EXHIBIT 10.01
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is dated as of
July 12, 1999 among Adelphia Communications Corporation, a Delaware corporation
("Adelphia"), the Century Class B Holders (as defined below) and ▇▇. ▇▇▇▇▇▇ ▇▇▇
("▇▇. ▇▇▇").
RECITALS
A. Adelphia, its wholly-owned subsidiary Adelphia Acquisition
Subsidiary, Inc., a Delaware corporation ("Merger Sub"), and Century
Communications Corp., a New Jersey corporation ("Century"), are parties to an
Agreement and Plan of Merger, dated as of March 5, 1999 (the "Merger
Agreement"), pursuant to which Century will merge (the "Merger") into Merger Sub
on the terms and conditions provided therein.
B. Pursuant to the Merger Agreement, the Century Class B Holders
entered into a Voting Agreement, dated as of March 5, 1999 (the "Century Voting
Agreement"), obligating them, on the terms and conditions therein set forth, to
vote in favor of the Merger.
C. The Century Class B Holders required, as a condition to their
willingness to sign the Voting Agreement and to approve the Merger, that
Adelphia grant certain registration and related rights to the Century Holders,
all as provided herein.
In consideration of the recitals above and the agreements and covenants
contained in this Agreement, Adelphia and the Century Holders agree as follows:
1. Definitions. The following capitalized terms have the
following meanings:
"Adelphia" has the meaning set forth in the Parties paragraph.
"Adelphia Common Stock" means the Class A Adelphia Stock and
the Class B Adelphia Stock.
"Adelphia Indemnified Parties" has the meaning set forth in
Section 8(b).
"Agreement" has the meaning set forth in the Parties
paragraph.
"Century" has the meaning set forth in the Recitals.
"Century Class B Holders" means the holders of the Class B
Century Shares listed on Schedule A.
"Century Holders" means the Century Class B Holders, Ms. Tow
and any other person holding Registrable Shares to whom the
Registration Rights have been transferred in accordance with Section
11.
"Century Holder Indemnified Parties" has the meaning set forth
in Section 8(a).
"Century Voting Agreement" has the meaning set forth in the
Recitals.
"Class A Adelphia Stock" means the Class A Common Stock, par
value $0.01 per share of Adelphia.
"Class B Adelphia Stock" means the Class B Common Stock, par
value $0.01 per share of Adelphia.
"Class B Century Shares" means the outstanding shares of Class
B Common Stock, par value $0.01 per share of Century.
"Commission" means the Securities and Exchange Commission.
"Demand Request" has the meaning set forth in Section 2(a).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Indemnified Parties" has the meaning set forth in
Section 8(b).
"Merger" has the meaning set forth in the Parties paragraph.
"Merger Agreement" has the meaning set forth in the Parties
paragraph.
"Merger Sub" has the meaning set forth in the Parties
paragraph.
"Misstatement" means an untrue statement of a material fact or
an omission to state a material fact required to be stated in a
registration statement or prospectus or necessary to make the
statements in a registration statement, prospectus or preliminary
prospectus not misleading.
"Register", "registered" and "registration" refer to a
registration effected by preparing and filing with the Commission a
registration statement in compliance with the Securities Act and the
declaration or ordering by the Commission of effectiveness of such
registration statement.
"Registrable Shares" includes (i) all shares of Class A
Adelphia Stock issued to the Century Holders pursuant to the Merger
Agreement and (ii) all securities of Adelphia or any other entity
issued as a dividend or other distribution with respect to, or in
exchange or replacement of any such shares. Any Registrable Shares will
cease to be Registrable Shares to the extent (x) a registration
statement with respect to the sale of such Registrable Shares has
become effective under the Securities Act and such Registrable Shares
have been disposed of in accordance with such registration statement;
(y) such Registrable Shares have been sold to the public pursuant to
Rule 144 or any successor provision under the Securities Act; or (iii)
such Registrable Shares shall have ceased to be outstanding.
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"Registration Rights" means the rights to registration of
securities provided in Section 2 and Section 3.
"Rigas Shareholders" means Dorellenic, Ionian Communications,
L.P., Syracuse Hilton Head Holdings, L.P., Highland Holdings, ▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇ (▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇), any of their respective
spouses, estates or lineal descendants, any trust created by or for
the benefit of any such persons or, while and to the extent they are
serving in such capacity, the executors, administrators or personal
representatives of such persons, and any corporation, partnership or
other entity owned or controlled by one or more of the Rigas
Shareholders.
