Exhibit 10.6
PUT AGREEMENT
Entered into as of April 13,
2005
between
UNITEDGLOBALCOM, INC.
and
CRISTALERÍAS DE CHILE S.A.
TABLE OF CONTENTS
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PUT AGREEMENT
This Put Agreement is entered into
as of April 13, 2005, by and between
UNITEDGLOBALCOM, INC.
, a corporation duly incorporated
and validly existing under the Laws of the State of Delaware,
U.S.A., with domicile at 4643 South Ulster Street, Suite 1300,
Denver, CO 80237, U.S.A. (the “ Purchaser ” or
“ UGC ”); and
CRISTALERÍAS DE CHILE
S.A., a sociedad
anónima duly organized and validly existing under the Laws
of Chile, with domicile at Hendaya 60, Suite 201, Las Condes,
Santiago, Chile (“ CCC ”).
UGC and CCC (together with their respective
successors and permitted assigns) are sometimes referred to herein
individually as a “ Party ” and collectively as
the “ Parties .” Capitalized terms used
and not otherwise defined in this Agreement have the respective
meanings ascribed thereto in Article I.
RECITALS
A.
CCC owns 11,438,360 Shares, which
represent 20% of the issued and outstanding share capital of VTR
GlobalCom S.A., a Chilean sociedad anónima (“
VTR ”).
B.
The Parties desire to enter into
this Agreement to establish certain rights, responsibilities, and
obligations by and between themselves.
C.
It is the intention of the Parties
that if the Put Price (as defined below) is paid in whole or in
part in the form of Issuer Securities (as defined below), then such
payment will provide CCC the economic equivalent of payment in
cash, and therefore the Parties have agreed upon the provisions of
Article III in order to effect such equivalence.
AGREEMENT
In consideration of the mutual
promises, covenants, and agreements set forth herein and other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties hereby agree as
follows:
For purposes of this Agreement, the
following terms will have the following meanings:
Affiliate : Affiliate of a Person means any Person
that directly, or indirectly through one or more intermediaries,
Controls, is Controlled by, or is under common Control with, the
Person in question.
Agreement : This Put Agreement.
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Appraisal Assumptions
: As defined in the definition
of “Closing Sale Price,” the definition of “Share
Closing Sale Price,” or Section 3.2, as the case may
be.
Appraisal Procedure
: The appraisal procedure
described in Section 3.11.
Appraisal Trigger Date
: As defined in the definition
of “Closing Sale Price,” the definition of “Share
Closing Sale Price,” or Section 3.2, as the case may
be.
Appraised Amount
: As defined in the
definition of “Closing Sale Price,” the definition of
“Share Closing Sale Price,” or Section 3.2, as the
case may be.
Appraised Put Value
: The price at which all, but
not less than all, of the Shares owned by one or more members of
the CCC Control Group could be sold in an arm’s length
transaction to an unaffiliated bona fide third-party
purchaser in an ordinary sale of such Shares and assuming the
applicable Appraisal Assumptions.
Average Closing Price
: In respect of a Share or an Issuer
Security, on any date of determination, the average of the Share
Closing Sale Prices or Closing Sale Prices, respectively, for 40
consecutive Trading Days ending on the date of
determination.
Business Day
: Any day other than Saturday,
Sunday, and a day on which banks in Denver, Colorado, U.S.A. or
Santiago, Chile are required or permitted to close.
Cash Settlement
: As defined in
Section 3.5(a).
CCC : As defined in the preamble.
CCC Control Group
: The CCC Control Group
consists of CCC and its Subsidiaries and Parents.
CCC Debt DPPO
: As defined in the Purchase
and Contribution Agreement.
CCC Director
: Any member of the Board of
Directors of VTR nominated by CCC in accordance with
Section 3.2(b)(i) of the Shareholders Agreement
(including any alternate director therefor).
CCC Process Agent
: As defined in
Section 5.4.
Chile : The Republic of Chile.
Chilean Pesos
: Pesos, the lawful currency
of Chile.
