CALCULATION
OF REGISTRATION FEE
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Title
of securities to be
registered
(1)
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|
Amount
to be
registered
(2)
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|
Proposed
maximum
offering
price per
share
(3)
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|
|
Proposed
maximum
aggregate
offering
price
(3)
|
|
|
Amount
of
registration
fee
|
|
|
Class
A Common Stock, par value $0.001 per share
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|
3,848,393
shares
|
|
$ |
19.37 |
|
|
$ |
74,543,372 |
|
|
$ |
4,185 |
|
|
Total
|
|
3,848,393
shares
|
|
$ |
19.37 |
|
|
$ |
74,543,372 |
|
|
$ |
4,185 |
|
|
(1)
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The
Class A Common Stock, par
value $0.001 per share registered hereby is the Class A Common Stock, par
value $0.001 per share of Charter Communications, Inc. that will be deemed
authorized after giving effect the Joint Plan of Reorganization of
Charter Communications, Inc. and its Affiliate Debtors, as confirmed by
the Bankruptcy Court for the Southern District of New York on November 17,
2009.
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(2)
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Pursuant
to Rule 416(a) under the Securities Act of 1933, as amended (the
“Securities Act”), this Registration Statement shall also cover any
additional shares of common stock of the Registrant which become issuable
under the 2009 stock incentive plan being registered pursuant to this
Registration Statement by reason of certain corporate transactions or
events, including any stock dividend, stock split, recapitalization or any
other similar transaction effected without the receipt of consideration
which results in an increase in the number of our outstanding shares of
common stock.
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(3)
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Estimated
solely for the purpose of calculating the registration fee in accordance
with Rule 457(h)(1) under the Securities Act of 1933 and based on the
value attributed to the common stock on the date of the Company’s
emergence from bankruptcy pursuant to the Joint Plan of Reorganization of
Charter Communications, Inc. and its Affiliate Debtors, as confirmed by
the Bankruptcy Court for the Southern District of New York on November 17,
2009.
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PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
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Item
1.
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Plan
Information.
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The
documents containing the information specified in Part I will be delivered in
accordance with Rule 428(b)(1) under the Securities Act. Such
documents are not required to be, and are not, filed with the Securities and
Exchange Commission (the “Commission”), either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424
under the Securities Act. These documents, and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Part II of this Form S-8, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
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Item
2.
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Registrant
Information and Employee Plan Annual
Information.
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Upon
written or oral request, any of the documents incorporated by reference to
Item 3 of Part II of this Registration Statement (which documents are also
incorporated by reference in the Section 10(a) prospectus), other documents
required to be delivered to eligible participants pursuant to Rule 428(b) under
the Securities Act and additional information about the 2009 stock incentive
plan are available without charge by contacting:
Vice President, Associate General
Counsel and Corporate Secretary
12405 Powerscourt
Drive
St. Louis, Missouri
63131
(314)
965-0555
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
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Item
3.
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Incorporation of
Documents by Reference.
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The
following documents, which have been filed by Charter Communications, Inc. (the
“Company”) with the Commission, are incorporated in this Registration Statement
by reference:
(a) The
Company’s Annual Report on Form 10-K for the fiscal year ended December 31,
2008, filed on March 16, 2009, as amended; and
(b) All other
reports filed by the Company pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), since December
31, 2008.
All
reports and other documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
Registration Statement, but prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
of such documents.
Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
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Item
4.
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Description
of Securities.
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The
following summarizes the terms of our capital stock following the Company’s
emergence from chapter 11, and is not meant to be complete and is
qualified in its entirety by reference to the restated certificate of
incorporation and the bylaws which will be effective upon the Company’s
emergence from chapter 11and the provisions of applicable law. Copies
of our current restated certificate of incorporation and the bylaws are filed as
exhibits to the registration statement, of which this prospectus is a
part.
Authorized
Capital Stock upon Emergence
Charter
will have the authority to issue a total of 1,175,000,000 shares of capital
stock, consisting of:
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·
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900,000,000
shares of Class A Common Stock;
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·
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25,000,000
shares of Class B Common Stock; and
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·
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250,000,000
shares of preferred stock, including 5,520,001 shares of Series A
Preferred.
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Common
Stock
Common
Stock Outstanding
The
shares of Class A Common Stock and Class B Common Stock to be issued
will be duly authorized, validly issued, fully paid and
non-assessable. The rights, preferences and privileges of holders of
Class A Common Stock and Class B Common Stock will be subject to, and
may be adversely affected by, the rights of the holders of shares of any series
of our preferred stock which we may designate and issue in the
future.