"Securities Act" means the Securities Act of 1933, as amended.
2. Demand Registration.
(a) Upon receipt of a written request (a "Demand Request") (specifying
that it is being made pursuant to this Section 2) from any Century Holder that
Adelphia file a registration statement under the Securities Act, or a similar
document pursuant to any other statute then in effect corresponding to the
Securities Act, covering the Registrable Shares that are the subject of such
request, Adelphia will file a registration statement under the Securities Act
covering such Registrable Shares. Adelphia will register all Registrable Shares
that the Century Holders have requested be registered on a form that is
appropriate for the sale of the Registrable Shares in accordance with the method
or methods of distribution specified by the Century Holders. Adelphia will not
be obligated to file a registration statement pursuant to this Section 2(a)
unless the proposed aggregate public offering price of the securities to be
included in such registration statement is at least $10,000,000.
(b) Notwithstanding the provisions of Section 2(a), Adelphia's
obligation to file such a registration statement shall be deferred for up to two
(2) periods not to exceed forty-five (45) days each from the time periods set
forth in Section (4b) if Adelphia furnishes to such Century Holder(s) within 10
days after Adelphia receives a Demand Request pursuant to Section 2(a) a
certificate signed by the President or Chief Executive Officer of Adelphia
stating that, in the reasonable determination of the Board of Directors of
Adelphia, there exist circumstances not yet disclosed to the public that would
be required to be disclosed in a registration statement filed pursuant to
Section 2(a) and the disclosure of which would be materially harmful to Adelphia
or its stockholders. Adelphia's right to defer filing of a registration
statement pursuant to this Section 2(b) may be exercised only twice as provided
above with respect to any demand for registration under this Section 2.
(c) Adelphia will be obligated pursuant to Section 2(a) to effect only
two registrations for each registered Century Holder of Registrable Shares on
the date hereof and each of their respective transferees. Any request for
registration under Section 2(a), at the discretion of the Century Holder(s)
making such request, may be for a firmly underwritten public offering to be
managed by an underwriter or underwriters of recognized national standing
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selected by such Century Holders, subject to the approval of the Board of
Directors of Adelphia, which approval will not be unreasonably withheld.
3. Piggy-back Registration.
(a) If at any time Adelphia determines to register any shares of its
capital stock under the Securities Act on a form that also would permit the
registration of the Registrable Shares (other than a registration statement on
Form S-4 or Form S-8), Adelphia promptly will, each such time, give the Century
Holders written notice of such determination at least 30 days before the
anticipated filing date of such registration statement. Upon the written request
of any Century Holder given within 20 calendar days after the delivery of any
such notice by Adelphia, Adelphia will include in such registration statement
all of the Registrable Shares that such Century Holder has requested to be
registered.
(b) Adelphia may decline to file a registration statement after giving
notice to the Century Holders pursuant to Section 3(a), or withdraw a
registration statement after filing and after such notice but prior to the
effectiveness thereof. In any such event; Adelphia promptly will notify the
Century Holders of any such action and will bear all expenses incurred by any
Century Holder in connection with such withdrawn registration statement.
(c) In connection with any registration of securities by Adelphia
subject to this Section 3 in connection with a firm commitment underwriting,
Adelphia will not be required to include any Registrable Shares of any Century
Holder in such underwriting unless such Century Holder accepts the terms of the
underwriting as agreed upon between Adelphia and the underwriters selected by
it, so long as the underwriting agreement is in customary form. If, in the
reasonable judgment of the managing underwriter of such firm commitment
underwriting expressed in a written opinion to the Century Holders, the
inclusion of all of the Registrable Shares requested to be registered would
interfere with the successful marketing of shares in such underwriting, the
number of Registrable Shares to be included in the firm commitment underwriting
will be reduced to such smaller number (but in no event less than 20% of the
securities in such underwriting, except to the extent provided in clause (ii) of
the next sentence) as, in the reasonable judgment of the underwriters, will not
interfere with the successful marketing of shares in such underwriting. In such
event, shares will be selected for participation in such offering in the
following priority (giving effect to the immediately preceding parenthetical):
(i) first, the shares of capital stock that Adelphia proposes to sell for its
own account; and (ii) second, the Registrable Shares requested to be included
(to be allocated pro rata among such Century Holders requesting such
registration based upon the number of Registrable Shares owned by such Century
Holders, pro rata among Century Holders and any third party on the basis of the
number of shares requested to be included in such registration by each such
Century Holder(s) or other party).