Closing Sale Price
: On any date of
determination, either (a) the closing per share sale price (or
if no closing per share sale price is reported, the average of the
bid and ask prices or, if more than one in either case, the average
of the average bid and the average ask prices) of one share of the
Issuer Securities on such date on the Nasdaq National Market as
reported by the Nasdaq National Market, or if the Issuer Securities
are not then quoted on the Nasdaq National Market, on the principal
United States securities exchange on which the Issuer Securities
are
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listed, as reported in composite transactions
(if applicable), or, if the Issuer Securities are not listed on a
United States securities exchange, as reported by the National
Quotation Bureau Incorporated or similar organization; or
(b) if the preceding clause (a) is not applicable or none
of the information described therein is available, the fair market
value of a share of the Issuer Securities (i) as agreed by CCC
and the Purchaser or (ii) if CCC and the Purchaser fail to
agree on such fair market value and such failure to agree continues
for 20 Business Days, then as determined pursuant to the Appraisal
Procedure in Section 3.11, for purposes of which (A) the
“ Appraised Amount ” will be such fair market
value, (B) the “ Appraisal Trigger Date ”
will be the end of such 20-Business-Day period, and (C) the
“ Appraisal Assumptions ” will be (1) no
discount for the fact that such share represents only a minority
interest in the Issuer; and (2) that all necessary consents,
waivers, and approvals required to effect such a sale, if any,
could be obtained.
Combined Settlement
: As defined in
Section 3.5(a).
Commission
: As defined in
Section 3.6(a)(i).
Contract : Any note, bond, indenture, debenture,
security agreement, trust agreement, mortgage, lease, contract,
license, franchise, permit, guaranty, joint venture agreement, or
other agreement, instrument, commitment, or obligation, whether
oral or written.
Control : The ability to direct or cause the
direction (whether through the ownership of voting securities, by
contract, or otherwise) of the management and policies of a Person
or to control (whether affirmatively or negatively and whether
through the ownership of voting securities, by contract, or
otherwise) the decision of such Person to engage in the particular
conduct at issue. A Person will be rebuttably presumed to
control an Entity if such Person owns, directly or indirectly
through one or more intermediaries, (a) sufficient shares of
stock or other equity interests of such Entity to allow such
Person, under ordinary circumstances, to elect or direct the
election of a majority of the members of the board of directors or
other governing body of such Entity or (b) shares of stock or
other equity interests of such Entity representing, in the
aggregate, more than 50% of the aggregate outstanding economic
interests in such Entity.
Corporations Law
: Chilean Law N°18,046
on Corporations (Ley de Sociedades Anónimas)
.
Damages : As defined in
Section 3.8(a).
Debt Interests
: As defined in
Section 3.1.
Director : A member of the Board of Directors of
VTR.
Dollars : Dollars, the lawful currency of the
U.S.
Effectiveness Period
: As defined in
Section 3.6(a)(i).
Entity : Any sociedad anónima ,
sociedad de responsabilidad limitada , corporation, general
or limited partnership, limited liability company, joint venture,
trust, association, unincorporated entity of any kind, or
Governmental Authority.
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Equity Interests
: Shares and Preemptive
Rights of any shareholder in VTR and any of its Subsidiaries, and
interests in such Shares or Preemptive Rights.
Exchange Act
: The U.S. Securities Exchange
Act of 1934.
Exercise Period
: As defined in
Section 3.1.
Floor Price
: As defined in
Section 3.1.
Governing Documents
: The estatutos
sociales , escritura de constitución social ,
articles or certificate of incorporation or association, general or
limited partnership agreement, limited liability company or
operating agreement, bylaws, or other governing documents of any
Entity.
Governmental Authority
: Any U.S. federal, regional,
or local, or any Chilean or other foreign, court, governmental
department, commission, authority, board, bureau, agency, official,
or other instrumentality.
Issuer : As defined in
Section 3.5(a).
Issuer Securities
: As defined in
Section 3.5(a).
Judgment : Any judgment, writ, order, decree,
injunction, award, restraining order, or ruling of or by any court,
judge, justice, arbitrator, or magistrate, including any bankruptcy
court or judge, and any writ, order, decree, or ruling of or by any
Governmental Authority.
Law : Any federal, regional, or local, or any
Chilean or other foreign, statute, code, ordinance, rule,
regulation, Judgment, regulatory agreement with a Governmental
Authority, or general principle of common or civil law or
equity.
