act")
and
may not be offered or sold within the United States or to, or for the account
or
benefit of, U.S. persons (i) as part of their distribution at any time or (ii)
otherwise until 40 days after the later of the commencement of the offering
and
August 17, 2005, except
in
either case in accordance with Regulation S or Rule 144A under the Act. Terms
used above have the meanings given to them by Regulation S."
(b) Each
Purchaser also represents and agrees that it has not entered and will not enter
into any contractual arrangement with any distributor with respect to the
distribution of the Securities, except with its affiliates or with the prior
written consent of the Company.
(c) Terms
used in this section have the meanings given to them by Regulation
S.
(2) Each
Purchaser represents and agrees that:
(a) It
has
only communicated or caused to be communicated and will only communicate or
cause to be communicated any invitation or inducement to engage in investment
activity (within the meaning of section 21 of the Financial Services and Markets
Act 2000 ("FSMA"))
received by it in connection with the issue or sale of any Securities or
Exchange Notes in circumstances in which section 21(1) of the FSMA does not
apply to the Company.
(b) It
has
complied and will comply with all applicable provisions of the FSMA with respect
to anything done by it in relation to the Securities or Exchange Notes in,
from
or otherwise involving the United Kingdom.
(3) Each
Purchaser agrees that it will not offer, sell or deliver any of the Securities
in any jurisdiction outside the United States except under circumstances that
will result in compliance with the applicable laws thereof, and that it will
take at its own expense whatever action is required to permit its purchase
and
resale of the Securities in such jurisdictions. Each Purchaser understands
that
no action has been taken to permit a public offering in any jurisdiction outside
the United States where action would be required for such purpose. Each
Purchaser agrees not to cause any advertisement of the Securities to be
published in any newspaper or periodical or posted in any public place and
not
to issue any circular relating to the Securities, except in any such case with
the express written consent of J.P. Morgan Securities Inc. and then only at
such
Purchaser’s own risk and expense.
-2-
Exhibit
A
[Form
of
Exchange and Registration Rights Agreement]
Exhibit
B
[Form
of
Gibson, Dunn & Crutcher LLP Opinion]
Exhibit
C
[Form
of
Cole, Raywid & Braverman LLP Opinion]
Exhibit
D
[Form
of
Raclin Opinion]
Exhibit
99.1
NEWS
FOR
RELEASE: Monday, 4:30 PM CT, January 23, 2006
Charter
Appoints JT Fisher as Chief Financial Officer
ST.
LOUIS -
Charter
Communications, Inc. (Nasdaq: CHTR) today announced the appointment of
Jeffrey
T. ("JT") Fisher to the position of Executive Vice President and Chief
Financial
Officer, effective February 6, 2006. Mr. Fisher succeeds the Interim Chief
Financial Officer, Paul E. Martin, who will continue as Charter’s Senior Vice
President and Controller until at least March 31, 2006.
Mr.
Fisher brings to Charter over 20 years’ experience in executive positions in
finance, operations, and commercial capacities. Most recently, he served
as
Senior Vice President for Delta Air Lines, overseeing the company’s Corporate
Restructuring Group. Prior to that role, Mr. Fisher was President and General
Manager of Delta Connection, Inc., the world’s largest group of regional airline
companies, with over $3 billion in annual revenues and more than 10,000
employees in the U.S., Canada, Mexico and the Caribbean. As President,
Mr.
Fisher was responsible for the development, execution, and coordination
of
strategies and processes to maximize profits and boost productivity of
the
business. Prior to serving as President and General Manager, Mr. Fisher
was CFO
of Delta Connection and, prior to that, was Vice President of Finance,
Marketing
and Sales Controller for Delta Air Lines, Inc., leading a worldwide finance
and
finance and accounting staff overseeing global sales and marketing programs.
Mr.
Fisher received a B.B.M. degree from Embry Riddle University, and an M.B.A.
from
the University of Texas in Arlington.
"JT
is a
seasoned executive who brings a wealth of experience in helping service
oriented
and highly leveraged companies, like Charter," said Neil Smit, President
and
Chief Executive Officer. "We are pleased to welcome JT to Charter and look
forward to utilizing his experience and expertise as we implement our
comprehensive operations improvement programs."
Mr.
Fisher said, "I am extremely pleased to be joining Charter’s senior management
team at what is an exciting time for the company. Charter has tremendous
growth
potential, and this is a unique opportunity to join a team that is clearly
committed to moving fast and achieving the company’s full potential."
Commenting
on Mr. Martin, Mr. Smit said, "On behalf of the Board of Directors, our
senior
management team and Charter employees nationwide, I would like to extend
our
sincere thanks to Paul Martin for stepping in and performing extremely
well as
Interim Chief Financial Officer during a key time for our company."
About
Charter Communications
Charter
Communications, Inc., a broadband communications company, provides a full
range
of advanced broadband services to the home, including cable television
on an
advanced digital video programming platform via Charter Digital™, Charter
High-Speed™ Internet service and Charter Telephone™. Charter Business™ provides
scalable, tailored and cost-effective broadband communications solutions
to
organizations of all sizes through business-to-business Internet, data
networking, video and music services. Advertising sales and production
services
are sold under the Charter Media® brand. More information about Charter can be
found at www.charter.com.
Exhibit
99.2
NEWS
FOR
RELEASE: 4:30 PM CT, Tuesday, January 24, 2006
Charter
Communications Plans to Issue
$400
Million Senior Notes
ST.
LOUIS
-
Charter Communications, Inc. (Nasdaq: CHTR - the "Company") announced today
that
its subsidiary, CCH II, LLC intends to offer for sale, in two series, an
aggregate of $400 million principal amount of original Senior Notes due
2013
(the "Notes") in a private transaction. The first series is expected to
have
interest payable in cash, or in kind, and will mature 2013. The second
series is
expected to be issued on terms substantially identical to the issuers’ existing
$1.6 billion outstanding 10.250% Senior Notes due 2010.
