EXHIBIT 10.04
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is dated as of
January 14, 1999 (the "Closing Date") by and among ADELPHIA COMMUNICATIONS
CORPORATION, a Delaware corporation (together with its successors and assigns,
the "Company"), and hIGHLAND HOLDINGS II, a Pennsylvania general partnership
("Highland") and Xxxxx Holdings, L.P., a Delaware limited partnership (together
with Highland, the "Investors").
1. Background. The Company and Highland have entered into a stock
purchase agreement, dated as of January 11, 1999 (the "Direct Offering
Agreement"), pursuant to which the Company will issue 4,000,000 shares (the
"Direct Offering Shares") of its Class A common stock to Highland in an offering
exempt from the registration requirements of the Securities Act of 1993, as
amended. Concurrently with the issuance of the Direct Offering Shares, the
Investors and Xxxxxxx, Sachs & Co. (the "Lender") are entering into a margin
loan as of the Closing Date (the "Margin Loan"), the proceeds from which will be
used to fund portion of the purchase price of the Direct Offering Shares. As an
inducement to the Lender to enter into the Margin Loan and in satisfaction of a
condition to the obligations of the Lender thereunder, the Investors are (i)
pledging, in accordance with the terms of the Margin Loan, to the Lender, as
pledgee (in such capacity, the "Pledgee"), 6,200,000 shares in the aggregate
(including all of the Direct Offering Shares) (the "Pledged Securities") of the
Company's Class A common stock owned by the Investors and (ii) executing and
delivering this Agreement with the Company. Certain capitalized terms used in
this Agreement are defined in Section 3 hereof.
2. Registration under Securities Act of 1933.
2.1. Registration Statement and Prospectus.
(a) As soon as practicable after the date
hereof but in no event later than 45 days after the Closing Date (such 45th day
being the "Filing Deadline"), the Company shall file with the Commission, in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement, including a prospectus and, if applicable, a
prospectus supplement, relating to all Pledged Securities on Form S-3 under the
Act (the "Initial Registration Statement"), and shall use its best efforts to
cause the Registration Statement to become effective on or prior to 60 days
after the Filing Deadline (such 60th day, being the "Effectiveness Deadline").
During the period from the date the Initial Registration Statement becomes
effective to the date there ceases to be any outstanding obligations (including,
but not limited to, obligations to pay principal, interest or other amounts
payable) under the Margin Loan (the "Registration Period"), to the extent that
for any reason the form of the Initial Registration Statement becomes no longer
available, the Company shall use its best efforts to file and to cause to become
effective as promptly as practicable any necessary amendments to or any
successor form of registration statement relating to the Pledged Securities (the
"Successor Registration Statement" and, together with the Initial Registration
Statement, the "Registration Statement") as then shall be available under the
Act to permit sales of Pledged Securities by the Pledgee, the Investors and the
Underwriters, if any, of the type contemplated by this Agreement. The Company
agrees to include in the Registration Statement all information that the Pledgee
or the Underwriters, if any, shall reasonably request.
During the Registration Period, the Company
shall use its best efforts to keep the Registration Statement continuously
effective, supplemented and amended to the extent necessary to ensure that it is
available for public sales of the Pledged Securities by the Pledgee, the
Investors and the Underwriters, if any, and to ensure that it conforms with the
requirements of this Agreement, the Act and the policies, rules and regulations
of the Commission as announced from time to time.
(b) Registration of Other Securities. No
securities other than the Pledged Securities shall be included among the
securities covered by the Registration Statement unless the Pledgee shall have
consented in writing to the inclusion of such other securities.
(c) Expenses. The Company will pay all
Registration Expenses in connection with its obligations under this Agreement.
Each of the Pledgee, the Investors and the Underwriters, if any, shall pay all
of its respective Selling Expenses incurred in connection with the sale of such
Person's sale of its Pledged Securities.
(d) Selection of Underwriters. If, at the sole
option of the Pledgee, a proposed sale of not less than $15.0 million in then
aggregate market value of the Pledged Securities by or on behalf of the Pledgee
involves an underwritten offering, the underwriter managing such offering (the
"Managing Underwriter") and other underwriters, if any, (together with the
Managing Underwriter, the "Underwriters") shall be designated by the Pledgee;
provided that such Underwriters shall be reasonably satisfactory to the Company.
The Pledgee may act as an Underwriter, including the Managing Underwriter.