Liberty Global
: Liberty Global, Inc., a
Delaware U.S.A. corporation, or, if such Entity is not the ultimate
Parent of UGC immediately following the consummation of the
transactions contemplated by the UGC/LMI Merger Agreement, then the
Entity that is the ultimate Parent of UGC immediately following
such consummation.
LIBOR : The rate per annum (rounded upward, if
necessary to the next 10,000th of 1%) equal to the three month
eurodollar rate as published in The Wall Street Journal in the
Money Rates section thereof three Business Days prior to the
date on which interest is to begin to accrue under the applicable
provision of this Agreement; provided , however ,
that if such rate is no longer published in The Wall Street
Journal, then such rate will be the rate per annum (rounded upward,
if necessary to the next 10,000 of 1%) quoted by the principal
office of Lloyds TSB Bank PLC in London, England to leading banks
for the offering of three month deposits in Dollars in the London
interbank market at or about 11:00 a.m. (London time) on the
date three Business Days prior to the date on which interest is to
begin to accrue under the applicable provision of this
Agreement.
Licenses : All franchises, concessions, licenses,
permits, authorizations, certificates, variances, exemptions,
consents, leases, rights of way, easements, instruments, orders,
and approvals issued by or pending with any Governmental
Authority.
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Lien : Any (a) security agreement,
conditional sale agreement, or other title retention agreement;
(b) lease, consignment, or bailment given for security
purposes; and (c) lien, charge, restrictive agreement,
prohibition against transfer, mortgage, pledge, option,
encumbrance, adverse interest, security interest, claim,
attachment, exception to or defect in title, or other ownership
interest (including reservations, rights of entry, possibilities of
reverter, encroachments, easements, rights of way, restrictive
covenants, leases, and Licenses granted to other Persons) of any
kind, but excluding any of the foregoing created or imposed by or
pursuant to this Agreement or the Shareholders
Agreement.
LMC : Liberty Media Corporation, a Delaware
U.S.A. corporation.
LMI : Liberty Media International, Inc.,
a Delaware U.S.A. corporation.
Market Value
: As defined in
Section 3.3.
Notice and
Questionnaire : As
defined in Section 3.6(b).
Observado Exchange
Rate : The Observado
Exchange Rate means, for any given date, the exchange rate Chilean
Pesos/Dollars published by the Central Bank of Chile in the
Official Gazette for such date, pursuant to Chapter I of Title I of
the Compendium of Foreign Exchange Regulations (or, if the Central
Bank of Chile ceases to publish such exchange rate, the exchange
rate replacing such exchange rate). If the Observado Exchange
Rate is not so available for any reason, the Observado Exchange
Rate will mean the Observado Exchange Rate published in the manner
set forth above on the Business Day immediately preceding such
date.
Official Gazette
: The Diario Oficial de la
República de Chile .
Parent : Parent of any Entity means any Person of
which that Entity is its Subsidiary.
Partial Cash Amount
: As defined in
Section 3.5(a).
Partial Equity Amount
: As defined in
Section 3.5(d).
Party or Parties : As defined in the
preamble.
Percentage Amount
: As defined in
Section 3.10(c)
Permitted Interruption
: As defined in
Section 3.6(c).
Person : Any natural person or Entity.
Preemptive Rights
: The preferred rights that
the shareholders of a sociedad anónima have, pursuant
to Article 25 of the Corporations Law, entitling them to
purchase newly issued shares of such sociedad anónima
in accordance with their pro rata shareholding.
Prospectus
: As defined in
Section 3.6(a)(i).
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Purchase and Contribution
Agreement : The Purchase
and Contribution Agreement, dated as of the date hereof, by and
among CCC, VTR and Liberty Comunicaciones de Chile Uno Ltda., a
Chilean sociedad de responsabilidad limitada .
Purchaser : As defined in the preamble.
Put Closing
: As defined in
Section 3.4.
Put Notice
: As defined in
Section 3.1.
Put Price : As defined in
Section 3.1.