4. Obligations of Adelphia.
(a) Whenever Adelphia is required to register Registrable Shares under
Section 2 or Section 3, Adelphia will use its best efforts to effect such
registration to permit the sale of such Registrable Shares in accordance with
the intended plan of distribution thereof.
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(b) As soon as practicable (and in no event later than 60 days from the
date of receipt of a Demand Request), Adelphia will prepare and file with the
Commission a registration statement with respect to such Registrable Shares.
Adelphia will use its best efforts to cause such registration statement to
become effective at the earliest possible time (and in no event later than 120
days from the date of receipt of a Demand Request) and remain continuously
effective until the earlier to occur of (i) the date that is nine months from
the date such registration statement was declared effective or (ii) the date the
last of the Registrable Shares covered by such registration statement have been
sold. Adelphia will furnish to the Century Holders of the Registrable Shares
covered by such registration statement and any underwriter draft copies of the
registration statement and prospectus and any amendment or supplement thereto at
least 48 hours prior to filing. Adelphia will not file any such registration
statement, prospectus, amendment or supplement to which such Century Holders or
the underwriters reasonably object.
(c) As expeditiously as possible, Adelphia will prepare and file with
the Commission such pre-effective and post-effective amendments to the
registration statement, and such supplements to the prospectus, as may be
requested by any Century Holder of Registrable Shares covered by such
registration statement or any underwriter of Registrable Shares or as may be
required by the Securities Act, the Exchange Act or the rules and regulations
thereunder to keep the registration statement effective until all Registrable
Shares covered by such registration statement are sold in accordance with the
intended plan of distribution.
(d) As expeditiously as possible, Adelphia will notify the Century
Holders of Registrable Shares included in any offering subject to this Section
4:
(1) when the registration statement and any amendment thereto
has been filed, when the prospectus or any supplement thereto has been
filed and when the registration statement or any post-effective
amendment thereto has become effective,
(2) of any request by the Commission for amendments or
supplements to the registration statement or the prospectus or for
additional information,
(3) of the issuance by the Commission of any stop order
suspending the effectiveness of the registration statement or the
initiation of any proceeding for that purpose,
(4) if at any time the representations and warranties of
Adelphia contemplated by Section 4(m)(1) cease to be accurate in all
material respects,
(5) of the receipt by Adelphia of any notification with
respect to the suspension of the qualification of the Registrable
Shares for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose, and
(6) of the existence of any fact that causes the registration
statement, the prospectus or any document incorporated therein by
reference to contain a Misstatement.
(e) Adelphia will make every reasonable effort to obtain the withdrawal
at the earliest possible time of any order suspending the effectiveness of the
registration statement.
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(f) Adelphia will furnish to each selling Century Holder of Registrable
Shares and the managing underwriter, without charge, at least one conformed copy
of the registration statement and any post-effective amendment thereto,
including financial statements and schedules, all documents incorporated therein
by reference and all exhibits (including those incorporated by reference), and
as many copies of each preliminary prospectus and prospectus as such persons
reasonably may request.
(g) Prior to any public offering of Registrable Shares, Adelphia will
register or qualify, or cooperate with the selling Century Holders of
Registrable Shares, any underwriters and their respective counsel in connection
with the registration or qualification of, such Registrable Shares for offer and
sale under the securities or blue sky laws of such jurisdictions as such selling
Century Holder of Registrable Shares or underwriters may designate.
(h) Adelphia will cooperate with the selling Century Holders and any
underwriter to facilitate the timely preparation and delivery of certificates
representing the Registrable Shares, without restrictive legends in the case of
Registrable Shares actually being sold under a registration statement or
pursuant to Rule 144(k) promulgated under the Securities Act, and will cause
such Registrable Shares to be in such denominations and registered in such names
as any underwriter may request at least two business days prior to any sale of
Registrable Shares.
(i) Adelphia will use its best efforts to cause the Registrable Shares
covered by the registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof or the underwriters, if any, to consummate the
disposition of such Registrable Shares.