To the
greatest extent permitted by applicable Delaware law, the shares of Class A
Common Stock will be uncertificated, and transfer will be reflected by
book-entry, unless a physical certificate is requested by a holder.
The Class
B Common Stock will be identical to the Class A Common Stock except with respect
to certain voting, transfer and conversion rights. Subject to a certain Lock-Up
Agreement, each share of Class B Common Stock will be convertible into one share
of Class A Common Stock at the option of the holder or, at any time on or after
January 1, 2011 and until September 15, 2014, at the option of a majority of the
disinterested members of the board of directors, and at any time after September
15, 2014 at the election of a majority of the members of the board of directors
(other than members of the board of directors elected by holders of Class B
Common Stock). Class B Common Stock will be subject to significant transfer
restrictions including restrictions under a Lock-Up Agreement between the
Company and the holders of the Class B Common Stock (the “Lock-Up Agreement”).
Class A Common Stock, however, issued upon conversion of Class B Common Stock,
will not be subject to the same restrictions. Shares of Class B Common Stock
must at all times be held only by (i) Mr. Paul G. Allen, (ii) his estate,
spouse, immediate family members and heirs, and (iii) 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
in to in clause (ii) above or a combination of the above, which we refer to
collectively as Authorized Class B Holders, and upon any transfer to a person or
entity other than an Authorized Class B Holder, each share of Class B Common
Stock will be automatically converted into one share of Class A Common Stock. In
addition, certain restrictions on conversion and transfer of Class B Common
Stock are set forth in the Lock-Up Agreement. Shares of the Class B
Common Stock will only be issued to Mr. Allen or certain of his
affiliates.
Voting
Rights
Holders
of shares of our capital stock will be entitled to vote on all matters submitted
to a vote of our stockholders, including the election of directors, as
follows:
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·
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shares
of Class A Common Stock will be entitled to one vote per
share;
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·
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shares
of Class B Common Stock will be entitled to a number of votes per share,
which at all times when shares of Class B Common Stock are outstanding
represent 35% of the combined voting power of the Company’s capital stock,
on a fully diluted basis; and
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·
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the
Series A Preferred will be entitled to .025 vote per
share.
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Mr. Allen
and entities affiliated with Mr. Allen, will hold 35% of the combined voting
power of the capital stock of Charter and will have the right to elect four of
11 members of the board of directors. There may be additional holders of
significant voting power in Charter, though pursuant to the Amended and Restated
Certificate of Incorporation, prior to September 15, 2014, the votes
attributable to each share of Class A Common Stock held by any holder (other
than Mr. Allen and certain of his affiliates) will be automatically reduced pro
rata among all shares of Class A Common Stock held by such holder and (if
applicable) shares of Class A Common Stock held by any other holder (other than
Mr. Allen and certain of his affiliates) included in any “person” or “group”
with such holder so that no “person” or “group” (other than Mr. Allen and
certain of his affiliates) is or becomes the holder or beneficial owner (as such
term is used in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in
calculating the beneficial ownership of any particular “person” (as such term is
used in Section 13(d) of the Exchange Act) such “person” shall be deemed to have
beneficial ownership of all securities that such “person” has the right to
acquire, whether such right is currently exercisable or is exercisable only upon
the occurrence of a subsequent condition), directly or indirectly, of more than
34.9% of the combined voting power of the capital stock of Charter, subject to
waiver by the disinterested members of the board of directors as provided in the
Amended and Restated Certificate of Incorporation. We refer to this voting power
limitation as the Voting Threshold. Holders of Class B Common Stock
(other than Mr. Allen and certain of his affiliates) will also be subject to a
reduction of their voting power to comply with the Voting
Threshold.
The
holders of Common Stock and their respective affiliates will not have cumulative
voting rights.
Under the
Amended and Restated By-laws of Charter, the number of members of the board of
directors shall be fixed at 11 members. Except for the initial board of
directors, which will be appointed pursuant to the terms of the Plan, for as
long as shares of Class B Common Stock are outstanding, holders of Class B
Common Stock will have the right to elect 35% of the members of the board of
directors (rounded up to the next whole number), and all other members of the
board of directors will be elected by majority vote of the holders of Class A
Common Stock (and any series of preferred stock then entitled to vote at an
election of the directors). In addition, members of the board of
directors elected by holders of Class B Common Stock will have no less than
proportionate representation on each committee of the board of directors,
subject to applicable SEC and stock exchange rules and except for any committee
formed solely for the purpose of reviewing, recommending and/or authorizing any
transaction in which holders of Class B Common Stock or their affiliates (other
than Charter or its subsidiaries) are interested parties.