Qualified Appraiser
: Each of the following
international investment banks: Goldman Sachs & Co.,
J.P. Morgan Chase & Co., Merrill Lynch, and UBS A.G.,
and any other international investment banks agreed by CCC and the
Purchaser, and if a third Qualified Appraiser is to be appointed by
the ICC Centre for Expertise pursuant to
Section 3.11(c) but none of the foregoing international
investment banks is able to satisfy the requirements of the second
sentence of Section 3.11(c), then any other international
investment bank that is able to satisfy the requirements of such
second sentence and is appointed by ICC Centre for
Expertise.
Qualified IPO
: An initial offering by VTR
of its Shares to the public in Chile (oferta pública
inicial de acciones) , either directly or through underwriters
or agents, in either case with prior registration of such Shares
with the applicable Chilean Governmental Authority, with formal
secondary trading to be conducted as provided by Chilean Law on or
through a stock exchange or automated quotation system, and
resulting in the distribution to the public of at least 20% of the
issued and outstanding Shares immediately after such
distribution.
Registration Default
: As defined in
Section 3.10(a).
Registration Default Cure
Date : As defined
in Section 3.10(a).
Registration Default
Interest : As
defined in Section 3.10(a).
Registration Default Interest
Rate : A rate per
annum equal to LIBOR plus 3%.
Registration Statement
: As defined in
Section 3.6(a)(i).
Restricted Securities
: As defined in
Section 3.10(a).
Restriction
: With respect to any share
capital, partnership interest, membership right or membership
interest in a limited liability company, or other equity interest
or security: any voting or other trust or agreement, option,
warrant, preemptive right (other than imposed by applicable Law),
right of first offer, right of first refusal, escrow arrangement,
proxy, buy-sell agreement, power of attorney, or other Contract
(but excluding this Agreement, the Purchase and Contribution
Agreement or the Shareholders Agreement), or any License that,
conditionally or unconditionally, (a) grants to any Person the
right to purchase or otherwise acquire, or obligates any Person to
Sell or otherwise dispose of or issue, or otherwise gives or,
whether upon the occurrence of any event or with notice or lapse of
time or both or otherwise, may give any
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Person the right to acquire (i) any such
share capital, partnership interest, membership right or membership
interest in a limited liability company, or other equity interest
or security; (ii) any proceeds of, or any distributions paid
or that are or may become payable with respect to, any such share
capital, partnership interest, membership right or membership
interest in a limited liability company, or other equity interest
or security; or (iii) any interest in such share capital,
partnership interest, membership right or membership interest in a
limited liability company, or other equity interest or security or
any such proceeds or distributions; (b) restricts or, whether
upon the occurrence of any event or with notice or lapse of time or
both or otherwise, is reasonably likely to restrict the transfer or
voting of, or the exercise of any rights or the enjoyment of any
benefits arising by reason of ownership of, any such share capital,
partnership interest, membership right or membership interest in a
limited liability company, or other equity interest or security or
any such proceeds or distributions; or (c) creates or, whether
upon the occurrence of any event or with notice or lapse of time or
both or otherwise, is reasonably likely to create a Lien or
purported Lien affecting such share capital, partnership interest,
membership right or membership interest in a limited liability
company, or other equity interest or security, proceeds or
distributions.
Rules of
Expertise : The
Rules for Expertise of the International Chamber of
Commerce.
Sale : Any sale, assignment, gift, exchange, or
other transfer or disposition of any equity interests, whether
direct or indirect (including by operation of Law through a merger
or consolidation, as well as any repossession, foreclosure or
similar action by a creditor). The terms “ Sell
” and “ Sold ” have meanings correlative
to that of Sale.
Sale Proceeds
: As defined in
Section 3.10(c).
Securities Act
: The U.S. Securities Act of
1933.
Settlement Method
: As defined in
Section 3.5(a).
Share : A registered share of VTR.