(j) If the registration statement or the prospectus contains a
Misstatement, Adelphia promptly will prepare a supplement or post-effective
amendment to the registration statement or the related prospectus or any
document incorporated therein by reference so that, as thereafter delivered to
the purchasers of the Registrable Shares, the prospectus will not contain a
Misstatement; provided, that Adelphia shall not be required to update, pursuant
to this Section 4(j), any such document during a period where Adelphia shall, in
good faith and using reasonable business judgment and based upon the advice of
outside counsel, believe that the premature disclosure of any event or
information would have a material effect on Adelphia, provided further that
Adelphia shall comply in all respects with the Securities Act and the Exchange
Act, together with all applicable rules and regulations of the Commission
promulgated thereunder and all applicable state securities laws and regulations.
Each Century Holder agrees that, upon receipt of any such notice from Adelphia
of the happening of any event during the period in which a registration
statement or the related prospectus contains a Misstatement (which advice shall
be accompanied by a written instruction to suspend the use of the prospectus
until the requisite changes have been made), such Century Holder will forthwith
discontinue disposition of Registrable Shares pursuant to such registration
statement until such Century Holder's receipt of the copies of the supplemented
or amended prospectus, and, if so directed by Adelphia, such Century Holder will
deliver to Adelphia all copies in its possession, other than permanent file
copies then in such Century Holder's possession, of the prospectus covering such
Registrable Shares current at the time of receipt of such notice, provided that
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the time period set forth in Section 4(b)(i) shall be extended for any period in
which the Century Holder is prevented from disposing of his or her Registrable
Shares pursuant to this Section 4(j).
(k) Adelphia will cause all Registrable Shares covered by the
registration statement to be listed on any national securities exchange or
authorized for quotation on the Nasdaq National Market prior to the time of
first sale of such Registrable Shares if requested by the Century Holders of a
majority of such Registrable Shares or any underwriter.
(l) Adelphia will provide a CUSIP number for all Registrable Shares not
later than the effective date of the Registration Statement.
(m) Adelphia will enter into such agreements, including an underwriting
agreement in customary form, and will take such action as may be necessary or
advisable in order to facilitate the disposition of such Registrable Shares,
including:
(1) making representations and warranties to the selling
Century Holders and any underwriters in substance and scope customarily
made by issuers to underwriters in primary underwritten offerings;
(2) obtaining opinions of counsel to Adelphia, reasonably
satisfactory to any underwriter and the selling Century Holders,
addressed to each selling Century Holder and any underwriter, and
covering the matters customarily covered in opinions delivered to
underwriters in primary underwritten offerings and such other matters
as reasonably may be requested by such Century Holders or underwriters;
(3) obtaining "cold comfort" letters and updates thereof from
Adelphia's independent certified accountants addressed to the selling
Century Holders and any underwriters, in customary form and covering
matters of the type customarily covered in "cold comfort" letters to
underwriters in connection with the primary underwritten offerings;
(4) causing any underwriting agreement to include the
indemnification and contribution provisions and procedures of Section 8
with respect to all parties to be indemnified pursuant to Section 8 or,
with respect to the indemnification of any underwriters, such similar
indemnification and contribution provisions as such underwriters
customarily require; and
(5) delivering such documents and certificates as reasonably
may be requested by the Century Holders of a majority of Registrable
Shares being sold and any managing underwriter to evidence compliance
with Section 4(m)(1) and with any customary conditions contained in the
underwriting agreement or other agreement entered into by Adelphia.
Each of the actions to be taken under this Section 4(m) will be taken at each
closing under such underwriting or similar agreement or as and to the extent
otherwise reasonably requested by the Century Holders of a majority of
Registrable Shares being sold.
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(n) Adelphia will make available for inspection by representatives of
the selling Century Holders, any underwriter participating in any disposition
pursuant to such registration statement and any attorney or accountant retained
by the selling Century Holders or any such underwriter, all financial and other
records and pertinent corporate documents and properties of Adelphia, and will
cause its officers, directors and employees to supply all information reasonably
requested by any such representative, underwriter, attorney or accountant.
(o) Adelphia otherwise will use its best efforts to comply with all
applicable rules and regulations of the Commission.
5. Obligations of Century Holders. The Century Holders will furnish to
Adelphia such information regarding them, the Registrable Shares held by them
and the intended method of disposition of such Registrable Shares as Adelphia
reasonably may request and as shall be required in connection with the action to
be taken by Adelphia.
