As filed with the Securities and Exchange Commission on May __, 2001.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Charter Communications, Inc.
(Exact Name of Registrant as Specified in its Charter)
Delaware 43-1857213
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
12444 Powerscourt Drive
St. Louis, Missouri 63131
(Address of Principal Executive Offices)
Charter Communications, Inc. 2001 Stock Incentive Plan
(Full title of the Plan)
Curtis S. Shaw
Senior Vice President, General Counsel and Secretary
Charter Communications, Inc.
12444 Powerscourt Drive
St. Louis, Missouri 63131
(Name and Address of Agent for Service)
(314) 965-0555
(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Leigh P. Ryan, Esq.
Paul, Hastings, Janofsky & Walker LLP
399 Park Avenue
New York, New York 10022
Telephone: (212) 318-6000
CALCULATION OF REGISTRATION FEE
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Title of Securities to be Registered Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Offering Aggregate Registration Fee
Price Per Share Offering Price
(1) (1)
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Class A Common Stock, par value $0.001 38,895,911 $ $ $215,984.66
====================================================================================================================================
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h) under the Securities Act of 1933 as follows:
(i) in the case of shares of Charter Communications, Inc. Class A common
stock, par value $0.001 (the "Common Stock") upon exercise of outstanding
options granted under the Charter Communications, Inc. 2001 Stock
Incentive Plan, the fee is calculated on the basis of the price at which
the
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outstanding options may be exercised: 6,742,830 options exercisable at
$23.0938 per share; and 1,410,000 options exercisable at $21.195 per
share; and (ii) in the case of shares of Common Stock for which options
have not yet been granted and the option price of which is therefore
unknown, the fee is calculated on the basis of (i) the average of the
high and low sale prices per share of Common Stock as quoted on the
Nasdaq National Market on May 16, 2001 (within 5 business days prior to
filing this Registration Statement).
(2) Represents the aggregate number of shares of Common Stock which may be
issued upon the exercise of options which have been granted and/or may
hereafter be granted under the plan.
EXPLANATORY NOTE
In May 2000, the Company filed a registration statement on Form S-8
(333-36688) registering 25,009,798 shares of Common Stock issuable in exchange
for membership units received upon the exercise of options granted under the
1999 Charter Communications Option Plan (the "1999 Option Plan"). In February
2001, the Board of Directors of the Company approved the adoption of the Charter
Communications, Inc. 2001 Stock Incentive Plan (the "2001 Incentive Plan"),
subject to the approval of the Company's shareholders which is expected to occur
in June 2001. Upon effectiveness of the 2001 Incentive Plan, the Company will
have a total of 60,000,000 shares of its Class A common stock available for the
grant of options and other stock-based benefits under the 1999 Option Plan and
the 2001 Incentive Plan or, in the alternative, the Company can use shares
available under the 2001 Incentive Plan for stock-based benefits other than
options.
The 1999 Option Plan provided for options covering up to 25,009,798
membership units in Charter Communications Holding Company, LLC (a direct
subsidiary of the Company) which are exchanged immediately upon issuance for
shares of the Company's Class A common stock on a one-for-one basis. To ensure
that the combined number of shares covered by both plans would be 60,000,000,
the 1999 Option Plan was amended to provide that any unissued shares, including
those that become available as a result of termination of an option under the
terms of the 1999 Option Plan, be removed from the 1999 Option Plan and be added
to the 2001 Incentive Plan. The 2001 Incentive Plan, in turn, provides that it
starts with 38,895,911 shares available, with the number to increase
automatically by the number of options removed from under the 1999 Option Plan.
Thus, the number of shares covered by each plan changes on a daily basis, but in
no event will the total under both plans exceed 60,000,000 shares.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
The documents containing the information specified in this Item will
be sent or given to participants under the 2001 Incentive Plan and, in
accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission"), are not being filed with, or included in, this
Registration Statement on Form S-8 (the "Registration Statement").
Item 2. Registrant Information and Employee Plan Annual Information
The documents containing the information specified in this Item will
be sent or given to participants in the 2001 Incentive Plan. In accordance with
Rule 428 and the requirements of
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Part I of Form S-8, such documents are not being filed with, or included in,
this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents and information filed with the Securities and
Exchange Commission (the "Commission") is incorporated herein by reference:
1) The registrant's Annual Report filed on Form 10-K on March 6,
2001.
2) The description of the Common Stock contained in the
registrant's prospectus filed pursuant to Rule 424(b)(3) on
May 17, 2001, pursuant to the Securities Act of 1933, as
amended (the "Securities Act").
3) The registrant's Quarterly Report filed on Form 10-Q on May
15, 2001.
4) The registrant's Current Report on Form 8-K filed with the
Commission on January 8, 2001.
5) The registrant's Current Report on Form 8-K filed with the
Commission on February 15, 2001.
6) The registrant's Current Report on Form 8-K filed with the
Commission on March 1, 2001.
7) The registrant's Proxy Statement filed with the Commission on
April 27, 2001, relating to the 2001 annual meeting of
stockholders.
8) The registrant's Current Report on Form 8-K filed with the
Commission on May 4, 2001.