Share Closing Sale
Price : On any date
of determination, either (a) the closing per share sale price
(or if no closing per share sale price is reported, the average of
the bid and ask prices or, if more than one in either case, the
average of the average bid and the average ask prices) of one Share
on such date on the principal securities exchange on which Shares
are then trading, or if Shares are not traded on a securities
exchange but are quoted on a quotation system, the last sales price
per Share (or if no last sales price per Share is reported, the
average of the bid and ask prices or, if more than one in either
case, the average of the average bid and the average ask prices) of
one Share on such date, as quoted on such quotation system; or
(b) if the preceding clause (a) is not applicable or none
of the information described therein is available, the fair market
value of a Share (i) as agreed by CCC and the Purchaser, or
(ii) if CCC and the Purchaser fail to agree on such fair
market value and such failure to agree continues for 20 Business
Days, then as determined pursuant to the Appraisal Procedure in
Section 3.11, for purposes of which (A) the “
Appraised Amount ” will be such fair market value,
(B) the “ Appraisal Trigger Date ” will be
the end of such 20-Business-Day period, and (C) the “
Appraisal Assumptions ” will be (1) no discount
for the fact that such Share represents only a minority interest in
VTR; (2) that all
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necessary consents, waivers, and approvals
required to effect such a sale, if any, could be obtained; and
(3) that all Indebtedness owed by VTR or any of its
Subsidiaries to a Shareholder or any of its Affiliates is treated
as Indebtedness owed to a third party that is not a
Shareholder.
Share Settlement
: As defined in
Section 3.5(a).
Shareholder
: As defined in the
Shareholders Agreement.
Shareholders Agreement
: The Shareholders Agreement,
dated as of the date hereof, among United Chile, United Chile
Ventures, CCC, and VTR.
Subsidiary
: With respect to any
Person:
(a)
a corporation a majority in voting
power of whose share capital with voting power, under ordinary
circumstances, to elect directors is at the time, directly or
indirectly, owned by such Person, by a Subsidiary of such Person,
or by such Person and one or more Subsidiaries of such
Person,
(b)
a partnership or limited liability
company in which such Person or a Subsidiary of such Person is, at
the date of determination, (i) in the case of a partnership, a
general partner of such partnership with the power affirmatively to
direct the policies and management of such partnership or
(ii) in the case of a limited liability company, the managing
member or, in the absence of a managing member, a member with the
power affirmatively to direct the policies and management of such
limited liability company, or
(c)
any Entity (other than a
corporation, partnership, or limited liability company) in which
such Person, a Subsidiary of such Person, or such Person and one or
more Subsidiaries of such Person, directly or indirectly, at the
date of determination thereof, has (i) the power to elect or
direct the election of a majority of the members of the governing
body of such Person or (ii) in the absence of such a governing
body, at least a majority ownership interest.
Trading Day
: A day during which trading
in securities generally occurs on the principal securities exchange
or quotation system, as the case may be, on which Shares or Issuer
Securities, as the case may be, are then trading or quoted, other
than a day on which a material suspension of or limitation on
trading is imposed that affects either such principal securities
exchange or quotation system in its entirety or only Shares or
Issuer Securities, as the case may be, (by reason of movements in
price exceeding limits permitted by the such principal securities
exchange or quotation system or otherwise) or on which such
principal securities exchange or quotation system cannot clear the
transfer of Shares or Issuer Securities, as the case may
be.
Transfer : Any Sale of, pledge of, or any creation,
incurrence, assumption, or grant of a Lien on, or other transfer or
disposition of, any equity interests, whether direct or
indirect.
UGC : As defined in the preamble.
UGC/LMI Merger
Agreement : The
Agreement and Plan of Merger, dated as of January 17, 2005, by
and among New Cheetah, Inc., a Delaware corporation, LMI, UGC,
Cheetah
8
Acquisition Corp., a Delaware corporation, and
Tiger Global Acquisition Corp., a Delaware corporation.
UGC Process Agent
: As defined in
Section 5.4.
United Chile
: United Chile, Inc., a
Colorado, U.S.A. corporation.
United Chile Ventures
: United Chile Ventures Inc.,
a Cayman Islands corporation.
United Control Group
: The United Control Group
consists of LMI, UGC, each United Shareholder, and each of their
respective Affiliates, including Liberty Global and its Affiliates
after the consummation of the transactions contemplated by the
UGC/LMI Merger Agreement.
United Shareholders
: Each of United Chile,
United Chile Ventures, and each member of the United Control Group
that (a) is or becomes the owner of Shares and (b) is or
has become a Party to the Shareholders Agreement.
Uno : Liberty Comunicaciones de Chile Uno Ltda., a
Chilean sociedad de responsabilidad limitada .