6. Expenses of Registration. All expenses incurred in connection with
any registration pursuant to Section 2 or Section 3, including all registration
and qualification fees, printers' and accounting fees and reasonable fees and
disbursements of counsel for Adelphia, but not including fees and disbursements
of counsel for the selling Century Holders, will be paid by Adelphia.
The selling Century Holders will pay the fees and disbursements of their
counsel.
7. Lockup. (a) In consideration for Adelphia agreeing to its
obligations under this Agreement, each Century Holder agrees in connection with
any registration of Adelphia's securities, upon the request of Adelphia or the
underwriters managing any underwritten offering of Adelphia's securities, not to
sell, make any short sale of, loan, grant any option for the purchase of, or
otherwise dispose of any Registrable Shares (other than (i) those included in
the registration in question and (ii) sale transactions not involving a public
offering, provided that the transferee of such Century Holder as a condition
thereto and in connection therewith, agrees to be bound by and joins in this
Section 7), without the prior written consent of Adelphia or such underwriters,
as the case may be, for such period of time not to exceed 90 days from the
effective date of such registration as Adelphia or the underwriters may specify.
The restrictions under this Section 7 shall be conditioned upon an understanding
that the Rigas Shareholders will be similarly restricted during any such period.
During any period that sales of Registrable Shares by the Century Holder are
restricted under this Section 7, Adelphia will give written notice to the
Century Holder as soon as the restrictions on sale terminate. Adelphia hereby
agrees to give Century Holders among other things written notice of the filing
of a registration statement for a proposed underwritten offering to which the
restrictions in this Section 7 could apply if so requested.
(b) Notwithstanding Section 7(a) of this Agreement or comparable
provisions of any other agreement, whether now existing or hereafter entered
into, to which Adelphia, the Century Holders or any of the Rigas Shareholders
(or any of their respective affiliates) may be a party (i) Adelphia agrees that
it will not request, and will not permit the underwriters managing any
underwritten offering of Adelphia's securities to request, and (ii) each of the
Century Holders agrees that it will not agree to, and will not permit the Rigas
Shareholders to agree to, any restriction of the type described in Section 7(a)
which could, under any circumstances restrict the ability of any of the Century
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Holders to sell any Registrable Shares. If, despite the foregoing sentence, any
person shall assert that any Century Holder is or may be restricted in its
ability to sell any of the Registrable Shares as a result of restrictions of the
type described in Section 7(a) (or comparable provisions of other agreements as
described in the foregoing sentence), Adelphia hereby irrevocably consents, and
agrees to cause any underwriter managing any underwritten offering of Adelphia's
securities to irrevocably consent in writing, to such sale or sales.
(c) Nothing in this Section 7 shall be deemed to imply or constitute an
admission that sales of Registrable Shares by any Century Holder are intended to
be or would be subject to the restrictions set forth in Section 7(a) of this
Agreement or comparable provisions of any other agreement, whether now existing
or hereafter entered into, to which Adelphia, the Century Holders or any of the
Rigas Shareholders (or any of their respective affiliates) may be a party.
8. Indemnification.
(a) Adelphia will indemnify and hold harmless each Century Holder
requesting or joining in a registration, any underwriter (as defined in the
Securities Act) for the Century Holders and each person, if any, who controls
such Century Holder or underwriter within the meaning of the Securities Act (the
"Century Holder Indemnified Parties"), against any losses, claims, damages or
liabilities, joint or several, to which any Century Holder Indemnified Party may
become subject under the Securities Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages or liabilities or actions in respect thereof
arise out of or are based on (i) any Misstatement in a registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendment or supplement thereto, or arise out of any violation by Adelphia
of any rule or regulation promulgated under the Securities Act or Exchange Act
relating to action or inaction required of Adelphia in connection with any such
registration, or (ii) any claim that a sale of Registrable Shares by any Century
Holder is in violation of Section 7(a). Adelphia will reimburse each such
Century Holder Indemnified Party for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action. The indemnity agreement contained in this
Section 8(a) shall not apply: (i) to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of Adelphia (which consent will not be unreasonably withheld); or
(ii) to any such loss, claim, damage, liability or action incurred by any
Century Holder Indemnified Party to the extent that it (A) arises out of or is
based upon a Misstatement made in connection with such registration statement,
preliminary prospectus, final prospectus or amendment or supplement thereto in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by such Century Holder Indemnified
Party, or (B) arises out of any violation by such Century Holder Indemnified
Party of any rule or regulation promulgated under the Securities Act or the
Exchange Act relating to action or inaction required of such Century Holder
Indemnified Party in connection with any such registration. This indemnity will
be in addition to any liability that Adelphia otherwise may have.
