EX-10.35.B 3 y69007a3exv10w35wb.txt AMENDMENT TO STIPULATION OF SETTLEMENT Exhibit 10.35(b) EXECUTION COPY UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION IN RE CHARTER COMMUNICATIONS, INC. MDL DOCKET NO. 1506 (CAS) SECURITIES LITIGATION ALL CASES __________________________________________________ STONERIDGE INVESTMENT PARTNERS Consolidated Case LLC, Individually and On Behalf of All Others No. 4:02-CV-1186 CAS Similarly Situated, Plaintiff, v. CHARTER COMMUNICATIONS, INC., PAUL ALLEN, JERALD L. KENT, CARL E. VOGEL, KENT KALKWARF, DAVID G. BARFORD, PAUL E. MARTIN, DAVID L. McCALL, BILL SHREFFLER, CHRIS FENGER, JAMES H. SMITH, III, SCIENTIFIC-ATLANTA, INC., MOTOROLA, INC. and ARTHUR ANDERSEN, LLP, Defendants. __________________________________________________ AMENDMENT TO STIPULATION OF SETTLEMENT AS BETWEEN DEFENDANT CHARTER COMMUNICATIONS, INC. AND PLAINTIFF STONERIDGE INVESTMENT PARTNERS LLC, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED WHEREAS, the parties in the above-referenced matter entered a Stipulation of Settlement (the "Stipulation"), dated as of January 24, 2005; WHEREAS, the Stipulation provides that in full and final settlement of all claims that have been or that could be asserted or referred to in the Class Action, and unless Charter exercises its right of termination as described below, Charter shall cause its insurers to pay $64 million in cash consideration and shall pay an additional $80 million in the form of the following securities (the "Settlement Securities") to be issued and transferred to the Escrow Account five (5) business days after the Final Valuation Date (as defined by (Paragraph) 1.12 of the Stipulation) for the benefit of the Class Members and their counsel: (a) Charter common stock having an aggregate value of $40 million to be determined pursuant to (Paragraph) 2.10 of the Stipulation, and (b) warrants to purchase Charter common stock having an aggregate value of $40 million to be determined pursuant to (Paragraph) 2.11 of the Stipulation; WHEREAS, the Stipulation provides that, in the event that the shares of Charter common stock as reflected in the Judgment Valuation Formula as set forth in the Stipulation is less than $2.25 per share, then Charter may in its sole discretion terminate the Settlement; WHEREAS, Charter and Plaintiff have discussed permitting Charter the option, at its sole discretion, to satisfy its payment obligation under the Stipulation with cash rather than issuing the Settlement Securities in amounts up to and including $80 million on a dollar-for-dollar basis; WHEREAS, in light of (a) the volatility of the price of Charter common stock, (b) the significant decline in the price of Charter common stock below $2.25 per share for several months, (c) the length of time required under the terms of the Stipulation before any Settlement Securities obtained for the benefit of the Class Members may be transferred to the Class Members, (d) the inability of the Settlement Securities to be sold or distributed on behalf of Class Members, until, at the earliest, the occurrence of the Effective Date, as defined in the Stipulation, (e) the certainty of obtaining the bargained-for value of the Settlement Securities in cash rather than in the form of common stock and/or warrants, (f) the additional expense to Charter of issuing the Settlement Securities and registration of the stock underlying the warrants to otherwise be issued, and (g) the right of Charter to terminate the Settlement in the event the Judgment Valuation Formula is less than $2.25 per share, Plaintiff believes -1- that the best interests of the Class Members are served by permitting Charter the option, at its sole discretion, to pay its obligation under the Stipulation with cash in lieu and instead of some or all of the Settlement Securities up to $80 million five (5) business days after the Final Valuation Date; WHEREAS, pursuant to (Paragraph) 11.8 of the Stipulation, Class Action Plaintiff's Counsel is expressly authorized to take all appropriate actions required to effectuate the terms of the Stipulation, and is "expressly authorized to enter into any modifications or amendments to the Stipulation on behalf of the Settlement Class which they deem appropriate"; WHEREAS, Plaintiff and the Company do not believe that this Amendment of the Stipulation is a material change, in light of the fact that the Class Members shall receive the full benefit and monetary value of the consideration set forth in the Stipulation and no less; IT IS HEREBY AGREED AS FOLLOWS: 1. The Company shall have the option, at its sole discretion, to elect to pay its obligation under the Stipulation with cash instead of issuing and transferring some or all of the Settlement Securities on a dollar for dollar basis on or before five (5) business days following the Final Valuation Date. 2. This Amendment is consistent with the authority granted Plaintiff's Class Action Counsel pursuant to (Paragraph) 11.8 of the Stipulation. 3. Nothing in this Amendment shall modify, waive, or diminish the Company's termination rights pursuant to (Paragraph) 2.10 of the Stipulation. 4. All other terms of the Stipulation shall remain in full force and effect. -2- 5. The Judgment to be entered approving the Settlement and dismissing the Actions shall refer to this Amendment. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to the Stipulation to be executed, by their duly authorized attorneys, effective as of May 23, 2005. DATED: May 19, 2005 POMERANTZ HAUDEK BLOCK GROSS AND GROSSMAN LLP By: /s/ Stanley M. Grossman ----------------------- Stanley M. Grossman, Esq. Marc I. Gross, Esq. 100 Park Avenue, 26th Floor New York, New York 10017 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 POMERANTZ HAUDEK BLOCK GROSS AND GROSSMAN LLP Patrick V. Dahlstrom, Esq. Leigh Handelman, Esq. One North LaSalle Street, Suite 2225 Chicago, Illinois 60602-3908 Telephone: (312) 377-1181 Facsimile: (312) 377-1184 Attorneys for Class Action Plaintiff StoneRidge Investment Partners LLC, Individually and On Behalf of All Others Similarly Situated LAW OFFICES OF WOLFF AND D'AGROSA Donald L. Wolff, Esq. Paul J. D' Agrosa, Esq. 8019 Forsyth Street Clayton, Missouri 63105 Telephone: (314) 725-8019 Facsimile: (314) 277-1184 Liaison Counsel for the Settlement Class -3- DATED: 5/20/05 IRELL & MANELLA LLP By: /s/ David A. Schwarz -------------------- David Siegel, Esq. David A. Schwarz, Esq. 1800 Avenue of the Stars, Suite 900 Los Angeles, California 90067-4276 Telephone: (310) 277-1010 Facsimile: (310) 203-7199 Attorneys for Defendants Charter Communications, Inc. DATED: 5/20/05 THOMPSON COBURN LLP By: /s/ Roman P. Wuller ------------------- Stephen B. Higgins, Esq. Roman P. Wuller, Esq. One US Bank Plaza St. Louis, Missouri 63101 Telephone: (314) 552-6000 Facsimile: (314) 552-7199 Attorneys for Defendants Charter Communications, Inc. DATED: 5/20/05 CHARTER COMMUNICATIONS, INC. By: /s/ Thomas Hearity ------------------ Thomas Hearity, Esq. Acting General Counsel Defendant Charter Communications, Inc. 12405 Powerscourt Drive St. Louis, Missouri 63131 Telephone: (314) 965-0555 Facsimile: (314) 965-8793 -4-