U.S. or U.S.A.
: United States of
America.
US$ or $ : Dollars.
Violation : As defined in
Section 3.8(a).
VTR : As defined in the recitals.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Each Party hereby represents and
warrants with respect to itself to the other Parties as
follows:
Section 2.1
Organization; Power and
Authority .
(a)
Organization
. It is
duly organized, validly existing, and in good standing under the
Laws of its jurisdiction of organization.
(b)
Power and
Authority . It has all requisite
power and authority to enter into and perform its obligations under
this Agreement; and its execution and delivery of this Agreement
and the performance of its obligations hereunder have been duly
authorized by all requisite action.
Section 2.2
Validity . This Agreement has been duly executed
and delivered by it, and, assuming the due execution and delivery
by each other Party, this Agreement constitutes its legal, valid,
and binding obligation, enforceable against it in accordance with
its terms, except as such enforceability may be affected by
applicable bankruptcy, reorganization, insolvency, moratorium, or
similar Laws affecting creditors’ rights
generally.
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Section 2.3
Required Consents
. It has obtained all
authorizations, permits, approvals, waivers, or consents of,
delivered all notices to, and made all registrations, declarations,
applications, or filings with, any Persons required in connection
with its execution and delivery of, and its performance of its
obligations required on the date hereof under, this Agreement,
except as would not, individually or in the aggregate, materially
adversely affect its ability to perform its obligations
hereunder.
Section 2.4
No Conflicts
. Its execution and delivery
hereof, and its performance of its obligations hereunder, do not
(a) violate or conflict with any provision of its Governing
Documents, (b) violate any of the terms, conditions, or
provisions of any Law or License to which it is subject or by which
it or any of its assets is bound, except that no representation is
made with respect to any Law of any foreign jurisdiction in which
it does not, directly or through a Subsidiary, own assets or engage
in business, or (c) violate, breach, or (with or without the
giving of notice or lapse of time or both) constitute a default (or
give rise to any right of termination, cancellation, acceleration,
repurchase, prepayment, repayment, or increased payments) under, or
give rise to or accelerate any material obligation (including any
obligation to, or to offer to, repurchase, prepay, repay, or make
increased payments), or result in the loss or modification of any
material benefit under, or pursuant to, any Contract to which it is
a party or by which it or any of its assets is bound, except in
each case as would not, individually or in the aggregate,
materially adversely affect its ability to perform its obligations
hereunder.
Section 3.1
Exercise Period; Put
Price . Beginning
on the first anniversary of the date hereof and ending on the tenth
anniversary of the date hereof (the “ Exercise Period
”) and subject to Section 5.4 of the Shareholders
Agreement, CCC may on no more than one occasion (unless
subsequently deemed withdrawn pursuant to
Section 5.4(b)(iv) or 5.4(c)(iii) of the
Shareholders Agreement) give a notice (the “ Put
Notice ”) to the Purchaser stating the intention of all
members of the CCC Control Group owning Equity Interests to sell,
assign, and transfer all, but not less than all, of the Equity
Interests then owned by such members of the CCC Control Group
(which must equal, in the aggregate, at least all of the Equity
Interests acquired by CCC on the date hereof) and at CCC’s
option up to the then-outstanding principal amount of, plus accrued
but unpaid interest on, the CCC Debt DPPO (any such amount owed
under the CCC Debt DPPO specified in the Put Notice will be
referred to herein as the “ Debt Interests ”),
to the Purchaser for a purchase price (the “ Put Price
”) equal to (1) the principal amount of, plus accrued
but unpaid interest on, the CCC Debt DPPO that VTR would be
required to pay if VTR were prepaying the Debt Interests on the
date of the Put Closing plus (2) the greater of
(a) US$140,000,000 (the “ Floor Price ”),
and (b) (i) if the Put Notice is received by the
Purchaser before VTR has completed a Qualified IPO and the Put
Closing occurs before the date VTR has completed a Qualified IPO,
an amount equal to the Appraised Put Value determined in accordance
with Section 3.2, or (ii) if VTR has completed a
Qualified IPO on or prior to the date the Purchaser receives the
Put Notice or if the Put Notice is received by the Purchaser before
VTR has completed a Qualified IPO but the Put Closing occurs on or
after the date VTR has completed a Qualified IPO, the Market Value
determined in accordance with Section 3.3; provided ,
however , that CCC may elect in the Put Notice to have the
Put Price determined solely by reference to the preceding clause
(a), in which case the calculations that would otherwise be
required under the
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preceding clause (b) will not be
required. If a Put Notice is received by the Purchaser and
unless CCC has elected in the Put Notice to have the Put Price
determined solely by reference to such clause (a), the Appraised
Put Value or the Market Value, as the case may be, must be
determined in accordance with Section 3.2 or Section 3.3,
respectively.