2.2. Registration Procedures. The Company shall:
(i) prepare and file with the Commission the
Initial Registration Statement no later than by the Filing Deadline,
(ii) use its best efforts to cause the Initial
Registration Statement to become effective no later than by the
Effectiveness Deadline;
(iii) if required by Section 2.1(a) hereof, use its
best efforts to prepare, file and have become effective promptly as
practicable all Successor Registration Statements;
(iv) during the Registration Period, use its best
efforts to keep the Registration Statement continuously effective,
supplemented and amended to the extent necessary to ensure that it is
available for public sales of the Pledged Securities and to ensure that
it conforms with the requirements of this Agreement, the Act and the
policies, rules and regulations of the Commission as announced from
time to time;
(v) furnish to each of the Pledgee and the
Underwriters, if any, such number of conformed copies of the
Registration Statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies of
the prospectus contained in the Registration Statement (including each
preliminary prospectus and any summary prospectus) and any other
prospectus filed under Rule 424 under the Act, in conformity with the
requirements of the Act, and such other documents, as the Pledgee or
the Underwriters, if any, may reasonably request;
(vi) use its best efforts to register or qualify all
Pledged Securities under such other securities or blue sky laws of such
jurisdictions as the Pledgee or the Underwriters, if any, shall
reasonably request, to keep such registration or qualification in
effect for the Registration Period, and take any other action that may
be reasonably necessary or advisable to enable the Pledgee and the
Underwriters, if any, to consummate the disposition in such
jurisdictions of the Pledged Securities, except that the Company shall
not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction wherein it would
not but for the requirements of this subdivision (vi) be obligated to
be so qualified or to consent to general service of process in any such
jurisdiction;
(vii) use its best efforts to cause all Pledged
Securities to be registered with or approved by such other governmental
agencies or authorities as may be necessary to enable the Pledgee and
the Underwriters, if any, to consummate the disposition of the Pledged
Securities;
(viii) make available at reasonable times for
inspection by the Pledgee and the Underwriters, if any, and any
attorney or accountant retained by the Pledgee or the Underwriters, if
any, all financial and other records, pertinent corporate documents of
the Company and cause the Company's officers, directors and employees
to supply all information reasonably requested by the Pledgee, the
Underwriters, if any, and any such attorney or accountant in connection
with "due diligence" investigations;
(ix) in connection with a sale of the Pledged
Securities by the Pledgee or the Underwriters, if any, furnish to the
Pledgee and the Underwriters, if any, a signed counterpart, addressed
to the Pledgee and the Underwriters, if any, of:
(A) an opinion of counsel for the Company,
dated the effective date of each Registration
Statement (and, if such registration includes an
underwritten public offering, dated the date of the
closing under the underwriting agreement) and
addressed to the Pledgee and the Underwriters, if
any, reasonably satisfactory in form and substance to
the Pledgee and the Underwriters, if any, and
(B) a "comfort" letter, dated the effective
date of each Registration Statement (and, if such
registration includes an underwritten public
offering, dated the date of the closing under the
underwriting agreement) addressed to the Pledgee and
the Underwriters, if any, signed by the independent
public accountants who have certified the Company's
financial statements included in such registration
statement,
covering substantially the same matters with respect to such
Registration Statement (and the prospectus included therein) and, in
the case of the accountants' letter, with respect to events subsequent
to the date of such financial statements, as are customarily covered in
opinions of issuer's counsel and in accountants' letters delivered to
the underwriters in underwritten public offerings of securities and, in
the case of the accountants' letter, such other financial matters, and,
in the case of the legal opinion, such other legal matters, as the
Pledgee or the Underwriters, if any, may reasonably request;
(x) notify the Pledgee and each of the Underwriters,
if any, at any time when a prospectus relating to the Pledged
Securities is required to be delivered under the Act, upon discovery
that, or upon the happening of any event as a result of which, the
prospectus included in the Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances
under which they were made, and at the request of the Pledgee or the
Underwriters, if any, promptly prepare and furnish to the Pledgee or
the Underwriters, if any, a reasonable number of copies of a supplement
to or an amendment of such prospectus (and to timely make any necessary
filings thereof with the Commission and to use its best efforts to
cause such supplement or amendment, if necessary, to be declared
effective under the Act) as may be necessary so that, as thereafter
delivered to the purchasers of any of the Pledged Securities, such
prospectus shall not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of
the circumstances under which they were made;
(xi) if not already so listed or qualified, to use
its reasonable best efforts to cause all Pledged Securities to be
listed on any securities exchange or qualified for inclusion in any
automated quotation system on which the Class A common stock is then
listed or included for quotation, as the case may be;
