Attached files
EXHIBIT
10.6
LOCK-UP
AGREEMENT
This
LOCK-UP AGREEMENT (this "Agreement"), dated as of
November 30, 2009, is made by and between Paul G. Allen ("Mr. Allen"), Charter
Investment, Inc., a Delaware corporation ("CII") and Charter
Communications, Inc., a Delaware corporation (the "Company").
RECITALS
WHEREAS,
on March 27, 2009, the Company, CII and certain direct and indirect subsidiaries
of the Company (collectively, the "Debtors") filed petitions for
relief under chapter 11 of title 11 of the United States Code (the "Bankruptcy Code") in the
United States Bankruptcy Court for the Southern District of New York (the "Bankruptcy
Court").
WHEREAS,
the Debtors filed a joint plan of reorganization (the "Joint Plan") which, pursuant
to the Bankruptcy Code, was confirmed by an order, entered November 17, 2009
(the "Confirmation
Order"), of the Bankruptcy Court.
WHEREAS,
pursuant to the Joint Plan, among other things, and on the effective date
thereof (the "Effective
Date"), Mr. Allen and/or CII, as applicable, will receive various
consideration in settlement of their rights, claims and remedies against the
Debtors (other than CII) (the "Allen Entities Settlement"),
including without limitation, shares of Class B Common Stock, par value $.001
per share, of the Company ("Class B Stock"), representing
35% of the combined voting power of Class A Common Stock, par value $.001 per
share, of the Company ("Class A
Stock") and Class B Stock.
WHEREAS,
as part of the Allen Entities Settlement, Mr. Allen has agreed to certain
restrictions on transfer of shares of Class B Stock received pursuant to the
Joint Plan ("Subject
Securities") and conversion of Subject Securities into Class A Stock, on
a one-for-one basis, as provided by and permitted under the Company's Amended
and Restated Certificate of Incorporation.
WHEREAS,
the Confirmation Order provides, among other things, for entry into this
agreement to provide for such restrictions on transfer and conversion of Subject
Securities on the terms set forth herein, and the parties desire to enter into
this Agreement on such terms.
NOW,
THEREFORE, in consideration of the terms and provisions set forth herein, the
benefits to be gained by the performance thereof and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company, Mr. Allen and CII hereby agree as follows:
AGREEMENT
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1.
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Definitions. As
used in this Agreement, the following terms shall have the following
meanings:
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"Authorized Class B Holders"
means any of (a) Mr. Allen, (b) his estate, spouse, immediate family members and
heirs and (c) any trust, corporation, partnership or other entity, the
beneficiaries, stockholders, partners or other owners of which consist
exclusively of Mr. Allen or such other Persons referred to in clause (b) above
or a combination thereof.
"CCO" means Charter
Communications Operating, LLC.
"CCO Credit Facility" means the
Amended and Restated Credit Agreement, dated as of March 18, 1999, as amended
and restated on March 6, 2007, among CCO, CCO Holdings, LLC, the several
banks and other financial institutions or entities from time to time parties
thereto, J.P. Morgan Chase Bank, N.A., as administrative agent, J.P. Morgan
Chase Bank, N.A. and Bank of America, N.A., as syndication agents, Citicorp
North America, Inc., Deutsche Bank Securities Inc., General Electric Capital
Corporation and Credit Suisse Securities (USA) LLC, as revolving facility
co-documentation agents, and Citicorp North America, Inc., Credit Suisse
Securities (USA) LLC, General Electric Capital Corporation and Deutsche Bank
Securities Inc., as term facility co-documentation agents.