Section 3.2
Appraised Put Value
. When the Appraised Put Value
is to be determined pursuant to Section 3.1, it will be
determined (a) as agreed by CCC and the Purchaser or
(b) if CCC and the Purchaser fail to agree on the Appraised
Put Value and such failure to agree continues for 20 Business Days
after the Put Notice is received by the Purchaser, then as
determined pursuant to the Appraisal Procedure in
Section 3.11, for purposes of which (i) the “
Appraised Amount ” will be the Appraised Put Value,
(ii) the “ Appraisal Trigger Date ” will be
the end of such 20-Business-Day period after the Put Notice is
received by the Purchaser, and (iii) the “ Appraisal
Assumptions ” will be (A) no discount for the fact
that such Shares represent only a minority interest in the share
capital of VTR; (B) that all necessary consents, waivers, and
approvals required to effect such a sale, if any, could be
obtained; (C) none of the Licenses of VTR and its Subsidiaries
(then obtained) would be adversely affected by such a sale;
(D) that there is no public market for the Shares, unless one
actually exists; and (E) all Indebtedness owed by VTR or any
of its Subsidiaries to a Shareholder or any of its Affiliates is
treated as Indebtedness owed to a third party that is not a
Shareholder.
Section 3.3
Market Value
. When the Market Value is to
be determined pursuant to Section 3.1, the “ Market
Value ” will equal (a) if the Put Notice is received
by the Purchaser on or prior to the date that is 90 days after VTR
has completed the Qualified IPO, the product of (i) the price
to the public of one Share offered in the Qualified IPO and
(ii) the number of all of the Shares being sold, assigned, and
transferred at the Put Closing by one or more members of the CCC
Control Group in accordance with Section 3.5, or, (b) if
the Put Notice is received by the Purchaser on or after the date
that is 91 days after VTR has completed a Qualified IPO, the
product of (i) the Average Closing Price of one Share
determined as of the date immediately preceding the date on which
the Put Notice is received by the Purchaser and (ii) the
number of all of the Shares being sold, assigned, and transferred
at the Put Closing by one or more members of the CCC Control Group
in accordance with Section 3.5. If the price to the
public of one Share offered in a Qualified IPO or the Average
Closing Price of one Share, as the case may be, is denominated in a
currency other than Dollars, such price to the public or Average
Closing Price of one Share, as the case may be, will be translated
into Dollars on the basis of the Observado Exchange Rate published,
in the case of such price to the public, for the date the Qualified
IPO is completed, and, in the case of such Average Closing Price of
one Share, for the applicable Trading Days.