(xii) in connection with an underwritten offering
pursuant to Section 2.1(d) hereof, make appropriate officers of the
Company available to the Underwriters for meetings with prospective
purchasers of the Pledged Securities and prepare and present to
potential investors customary "road show" material in a manner the
Managing Underwriter shall reasonably request;
(xiii) in the event that any broker-dealer registered
under the Securities Exchange Act of 1934 shall be an "affiliate" (as
defined in Rule 2720(b)(1) of the National Association of Securities
Dealers ("NASD") rules (or any successor provision thereto)) of the
Company or has a "conflict of interest" (as defined in Rule 2720(b)(7)
of the NASD rules (or any successor provision thereto)) and such
broker-dealer shall underwrite, participate as a member of an
underwriting syndicate or selling group or assist in the distribution
of any Pledged Securities covered by the Registration Statement,
whether as a holder of such Pledged Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or
otherwise, assist such broker-dealer in complying with the requirements
of the NASD rules, including, without limitation, by (A) engaging a
"qualified independent underwriter" (as defined in Rule 2720(b)(15) of
the NASD rules (or any successor provision thereto)) to participate in
the preparation of the registration statement relating to such Pledged
Securities, to exercise usual standards of due diligence in respect
thereto and to recommend the public offering price of such Pledged
Securities, (B) indemnifying such qualified independent underwriter to
the extent of the indemnification of underwriters provided in Section
2.5 hereof, and (C) providing such information to such broker-dealer as
may be required in order for such broker-dealer to comply with the
requirements of the NASD rules;
(xiv) to make available to its security holders, as
soon as reasonably practicable, an earnings statement covering the
period of at least twelve months, but not more than eighteen months,
beginning with the first full calendar month after the "effective date"
(as defined in Rule 158(c) promulgated under the Act) of each
Registration Statement used to sell Pledged Securities which earnings
statement shall satisfy the provisions of Section 11(a) of, and Rule
158 promulgated under, the Act; and
(xv) enter into such agreements and take such other
actions as the Pledgee shall reasonably request in order to expedite or
facilitate the disposition of the Pledged Securities.
The Company may require the Pledgee or any of the Underwriters, if any,
to furnish the Company such information regarding such Person and the
distribution of the Pledged Securities by such Person as the Company may from
time to time reasonably request in writing if such information is required by
the Act to be included in the Registration Statement.
Each of the Pledgee and the Underwriters, if any, agrees by acquisition
of the Pledged Securities that upon receipt of any notice from the Company of
the happening of any event of the kind described in the subdivision (x) of this
Section 2.2, such Person will forthwith discontinue such Person's disposition of
the Pledged Securities pursuant to the Registration Statement until such
Person's receipt of the copies of the supplemented or amended prospectus
contemplated by subdivision (x) of this Section 2.2 and, if so directed by the
Company, will deliver to the Company (at the Company's expense) all copies,
other than permanent file copies, then in such Person's possession of the
prospectus relating to the Pledged Securities current at the time of receipt of
such notice.
2.3. Underwritten Offerings. If requested by the Underwriters
for any underwritten offering pursuant to Section 2.1(d), the Company shall
enter into an underwriting agreement with such Underwriters for such offering,
such agreement to be satisfactory in substance and form to each of the Pledgee
and the Underwriters and to contain such representations and warranties by the
Company and such other terms as are generally prevailing in agreements of this
type, including, without limitation, indemnities to the effect and to the extent
provided in Section 2.5 of this Agreement or in such other form as is customary
for the Managing Underwriter for such offering. The Pledgee, regardless of
whether the Pledgee is an Underwriter, may at its option be a party to such
underwriting agreement and may, at its option, require that any or all of the
representations and warranties by, and the other agreements (including those
pertaining to the indemnification of the Underwriters) on the part of, the
Company to and for the benefit of such Underwriters shall also be made to and
for the benefit of the Pledgee and that any or all of the conditions precedent
to the obligations of such Underwriters under such underwriting agreement be
conditions precedent to the obligations of such Pledgee.
2.4. Additional Rights of Holders. If the Registration
Statement prepared under this Agreement refers to the Pledgee by name or
otherwise as the holder of any securities of the Company, then such party shall
have the right to require (x) the insertion therein of language, in form and
substance satisfactory to the Pledgee, to the effect that the holding by the
Pledgee of such securities does not necessarily make the Pledgee a "controlling
person" of the Company within the meaning of the Act and is not to be construed
as a recommendation by the Pledgee of the investment quality of the Company's
securities covered thereby and that such holding does not imply that the Pledgee
will assist in meeting any future financial requirements of the Company, or (y)
in the event that such reference to the Pledgee by name or otherwise is not
required by the Act, the deletion of the reference to the Pledgee.