"Change of Control" means,
directly or indirectly, (a) the sale, transfer, conveyance or other disposition
(other than by way of merger, consolidation or recapitalization of the Company),
in one or a series of related transactions, of all or substantially all of the
assets of the Company and its subsidiaries, taken as a whole, (b) the
consummation of any transaction, including any merger or consolidation, the
result of which is that any "person" (as such term is used in Section 13(d)(3)
of the Securities Exchange Act of 1934, as amended) other than an Authorized
Class B Holder, becomes the holder, directly or indirectly, of 35% or more of
the combined voting power of the capital stock of the Company or (c) the
consummation of any transaction (including without limitation, a merger,
consolidation or recapitalization), pursuant to which any of the outstanding
capital stock of the Company is converted into or exchanged for cash, securities
or other property, other than any such transaction where the capital stock of
the Company outstanding immediately prior to such transaction (other than Class
B Stock) is converted into or exchanged for capital stock of the surviving or
transferee Person constituting a majority of the outstanding voting power of
such surviving or transferee Person immediately after giving effect to such
transaction.
"Lock-Up Termination Date"
means the earliest to occur of (a) September 15, 2014, (b) the repayment,
replacement, refinancing or substantial modification, including any waiver, to
the change of control provisions of the CCO Credit Facility, and (c) a Change of
Control.
"Person" means any individual,
corporation, partnership, joint venture, association, limited liability company,
joint stock company, trust, unincorporated organization, government or agency or
political subdivision thereof or any other entity.
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"Transfer" means, directly or
indirectly, any sale, assignment, gift, pledge, hypothecation, mortgage,
exchange or other disposition.
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2.
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Restriction on
Transfer or Conversion of Class B
Stock.
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(a)
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(i) From
and after the Effective Date to but not including the Lock-Up Termination
Date, each of Mr. Allen and CII shall not Transfer any Subject Securities
or convert any Subject Securities into Class A Stock; provided, that,
the foregoing restrictions shall not apply to any Transfer by an
Authorized Class B Holder to any other Authorized Class B
Holder. Any Transfer or conversion of Subject Securities that
does not comply with the foregoing restrictions shall be deemed void ab
initio.
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(ii) Mr.
Allen hereby warrants and represents to the Company that, as of the date hereof,
(x) he is the sole stockholder of CII and (y) he holds all of the voting power
with respect to the shares of capital stock of CII.
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(b)
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For
the avoidance of doubt, the Company acknowledges and agrees that nothing
herein shall restrict or limit in any manner whatsoever the right of Mr.
Allen, CII or Mr. Allen's other affiliates to Transfer (at any
time) any securities of the Company or its subsidiaries (other than
Subject Securities) held from time to time by Mr. Allen, CII or any such
other affiliates, including without limitation, shares of Class A Stock,
warrants to purchase shares of Class A Stock and any other securities
received by Mr. Allen, CII and/or such other affiliates pursuant to the
Allen Entities Settlement.
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3.
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Transfer Agent; Stop
Transfer Instructions. During the term of this
Agreement, each of Mr. Allen and CII agrees and consents to the entry of
stop transfer instructions with the Company's transfer agent and registrar
against the Transfer or conversion, as applicable, of Subject Securities
if and to the extent (and only to the extent) such Transfer or conversion
is prohibited by Section 2(a).
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4.
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Termination. This
Agreement shall terminate without further action on the Lock-Up
Termination Date or earlier upon the mutual written agreement of the
parties hereto. Immediately upon the termination of this
Agreement, this Agreement and all obligations hereunder of the parties
hereto shall be terminated in all
respects.
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5.
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No Third Party
Beneficiaries. Other than the parties to this Agreement,
nothing in this Agreement, express or implied, is intended to or shall
confer upon any Person any right, benefit or remedy of any nature
whatsoever under or by reason of this
Agreement.
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6.
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Governing
Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York applicable to
contracts made and to be
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performed
in such state without giving effect to applicable principles of conflicts
of law to the extent that the application of the laws of another
jurisdiction would be required
thereby.
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7.
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Severability. If
any provision of this Agreement is held to be invalid or unenforceable in
any respect, the validity and enforceability of the remaining terms and
provisions of this Agreement shall not in any way be affected or impaired
thereby and the parties will attempt in good faith to agree upon a valid
and enforceable provision that is a reasonable substitute therefor and
effects the original intent of the parties as closely as possible, and
upon so agreeing, shall incorporate such substitute provision in this
Agreement.