Section 3.4
Put Closing
. The closing (the “
Put Closing ”) of the purchase and sale of Equity
Interests and Debt Interests pursuant to this Agreement will occur
at such time and place agreed by CCC and the Purchaser or, if such
time and place have not otherwise been agreed by CCC and the
Purchaser, at the offices of Purchaser’s legal counsel in
Santiago, located at Miraflores 222, 24 th Floor,
Santiago, Chile or such other place in Chile as they may then be
located at 10 a.m., local time, on the later of (i) the
date that is 45 Business Days following the date the Put Price has
been determined pursuant to Section 3.1 (or if such date is
not a Business Day, then on the next succeeding Business Day), and
(ii) the date that is five Business Days after all Chilean
regulatory approvals for such transaction have been obtained and
any applicable
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waiting period pursuant to Chilean Law has
expired; provided , however , that if any Chilean
regulatory approval cannot be obtained due primarily to actions
taken by one or more members of the United Control Group, and the
inability to obtain such regulatory approval prevents the Put
Closing, then (1) the Purchaser (y) will take all
necessary or appropriate actions to provide CCC with the economic
benefits CCC would have received if such regulatory approval had
been obtained and the Put Closing had been completed, and
(z) upon the occurrence of the actions described in the
preceding clause (y), will deliver or cause to be delivered to CCC,
a customary waiver and release, duly executed by the Purchaser, and
(2) in connection therewith and against CCC’s receipt of
such economic benefits, CCC (y) will take all necessary or
appropriate actions to provide the Purchaser or its designee with
all of the voting and economic interests relating to the Equity
Interests and the Debt Interests that the Purchaser would have
received if such regulatory approval had been obtained and the Put
Closing had been completed, and (z) upon the occurrence of the
actions described in the preceding clause (y), will deliver or
cause to be delivered to VTR, letters of resignation, effective as
of the date the CCC Control Group ceases to control such voting and
economic interests, of the CCC Director and his or her alternate
director, if any, and to the Purchaser, a customary waiver and
release, duly executed by CCC and each member of the CCC Control
Group that is selling, assigning, or otherwise transferring such
voting and economic interests.
Section 3.5
Put Price Settlement
Methods .
(a)
At the Put
Closing (i) the Purchaser must pay to CCC the Put Price in one
of the following ways (each a “ Settlement Method
”) selected by the Purchaser in its sole discretion:
(A) entirely in Dollars (“ Cash Settlement
”), (B) to the extent permitted by applicable Law,
entirely in a number of equity securities (“ Issuer
Securities ”) of Liberty Global, LMC, LMI, UGC, or any of
their respective successors and assigns (such Entity, the Issuer
Securities of which are to be delivered hereunder, is referred to
as the “ Issuer ”) determined in accordance with
Section 3.5(c) (“ Share Settlement ”),
or (C) to the extent permitted by applicable Law, a portion in
Dollars in the amount specified in the Purchaser’s notice
given in accordance with Section 3.5(e) (the “
Partial Cash Amount ”) and a portion in a number of
Issuer Securities determined in accordance with
Section 3.5(d) (“ Combined Settlement
”), and will deliver or cause to be delivered to CCC a
customary waiver and release, duly executed by the Purchaser, and
(ii) CCC must, or must cause each member of the CCC Control
Group that owns any Equity Interest to, sell, assign, and transfer
to the Purchaser or one or more of its designees all right, title
and interest it owns in all, but not less than all, of the Equity
Interests owned by it (which must equal, in the aggregate, at least
all of the Equity Interests acquired by CCC on the date hereof) and
in the Debt Interests that one or more members of the CCC Control
Group have opted to sell, assign, and transfer to the Purchaser, in
each case free and clear of all Liens and Restrictions, except
(A) as may be or have been created by this Agreement or the
Shareholders Agreement, and (B) Restrictions imposed generally
by Law upon the share capital of Chilean sociedades
anónimas or the holders of such share capital. In
connection with the foregoing, CCC will deliver or cause to be
delivered:
(1)
to the Purchaser
or its designee, certificates and other documents and instruments
representing all of the Equity Interests then owned by one or
more
12
members of the
CCC Control Group and all of the Debt Interests that members of the
CCC Control Group have opted to sell, assign, and transfer to the
Purchaser;
(2)
to the Purchaser
or its designee, a transfer agreement by means of a public deed in
such form as the Purchaser requires, duly executed by each member
of the CCC Control Group that owns any Equity Interest or has opted
to sell, assign, and transfer Debt Interests to the Purchaser, and
evidencing, among other matters, the sale, assignment, and transfer
by each such member of the CCC Control Group, and the acquisition
by the Purchaser or one or more of its designees, of all the Equity
Interests owned by one or more members of the CCC Control Group and
all of the Debt Interests that members of the CCC Control Group
have opted to sell, assign, and transfer to the
Purchaser;
(3)
to VTR, letters
of resignation, effective as of the Put Closing, of the CCC
Director and his or her alternate director, if any;
(4)
to the Purchaser
and VTR, a customary waiver and release, duly executed by CCC and
each member of the CCC Control Group that owns Equity Interests or
is selling, assigning, and transferring Debt Interests
t