2.5. Indemnification.
(a) The Company will indemnify and hold harmless
the Pledgee and each of the Investors against any losses, claims, damages or
liabilities, joint or several, to which the Pledgee or any of the Investors may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the prospectus contained therein, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each of the Pledgee and the Investors for any legal or other
expenses reasonably incurred by such Person in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the Pledgee or
the Investors to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in the Registration Statement or the
prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by the Pledgee (in
the case of the Pledgee) or by the Investors (in the case of the Investors)
expressly for use therein.
(b) Each of the Pledgee and the Investors
will, severally but not jointly, indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in the Registration Statement or the prospectus or
any such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Pledgee or Investors expressly for
use therein; and will, severally but not jointly, reimburse the Company for any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission so
to notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under such subsection. In
case any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of any indemnified
party.
(d) If the indemnification provided for in
this Section 2.5 is unavailable to or insufficient to hold harmless an
indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then the indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and the
Investors on the other from the initial offering of the Pledged Securities to
the Investors. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party failed
to give the notice required under subsection (c) above, then the indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company on the one hand and the Pledgee
and/or the Investors on the other, as the case may be, in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Pledgee and/or the Investors on the other, as the case may be,
shall be deemed to be in the same proportion as the total net proceeds from the
initial offering of such Pledged Securities to the Investors (before deducting
expenses) received by the Company bear to the total discounts allowed to the
Investors. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the Pledgee and/or the Investors, as
the case may be, on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company, the Investors and the Pledgee agree that it would not be
just and equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), the Pledgee and/or the Investors, as the case
may be, shall not be required to contribute any amount in excess of the amount
by which the total price at which the Pledged Securities sold by it to the
public pursuant to the Registration Statement exceeds the amount of any damages
which the Pledgee has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
(e) The obligations of the Company under this Section
2.5 shall be in addition to any liability which the Company may otherwise have
and shall extend, upon the same terms and conditions, to each Person, if any,
who controls the Pledgee or the Investors within the meaning of the Act; and the
obligations of the Pledgee or the Investors under this Section 2.5 shall be in
addition to any liability which the Pledgee or the Investors may otherwise have
and shall extend, upon the same terms and conditions, to each officer and
director of the Company and to each Person, if any, who controls the Company
within the meaning of the Act.
2.6. Adjustments Affecting Pledged Securities. Notwithstanding
any other provision of this Agreement, the Investors' and the Pledgee's rights
with respect to Pledged Securities and their benefits under this Agreement, and
the Company's obligations, including obligations to effect registration of
Pledged Securities under the Act, shall include the original Pledged Securities
and all other securities of the Company (or any other issuer) delivered in
exchange for or in respect of the Pledged Securities, whether by way of a
dividend or other distribution or in connection with a subdivision or
combination of shares, recapitalization, merger, consolidation, exchange offer,
reorganization or other transaction.
2.7. Lockup Agreement. (a) In consideration for the Company
agreeing to its obligations under this Agreement, each of the Investors agrees
in connection with any registration of the Company's securities, upon the
request of the Company or the underwriters managing any underwritten offering of
the Company's securities, not to sell, make any short sale of, loan, grant any
option for the purchase of, or otherwise dispose of any Pledged Securities
(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 Investor as a condition thereto and in connection therewith, agrees to be
bound by and joins into this Section 2.7), without the prior written consent of
the Company 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 the
Company or the underwriters may specify. The restrictions under this Section 2.7
shall be conditioned upon an understanding that the Rigas Shareholders (as
defined in Section 2.7(d) below) will be similarly restricted during any period.
During any period that sales of Pledged Securities by an Investor are restricted
under this Section 2.7, at the Investor's request, the Company will give written
notice to the Investor as soon as the restrictions on sale terminate. The
Company hereby agrees to give the Investors among other things written notice of
the filing of a registration statement for a proposed underwritten offering to
which the restrictions in this Section 2.7 could apply if so requested.
(b) Notwithstanding Section 2.7(a) of this
Agreement or comparable provisions of any other agreement, whether now existing
or hereafter entered into, to which the Company, the Investors or any of the
Rigas Shareholders (or any of their respective affiliates) may be a party (i)
the Company agrees that it will not request, and will not permit the
underwriters managing any underwritten offering of the Company's securities to
request, and (ii) each of the Investors 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 2.7(a) which could, under any circumstances, restrict the
ability of the Pledgee to sell, for its own account or the account of the
Investors, any Pledged Securities. If, despite the foregoing sentence, any
person shall assert that the Pledgee is or may be restricted in its ability to
sell, for its own account or for the account of the Investors, Pledged
Securities as a result of restrictions of the type described in Section 2.7(a)
(or comparable provisions of other agreements as described in the foregoing
sentence), the Company hereby irrevocably consents, and agrees to cause any
underwriter managing any underwritten offering of the Company's securities to
irrevocably consent in writing, to such sale or sales.