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8.
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Amendments. This
Agreement may not be amended except by the express written agreement
signed by all of the parties to this
Agreement.
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9.
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Entire
Agreement. This Agreement (together with the Amended and
Restated Certificate of Incorporation of the Company) constitutes the
entire agreement, and supersedes all other prior agreements,
understandings, representations and warranties, both written and oral,
between the parties to this Agreement with respect to the subject matter
of this Agreement.
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10.
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Counterparts;
Effectiveness. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same
agreement and shall become effective when such counterparts have been
signed by each party and delivered to the other party, it being understood
that all parties need not sign the same
counterpart.
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11.
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Assignment;
Succession. Neither this Agreement nor any of the rights
or obligations hereunder shall be assigned by any of the parties hereto
without the prior written consent of the other parties; provided, that,
Mr. Allen or CII may, without the consent of the other parties hereto,
assign their respective rights and obligations hereunder to a transferee
of Subject Securities permitted by this Agreement; provided further, that
as a condition to such assignment, any such transferee shall have
delivered to the Company a written instrument, in form and substance
reasonably satisfactory to the Company, to the effect that such transferee
agrees to be bound by the terms of this Agreement, including, without
limitation, the restrictions on Transfer in Section
2(a)(i). Subject to the preceding sentence, this Agreement will
be binding upon, inure to the benefit of and be enforceable upon and by
the parties and their respective successors and assigns including, but not
limited to, any of their respective estates, spouses, immediate family
members and heirs.
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12.
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Notices. The
Company shall provide each of Mr. Allen and CII with prompt written notice
of the occurrence of any event described in clause (b) or (c) of the
definition of "Lock Up Termination Date." Any notice to be
given to any party hereto shall be in writing (which may include
facsimile) and shall be deemed to have been given and received when
delivered to the address of the receiving party as specified on the
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signature
pages hereof. Any party may, at any time by giving five (5)
days' prior written notice to the other parties, designate any other
address in substitution of the foregoing address to which such notice
shall be given.
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13.
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Specific
Performance. The parties agree that a breach of any
covenant or agreement contained in this Agreement may cause the
non-breaching party to sustain irreparable damages and that money damages
may not be an adequate remedy at law. The parties agree that,
in the event of any breach or threatened breach of any covenant or
agreement contained in this Agreement, the non-breaching party (in
addition to any other remedy that may be available to it, including
monetary damages) shall be entitled to seek (a) the remedy of specific
performance of such covenant or agreement, and (b) an injunction
restraining such breach or threatened
breach.
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[Signature Pages
Follow]
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IN
WITNESS WHEREOF, the undersigned have executed and delivered this Agreement as
of the date first written above.
CHARTER
COMMUNICATIONS, INC.
By:________________________________
Name:
Title:
Address
for notices:
Charter
Communications, Inc.
12405
Powerscourt Drive
St.
Louis, MO 63131
Attention:
General Counsel
Facsimile:
314-543-2308
with a
copy (which shall not constitute notice) to:
Kirkland
& Ellis LLP
601
Lexington Avenue
New York,
New York 10022
Attention:
Christian O. Nagler
Facsimile:
(212) 446-6460
CHARTER
INVESTMENT, INC.
By:________________________________
Name: William
L. McGrath
Title: Vice
President
Address
for notices:
c/o
Vulcan Inc.
505 Fifth
Avenue South, Suite 900
Seattle,
Washington 98104
Attention: General
Counsel
Facsimile: (206)
342-3347
___________________________________
PAUL
G. ALLEN
Address
for notices:
c/o
Vulcan Inc.
505 Fifth
Avenue South, Suite 900
Seattle,
Washington 98104
Attention: General
Counsel
Facsimile: (206)
342-3347