9) The registrant's Current Report on Form 8-K filed with the
Commission on May 9, 2001.
Any statement contained in a document 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. In addition, all documents
filed by the registrant with the Commission pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this registration statement
and prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold shall be deemed to be incorporated by reference into this
registration statement and to be a part hereof from the date of filing of such
documents with the Commission.
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Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law permits a
corporation to include in its charter documents and in agreements between the
corporation and its directors and officers, provisions expanding the scope of
indemnification beyond that specifically provided by current law.
The registrant's certificate of incorporation provides that a
director of the registrant shall not be personally liable to the registrant or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability: (i) for any breach of the directors' duty of
loyalty to the registrant or its stockholders; (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law; (iii) under Section 174 of the Delaware General Corporation law; or (iv)
for any transaction from which the director derived an improper personal
benefit.
The registrant's bylaws require the registrant, to the fullest extent
authorized by the Delaware General Corporation Law, to indemnify any person who
was or is made a party or is threatened to be made a party or is otherwise
involved in any action, suit or proceeding by reason of the fact that he is or
was a director or officer of the registrant or is or was serving at the request
of the registrant as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
entity or enterprise, in each case, against all expense, liability and loss
(including attorneys' fees, judgments, amounts paid in settlement, fines, ERISA
excise taxes or penalties) reasonably incurred or suffered by such person in
connection therewith.
The registrant has entered into agreements to indemnify Jerald L.
Kent, the President and Chief Executive Officer of the registrant, and Howard L.
Wood, a member of the Board of Directors of the registrant, against claims,
damages, liabilities, losses or expenses incurred or suffered by either of them
in connection with or arising out of their performance of their respective
duties as an officer or director of the registrant.
The registrant has obtained directors' and officers' liability
insurance policies which are intended to insure such person against certain
liabilities incurred in their respective capacities as directors and officers of
the registrant.
Item 7. Exemption from Registration Claimed.
Not applicable.
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Item 8. Exhibits.
The exhibits filed as part of this registration statement are as
follows:
Exhibit No. Description Sequential
----------- ----------- Page No.
--------
4.1 Charter Communications, Inc. 2001 Stock Incentive Plan
(incorporated by reference to the quarterly report on Form 10-Q
of Charter Communications, Inc. filed on May 15, 2001 (File
No.000-27927))
5.1 Opinion of Paul, Hastings, Janofsky & Walker LLP
23.1 Consent of Paul, Hastings, Janofsky & Walker LLP (contained in
exhibit 5.1 of this Registration Statement)
23.2 Consent of Arthur Andersen LLP 23.3 Consent of Ernst & Young LLP
23.4 Consent of KPMG LLP
23.5 Consent of Ernst & Young LLP
24.1 Power of Attorney (included on the signature page of this
Registration Statement)
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
A. (1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this 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 the 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 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (A) (1) (i) and (A) (1) (ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed or furnished to the Commission
by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this registration statement.
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(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act, and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred by a director, officer or controlling person of
the registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question of whether such indemnification by it
is against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of St. Louis, State of Missouri, on May 21, 2001.
Charter Communications, Inc.
(registrant)
By: /s/ Curtis S. Shaw
----------------------
Curtis S. Shaw
Senior Vice President,
General Counsel
and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Curtis S. Shaw, with full power to act as
his true and lawful attorney-in-fact and agent or agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to the registration statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and any other regulatory authority, granting
unto said attorney-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agents, or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed by the following persons in
the capacities and on the dates indicated.
Signature Title Date
/s/ Paul G. Allen Chairman of the Board of Directors May 21, 2001
-------------------------------
Paul G. Allen
/s/ William D. Savoy Director May 21, 2001
-------------------------------
William D. Savoy
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/s/ Jerald L. Kent President, Chief Executive Officer and May 21, 2001
------------------------------- Director
Jerald L. Kent
/s/ Kent D. Kalkwarf Executive Vice President and May 21, 2001
------------------------------- Chief Financial Officer
Kent D. Kalkwarf
/s/ Marc B. Nathanson Director May 21, 2001
-------------------------------
Marc B. Nathanson
/s/ Ronald L. Nelson Director May 21, 2001
-------------------------------
Ronald L. Nelson
/s/ Nancy B. Peretsman Director May 21, 2001
-------------------------------
Nancy B. Peretsman
/s/ Howard L. Wood Director May 21, 2001
-------------------------
Howard L. Wood
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EXHIBIT INDEX
Exhibit No. Description Sequential
----------- ----------- Page No.
--------
4.1 Charter Communications, Inc. 2001 Stock Incentive Plan
(incorporated by reference to the quarterly report on Form 10-Q
of Charter Communications, Inc. filed on May 15, 2001 (File
No.000-27927))
5.1 Opinion of Paul, Hastings, Janofsky & Walker LLP
23.1 Consent of Paul, Hastings, Janofsky & Walker LLP (contained in
exhibit 5.1 of this Registration Statement)
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Ernst & Young LLP
23.4 Consent of KPMG LLP 23.5 Consent of Ernst & Young LLP
24.1 Power of Attorney (included on the signature page of this
Registration Statement)