The
net
proceeds of this proposed issuance will be used to repay, but not permanently
reduce, the outstanding debt balances under the existing revolving credit
facility of a subsidiary of the Company.
The
Notes
will be sold to qualified institutional buyers in reliance on Rule 144A
and
outside the United States to non-U.S. persons in reliance on Regulation
S. The
Notes will not be registered under the Securities Act of 1933, as amended
(the
Securities Act), and, unless so registered, may not be offered or sold
in the
United States except pursuant to an exemption from, or in a transaction
not
subject to, the registration requirements of the Securities Act and applicable
state securities laws. The Company said that, subject to market conditions,
it
anticipated that the sale would be completed within the next week. This
press
release shall not constitute an offer to sell or the solicitation of an
offer to
buy, nor shall there be any sale of the Notes in any state in which such
offer,
solicitation or sale would be unlawful.
About
Charter Communications
Charter
Communications, Inc., a broadband communications company, provides a full
range
of advanced broadband services to the home, including cable television
on an
advanced digital video programming platform via Charter Digital™, Charter
High-Speed™ Internet service and Charter Telephone™. Charter Business™ provides
scalable, tailored and cost-effective broadband communications solutions
to
organizations of all sizes through business-to-business Internet, data
networking, video and music services. Advertising sales and production
services
are sold under the Charter Media® brand. More information about Charter can be
found at www.charter.com
<<http://www.charter.com>>.
#
#
#
Contacts:
David
Andersen Mary
Jo
Moehle
314-543-2213 314-543-2397
Cautionary
Statement Regarding Forward-Looking Statements:
This
release includes
forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933, as amended (the "Securities Act"), and Section 21E of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), regarding,
among other things, our plans, strategies and prospects, both business
and
financial. Although we believe that our plans, intentions and expectations
reflected in or suggested by these forward-looking statements are reasonable,
we
cannot assure you that we will achieve or realize these plans, intentions
or
expectations. Forward-looking statements are inherently subject to risks,
uncertainties and assumptions. Many of the forward-looking statements contained
in this
release may
be identified by the use of forward-looking words such as "believe," "expect,"
"anticipate," "should," "planned," "will," "may," "intend," "estimated"
and
"potential," among others. Important factors that could cause actual results
to
differ materially from the forward-looking statements we make in this
release are
set forth in reports or documents that we file from time to time with the
SEC.
All
forward-looking statements attributable to us or any person acting on our
behalf
are expressly qualified in their entirety by this cautionary statement.
We are
under no duty or obligation to update any of the forward-looking statements
after the date of this release.
Exhibit
99.3
NEWS
FOR
RELEASE: Thursday, January 26, 2006
Charter
Communications Prices Senior Notes Offering
Deal
Increased to $450 Million Senior Notes Due 2010
ST.
LOUIS
-
Charter Communications, Inc. (Nasdaq: CHTR - the "Company") announced today
that
its subsidiary, CCH II, LLC, agreed to issue $450 million principal amount
of
10.250% Senior Notes due 2010 (the "Notes") in a private transaction. The
issue
price of the Notes will be approximately 97.75% of the principal amount and
have
terms substantially identical to the terms of the issuer’s existing $1.6 billion
10.250% Senior Notes due 2010.
The
Notes
will not be registered under the Securities Act of 1933, as amended (the
"Securities Act"), and, unless so registered, may not be offered or sold
in the
United States except pursuant to an exemption from the registration requirements
of the Securities Act and applicable state securities laws. The Company said
that, subject to market conditions, it anticipated that the sale would be
completed within the next week. This press release shall not constitute an
offer
to sell or the solicitation of an offer to buy, nor shall there be any sale
of
the Notes in any state in which such offer, solicitation or sale would be
unlawful.
About
Charter Communications
Charter
Communications, Inc., a broadband communications company, provides a full
range
of advanced broadband services to the home, including cable television on
an
advanced digital video programming platform via Charter Digital™, Charter
High-Speed™ Internet service and Charter Telephone™. Charter Business™ provides
scalable, tailored and cost-effective broadband communications solutions
to
organizations of all sizes through business-to-business Internet, data
networking, video and music services. Advertising sales and production services
are sold under the Charter Media® brand. More information about Charter can be
found at www.charter.com
<<http://www.charter.com>>.
#
#
#
Contacts:
David
Andersen Mary
Jo
Moehle
314-543-2213 314-543-2397
Cautionary
Statement Regarding Forward-Looking Statements:
This
release includes forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, as amended (the
"Securities Act"), and Section 21E of the Securities Exchange Act of 1934,
as
amended (the "Exchange Act"), regarding, among other things, our plans,
strategies and prospects, both business and financial. Although we believe
that
our plans, intentions and expectations reflected in or suggested by these
forward-looking statements are reasonable, we cannot assure you that we will
achieve or realize these plans, intentions or expectations. Forward-looking
statements are inherently subject to risks, uncertainties and assumptions.
Many
of the forward-looking statements contained in this release
may be identified by the use of forward-looking words
such as
believe,""expect,""anticipate,""should,""planned,""will,""may,""intend,""estimated"
and "potential," among others. Important factors that could cause actual
results
to differ materially from the forward-looking statements we make in this
release are set forth in reports or documents that we
file from time to time with the SEC.
All
forward-looking statements attributable to us or any person acting on our
behalf
are expressly qualified in their entirety by this cautionary statement. We
are
under no duty or obligation to update any of the forward-looking statements
after the date of this release.