Under the
new Amended and Restated Certificate of Incorporation, (i) any director may be
removed for cause by the affirmative vote of a majority of the voting power of
the outstanding Class A Common Stock and Class B Common Stock (and any series of
preferred stock then entitled to vote at an election of directors), voting
together as a single class, (ii) any director elected by the holders of Class B
Common Stock voting separately as a class may be removed from office, without
cause, solely by the vote of a majority of the voting power of the outstanding
Class B Common Stock, voting as a separate class, and (iii) any director elected
by the vote of the holders of Class A Common Stock voting separately as a class
(including holders of voting preferred stock, as applicable) may be removed from
office, without cause, solely by the vote of a majority of the voting power of
the outstanding Class A Common Stock, voting separately as a class (including
any holders of voting preferred stock entitled to vote thereon).
Dividend
Rights
Subject
to limitations under Delaware law, preferences that may apply to any outstanding
shares of preferred stock, and contractual restrictions, holders of each class
of Common Stock are entitled to receive ratably dividends or other distributions
when and if declared by the board of directors. In addition to such
restrictions, whether any future dividends are paid to Charter’s stockholders
will depend on decisions that will be made by the board of directors and will
depend on then existing conditions, including Charter’s financial condition,
contractual restrictions, corporate law restrictions, capital requirements and
business prospects. The ability of the board of directors to declare
dividends also will be subject to the rights of any holders of outstanding
shares of the Charter’s preferred stock, including the Series A Preferred, and
the availability of sufficient funds under the DGCL (defined below) to pay
dividends. For a more complete description of the dividend rights of
holders of shares of Charter’s preferred stock, see the sections titled
“Description of Capital Stock—Series A 15% Pay-In-Kind Preferred Stock,” and
“—Blank Check Preferred Stock” below.
Warrants
to Purchase Class A Common Stock
Pursuant
to the Plan, Charter will issue warrants to purchase Class A Common Stock to
holders of notes issued by CIH, holders of notes issued by Charter Holdings and
Mr. Allen. The warrants will have an exercise price of, with respect
to the holders of notes issued by CIH, $46.86, and, with respect to the holders
of notes issued by Charter Holdings, $51.28, each will expire five years after
the date of issuance; the exercise price of the warrants with respect to Mr.
Allen, will be $19.80, and will expire seven years after the date of
issuance. The warrants will provide for a cashless exercise by the
warrant holder. The warrant exercise price and the number of shares issuable
upon exercise of the warrants will be subject to adjustment upon certain events
including: stock subdivisions, combinations, splits, stock dividends, capital
reorganizations, or capital reclassifications of Class A Common Stock and in
connection with certain distributions of cash, assets or
securities. In addition, holders of certain of the warrants will have
the right to participate, along with other holders of Common Stock, in future
below-market offerings of rights to purchase securities (including but not
limited to Common Stock) on an as-exercised basis. The warrants will
not be redeemable.
Liquidation
Rights
In the
event of any liquidation, dissolution or winding up of Charter, the holders of
Class A Common Stock and Class B Common Stock will be entitled to
share pari passu in the
net assets of Charter available after the payment of all debts and other
liabilities and subject to the prior rights of any outstanding Charter preferred
stock.
Preemptive
Rights
Under our
Amended and Restated Certificate of Incorporation, the holders of Class A
Common Stock and Class B Common Stock will have no preemptive
rights.
Anti-Takeover
Provisions
Our new
Amended and Restated Certificate of Incorporation will provide that the board of
directors may impose restrictions on the trading of Charter’s stock if (i)
Charter has experienced an “owner shift” as determined for purposes of Section
382 of the Internal Revenue Code of 1986, as amended, of at least 25
percentage points and (ii) the equity value of Charter has decreased by at least
35% since the Effective Date. These restrictions, which are intended to preserve
Charter’s ability to use its net operating losses, which we refer to as NOLs,
may prohibit any person from acquiring stock of Charter if such person is a “5%
shareholder” or would become a “5% shareholder” as a result of such
acquisition. The restrictions will not operate to prevent any
stockholder from disposing of shares and will be subject to certain other
exceptions relating to shares of Common Stock issued or issuable under the Plan.
The board of director’s ability to impose these restrictions will terminate on
the fifth anniversary of the date of Charter’s emergence from
bankruptcy.