(b) Each Century Holder requesting or joining in a registration will
indemnify and hold harmless Adelphia, each of its directors, each of its
officers who have signed the registration statement, each person, if any, who
controls Adelphia within the meaning of the Securities Act, and each agent and
any underwriter for Adelphia (within the meaning of the Securities Act) (the
"Adelphia Indemnified Parties" and, together with the Century Holder Indemnified
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Parties, the "Indemnified Parties") against any losses, claims, damages or
liabilities to which any Adelphia Indemnified Party may become subject, under
the Securities Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereto) (i) arise out of
or are based upon any Misstatement in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any amendment or
supplement thereto, in each case to the extent, but only to the extent, that
such Misstatement or alleged Misstatement was made in such registration
statement, preliminary or final prospectus or amendment or supplement in
reliance upon and in conformity with written information furnished by such
Century Holder expressly for use in connection with such registration, or (ii)
arise out of any violation by such Century Holder of any rule or regulation
promulgated under the Securities Act or the Exchange Act relating to action or
inaction required of such Century Holder in connection with any such
registration. Each such Century Holder will reimburse any legal or other
expenses reasonably incurred by such Adelphia Indemnified Party in connection
with investigating or defending any such loss, claim, damage, liability or
action. The indemnity agreement contained in this Section 8(b) shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability, or
action if such settlement is effected without the consent of such Century Holder
(which consent shall not be unreasonably withheld). This indemnity will be in
addition to any liability which each Century Holder otherwise may have.
(c) If the indemnification provided for in this Section 8 is
unavailable to an Indemnified Party under Section 8(a) or Section 8(b) in
respect of any losses, claims, damages or liabilities referred to therein, each
indemnifying party, in lieu of indemnifying such Indemnified Party, will
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and of the Indemnified Party on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The amount paid or payable
by a party as a result of the losses, claims, damages, or liabilities referred
to above shall be deemed to include, subject to the limitations set forth in
Section 8(d), any legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any action or claim. The
relative fault of the Indemnified Party on the one hand and of the indemnifying
party on the other will be determined by reference to, among other things,
whether the Misstatement or alleged Misstatement relates to information supplied
by the Indemnified Party or the indemnifying party and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such Misstatement or alleged Misstatement. Adelphia and the Century Holders
agree that it would not be just and equitable if contribution pursuant to this
Section 8(c) were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations referred
to above. No Century Holder Indemnified Party shall be required to contribute
any amount in excess of the amount by which (i) the total price at which the
securities that were sold by such Century Holder Indemnified Party exceeds (ii)
the amount of any damages which such Century Holder Indemnified Party otherwise
has been required to pay by reason of such Misstatement. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
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(d) Any person entitled to indemnification hereunder will: (i) give
prompt notice to the indemnifying party of any claim with respect to which it
seeks indemnification; and (ii) unless in such Indemnified Party's reasonable
judgment a conflict of interest between such Indemnified Party and the
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the Indemnified Party. An indemnifying party who is not entitled
or elects not to assume the defense of a claim will not be obligated to pay the
fees and expenses of more than one counsel for all Indemnified Parties with
respect to such claim, unless in the reasonable judgment of any Indemnified
Party a conflict of interest may exist between such Indemnified Party and any
other such Indemnified Parties with respect to such claim. The failure to notify
an indemnifying party promptly of the commencement of any such action, if
prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the Indemnified Party under this Section
8, but the omission so to notify the indemnifying party will not relieve the
indemnifying party of any liability that it may have to any Indemnified Party
otherwise than under this Section 8.
9. Termination of Adelphia's Obligations. Adelphia will have no
obligation pursuant to Section 2 or Section 3 with respect to any request or
requests made by a Century Holder more than five years after the Effective Time.