In
addition, our new Amended and Restated Certificate of Incorporation, in addition
to any affirmative vote required by law or our new By-laws, a “business
combination” (as defined in the Amended and Restated Certificate of
Incorporation) involving as a party, or proposed by or on behalf of, an
“interested stockholder,” an “affiliate,” or an “associate” of the “interested
stockholder” (each as defined in the Amended and Restated Certificate of
Incorporation) or a person who upon consummation of the “business combination”
would become an “affiliate” or “associate” of an “interested stockholder”
requires, unless prohibited by law, that (i) a majority of the members of the
board of directors who are not an “affiliate” or “associate” or representative
of an “interested stockholder” must determine that the “business combination,”
including the consideration, is fair to the Company and its stockholders (other
than any “interested stockholder” or its “affiliates and associates); and (ii)
holders of a majority of the votes entitled to be cast by holders of all of the
then outstanding shares of “voting stock” (as defined in the Amended and
Restated Certificate of Incorporation), voting together as a single class
(excluding voting stock beneficially owned by any “interested stockholder” or
its “affiliate” or “associate”) must approve the transaction.
Section 203
of the DGCL provides that if a person acquires 15% or more of the voting stock
of a Delaware corporation, such person becomes an “interested stockholder” and
may not engage in certain “business combinations” with the corporation for a
period of three years from the time such person acquired 15% or more of the
corporation’s voting stock, unless: (1) the board of directors approves the
acquisition of stock or the merger transaction before the time that the person
becomes an interested stockholder, (2) the interested stockholder owns at
least 85% of the outstanding voting stock of the corporation at the time the
merger transaction commences (excluding voting stock owned by directors who are
also officers and certain employee stock plans), or (3) the merger
transaction is approved by the board of directors and by the affirmative vote at
a meeting, not by written consent, of stockholders of 2/3 of the holders of the
outstanding voting stock which is not owned by the interested
stockholder. A Delaware corporation may elect in its certificate of
incorporation or bylaws not to be governed by this particular Delaware law, or
“opt-out.” We have not elected to “opt-out.”
Preferred
Stock
Series
A 15% Pay-In-Kind Preferred Stock
Shares of
our Series A Preferred will rank senior as to dividends to shares of our Common
Stock. For the first three years after the Effective Date, each share
of Series A Preferred will be entitled to an annual dividend at the rate of 15%
of the initial liquidation preference of $25 (equivalent to $3.75 per annum per
share), payable in cash or, at the option of Charter, by issuing additional
Series A Preferred in the amount of the dividend payment, or a combination of
both. Such dividends will be cumulative and will be payable semi-annually in
arrears on January 15 and July 15 of each year. Series A Preferred
will not be convertible or exchangeable at the option of a holder thereof into
any other class or series of stock or obligations of Charter and for the first
six months after the Effective Date Series A Preferred may only be redeemed in
cash. Thereafter, Charter may redeem Series A Preferred in whole or
in part at any time upon at least 15 days prior written notice and payment of
100% of the liquidation preference,
together
with accrued and unpaid dividends thereon, whether or not declared, which
amounts would be payable in cash, our Common Stock or a combination of both. To
the extent any shares of Series A Preferred are not redeemed within the three
years following the Effective Date, Series A Preferred shall be entitled to an
annual dividend as follows: in the fourth year after the Effective Date, 17%,
and in the fifth year after the Effective Date, 19%. The terms of Series A
Preferred will require that five years after the Effective Date, Charter shall
redeem Series A Preferred at 100% of the liquidation preference, together with
accrued and unpaid dividends thereon, whether or not declared, which amounts
will be payable in cash, our Common Stock or a combination of both. Any
redemption payment in our Common Stock may not exceed 20% of the fully diluted
Common Stock at the time of such redemption payment. In the event of Charter’s
voluntary or involuntary liquidation, winding-up, bankruptcy or dissolution,
after payment in full of all amounts owed to the debtors’ creditors and any
stock senior to Series A Preferred, holders of Series A Preferred will be
entitled to receive and to be paid out of the Charter’s assets available for
distribution to its stockholders, before any payment or distribution is made to
holders of junior stock (including Common Stock), a liquidation preference in
the amount of $25 per share of Series A Preferred, plus accumulated and unpaid
dividends on the shares to the payment date of liquidation, winding-up,
bankruptcy or dissolution. If, upon Charter’s voluntary or involuntary
liquidation, winding up, bankruptcy or dissolution, the amounts payable with
respect to the liquidation preference of the Series A Preferred and all stock
pari passu to Series A
Preferred are not paid in full, the holders of Series A Preferred and such pari passu stock will share
equally and ratably in any distribution of Charter’s assets in proportion to the
full liquidation preference and accumulated and unpaid dividends to which they
are entitled. In each case, after the payment in full of all amounts owed to the
debtors’ creditors and all amounts owed to holders of Series A Preferred or any
other preferred stock outstanding, the remaining assets of Charter will be
distributed ratably to the holders of shares of Common Stock, treated as a
single class. The rights, preferences and privileges of holders of shares of
Common Stock will be subject to, and may be adversely affected by, the rights of
the holders of shares of Series A Preferred as well as any series of preferred
stock which Charter may designate and issue in the future without stockholder
approval.
Blank
Check Preferred Stock
Under the
terms of the new Amended and Restated Certificate of Incorporation, the board of
directors will be authorized to issue from time to time up to an aggregate of
approximately 250 million shares of additional series of preferred stock and to
fix or alter the designations, preferences, rights and any qualifications,
limitations or restrictions of the shares of each series, including the dividend
rights, dividend rates, conversion rights, voting rights, rights and terms of
redemption (including sinking fund provisions), redemption price or prices,
liquidation preferences and the number of shares constituting any series. These
additional shares may be used for a variety of corporate purposes, including
future public offerings, to raise additional capital or to facilitate
acquisitions. If the board of directors decides to issue shares to persons
supportive of current management, this could render more difficult or discourage
an attempt to obtain control of the company by means of a merger, tender offer,
proxy contest or otherwise. Authorized but unissued shares also could be used to
dilute the stock ownership of persons seeking to obtain control of
Charter.
Transfer
Agent and Registrar
Mellon
Investor Services, LLC is the transfer agent and registrar for our Class A
Common Stock.
Listing
of Our Common Stock
We intend
to apply to list our Class A Common Stock on NASDAQ under the trading
symbol “CHTR.”
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Item
5.
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Interests
of Named Experts and Counsel.
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The
validity of the common stock offered hereby will be passed upon for the Company
by Kirkland & Ellis LLP (a partnership that includes professional
corporations), New York, New York.
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Item
6.
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Indemnification
of Directors and Officers.
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The
Company is incorporated under the laws of the State of
Delaware. Section 145 (“Section 145”) of the Delaware General
Corporation Law, as the same exists or may hereafter be amended (the “DGCL”),
provides that a Delaware corporation may indemnify any persons who were, are or
are threatened to be made, parties to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such corporation), by
reason of the fact that such person is or was an officer, director, employee or
agent of such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation or
enterprise. The indemnity may include expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding,
provided such person acted in good faith and in a manner he reasonably believed
to be in or not opposed to the corporation’s best interests and, with respect to
any criminal action or proceeding, had no reasonable cause to believe that his
conduct was illegal. Section 145(b) of the DGCL provides that a
Delaware corporation may indemnify officers and directors in an action by or in
the right of the corporation under the same conditions, except that no
indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an
officer, director, employee or agent is successful on the merits or otherwise in
the defense of any action referred to above, the corporation must indemnify him
against the expenses which such officer or director has actually and reasonably
incurred.
Section
145(g) of the DGCL provides that a corporation shall have the power to purchase
and maintain insurance on behalf of any person who is or was a director or
officer of the corporation against any liability asserted against the person in
any such capacity, or arising out of the person’s status as such, whether or not
the corporation would have the power to indemnify the person against such
liability under the provisions of the DGCL.
Article
VII of the Company’s amended and restated certificate of incorporation provides
that a director of the Company shall not be personally liable to the Company or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except to the extent such exemption from liability or limitation
thereof is not permitted under Delaware law. Article X of the
Company’s amended and restated bylaws provides for indemnification of the
officers and directors of the Company to the fullest extent permitted by the
DGCL.
The
foregoing is only a general summary of certain aspects of Delaware law and the
registrant’s organizational documents dealing with indemnification of directors
and officers and does not purport to be complete. It is qualified in its
entirety by reference to the applicable provisions of the DGCL and of the
registrant’s amended and restated certificate of incorporation and
bylaws.
The
Company expects to enter into indemnification agreements with its directors and
certain of its officers. The indemnification agreements shall provide
indemnification to the Company’s directors and such officers under certain
circumstances for acts or omissions which may not be covered by directors’ and
officers’ liability insurance, and may, in some cases, be broader than the
specific indemnification provisions contained under Delaware law. The Company
has obtained directors’ and officers’ liability insurance, which insures against
liabilities that its directors or officers may incur in such
capacities.
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Item
7.
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Exemption from Registration
Claimed. None.
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Item
8.
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Exhibits. Reference
is made to the attached Exhibit Index, which is incorporated by reference
herein.
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(a) The
undersigned registrant hereby undertakes:
(1) To file,
during any period in which offers or sales are being made, a post-effective
amendment to the Registration Statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities
Act;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the Registration Statement (or most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement. Notwithstanding
the foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective
Registration Statement; and