10. Reports Under the Exchange Act. With a view to making available to
the Century Holders the benefits of Rule 144 promulgated under the Securities
Act and any other rule or regulation of the Commission that may permit a Century
Holder to sell securities of Adelphia to the public without registration,
Adelphia will use its best efforts to:
(a) make and keep public information available, as those
terms are understood and defined in Rule 144, at all times;
(b) file with the Commission in a timely manner all reports
and other documents required of Adelphia under the Securities Act and
the Exchange Act; and
(c) furnish to any Century Holder forthwith upon request (i) a
written statement by Adelphia that it has complied with the reporting
requirements of Rule 144, and of the Securities Act and the Exchange
Act, (ii) a copy of the most recent annual or quarterly report of
Adelphia and (iii) such other reports and documents so filed by
Adelphia as reasonably may be requested in availing any Century Holder
of any rule or regulation of the Commission permitting the selling of
any such securities without registration.
11. Transfer of Rights. The registration rights of the Century Holders
under Section 2 and Section 3 may be transferred to any transferee or devolve
upon any person who is (i) a nominee or descendant of such Century Holder or a
trust (including any subtrusts thereof) of which such Century Holder is the
Trustor so long as the beneficial owner of the Registrable Shares being
transferred is the Trustor or any relative of the Trustor or any charitable
foundation or other eleemosynary institution or charitable remainder trusts,
(ii) the beneficial owner of any Century Holder which is a trust, (iii) an
entity controlled by such Century Holder, (iv) a shareholder or partner, as the
case may be, of any Century Holder, (v) a bona fide purchaser for value from
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such Century Holder of Adelphia Common Stock having a market value at the time
of sale of more than $10,000,000, (vi) charitable donees or family donees, (vii)
a beneficial owner of an existing trust and otherwise to third parties for
estate planning or similar purposes. Adelphia will be given written notice by
the Century Holder at the time of any transfer stating the name and address of
any transferee and identifying the securities with respect to which the rights
hereunder are being transferred.
12. No Inconsistent Agreements. Adelphia will not enter into any
agreement with respect to its securities that is inconsistent with the rights
granted to the Century Holders in this Agreement or otherwise conflicts with the
provisions hereof.
13. Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, without the prior written consent of
Adelphia and at least the Century Holders of a majority of the Registrable
Shares.
14. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telecopier or air courier guaranteeing overnight delivery:
(a) if to a Century Holder, at the most current address given
by such Century Holder to Adelphia in accordance with the provisions
hereof, which address at the date hereof is set forth on Schedule A;
and
(b) if to Adelphia, at:
Adelphia Communications Corporation
Attn: ▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇
Main at ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with copies to:
▇▇▇▇▇▇▇▇ Ingersoll Professional Corporation
20th Floor, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇.
All such notices and communications shall be deemed to have been dully
given at the time delivered by hand, if personally delivered; five business days
after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery. Adelphia will promptly
provide a list of the most current addresses of the Century Holders of
Registrable Shares given to it in accordance with the provisions hereof to any
such Century Holder for the purpose of enabling such Century Holder to
communicate with other Century Holders in connection with this Agreement.
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14. Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors (and any entity controlling such
successors) and assigns of each of the parties.
15. Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without giving effect to the
conflict of laws provisions thereof.
17. Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
18. Forms. All references in this Agreement to particular forms of
registration statements are intended to include all successor forms which are
intended to replace, or to apply to similar transactions as, the forms herein
referenced.
19. Entire Agreement. This Agreement is intended by the parties as the
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, as of the day and year first above written.
ADELPHIA COMMUNICATIONS CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:
CENTURY HOLDERS
THE ▇▇▇▇▇▇ ▇▇▇ TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇, Trustee
By: /s/ Clair Tow
▇▇▇▇▇▇ ▇▇▇, Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Trustee:
Title:
THE TRUST CREATED BY ▇▇▇▇▇▇ ▇▇▇ UNDER DATE OF DECEMBER 10, 1979
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Trustee
▇▇▇▇▇▇▇ ▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇
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SCHEDULE A
CENTURY CLASS B HOLDERS
▇▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Trust dated December 10, 1979 by ▇▇▇▇▇▇
▇▇▇ as Grantor
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
The ▇▇▇▇▇▇ ▇▇▇ Trust, created under date of
July 1973 by ▇▇▇▇▇▇▇ ▇▇▇ as Grantor
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
in each case with copies to:
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇ ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
15