(c) Nothing in this Section 2.7 shall be
deemed to imply or constitute an admission that sales of Pledged Securities by
the Pledgee are intended to be or would be subject to the restrictions set forth
in Section 2.7(a) of this Agreement or comparable provisions of any other
agreement, whether now existing or hereafter entered into, to which the Company,
the Investors or any of the Rigas Shareholders (or any of their respective
affiliates) may be a party.
(d) The term "Rigas Shareholders" means Dorellenic,
Ionian Communications, L.P., Syracuse Hilton Head Holdings, L.P., Highland
Holdings, Xxxx X. Xxxxx, Xxxxx X. Xxxxx, Xxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxx,
Xxxxx X. Xxxxx, Xxxxx X. Xxxxx, any of their respective spouses, estates or
lineal descendants, any trust created 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.
3. Definitions. As used herein, unless the context otherwise requires,
the following terms have the following respective meanings:
Commission: The Securities and Exchange Commission or any
other federal agency at the time administering the Act.
Person: A corporation, an association, a partnership,
a business, an individual, a governmental or political
subdivision thereof or a governmental agency.
Registration Expenses: All expenses incident to the Company's
performance of or compliance with this Agreement, including,
without limitation, all registration, filing and NASD fees
(including fees, if any, of any "qualified independent
underwriter"), all fees and expenses of complying with
securities or blue sky laws, all word processing, duplicating
and printing expenses, messenger and delivery expenses, the
fees and disbursements of counsel for the Company and of its
independent public accountants, including the expenses of any
special audits or "cold comfort" letters required by or
incident to such performance and compliance, premiums and
other costs of policies of insurance against liabilities
arising out of the public offering of the Pledged Securities
being registered and any fees and disbursements of
underwriters customarily paid by issuers or sellers of
securities, but excluding Selling Expenses, if any.
Selling Expenses: Underwriting discounts and commissions and
stock transfer taxes relating to Pledged Securities registered
by the Company and the fees and disbursements incurred by each
of the Pledgee, the Investors or the Underwriters, if any, in
connection with the sale of its Pledged Securities by such
Person (including, without limitation, the fees and
disbursements of legal counsel to the Pledgee, the Investors
and/or the Underwriters, if any).
4. Amendments and Waivers. This Agreement may be amended and the
Company may take any action herein prohibited or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent of the Pledgee to such amendment, action or omission to act .
5. Notices. All communications provided for hereunder shall be sent by
first-class mail (registered or certified, return receipt requested), telex,
telecopier or overnight air courier guaranteeing next day delivery (i) if to the
Company, to the office of the Company at Adelphia Communications Corporation,
Main at Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Chief
Financial Officer, with a copy to Xxxxxxxx Xxxxxxxxx Professional Corporation,
One Oxford Centre, 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention:
Xxxx Xxxxxxxxxxxx, (ii) if to the Investors, c/o Adelphia Communications
Corporation, Main at Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention:
Chief Financial Officer and Xxxxx Xxxxxx, with a copy to Xxxxxxxx Xxxxxxxxx
Professional Corporation, One Oxford Centre, 000 Xxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx 00000, Attention: Xxxx Xxxxxxxxxxxx, and (iii) if to the Pledgee,
to Xxxxxxx, Sachs & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Registration Department.
6. Third Party Beneficiary. The Pledgee shall be a third party
beneficiary to the agreements made hereunder between the Company, on the one
hand, and the Investors, on the other hand, and shall have the right to enforce
such agreements directly to the extent the Pledgee may deem such enforcement
necessary or advisable to protect its rights hereunder.
7. Assignment. This Agreement shall (i) be binding upon by the parties
hereto and their respective successors and assigns and (ii) inure to the benefit
of and be enforceable by the parties hereto and the Pledgee, as a third party
beneficiary of this Agreement, and their respective successors and assigns.
8. Termination. This Agreement shall terminate at the end of the
Registration Period; provided, however, that the agreements, representations,
warranties and other statements of the Company, the Investors and the Pledgee
set forth in or made pursuant Sections 2.1(c) and 2.5 hereof shall remain
operative and in full force and effect, and will survive the end of the
Registration Period.
9. Descriptive Headings. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only and
shall not limit or otherwise affect the meaning hereof.
10. Specific Performance. The parties hereto recognize and agree that
money damages may be insufficient to compensate the Investors or the Pledgee for
breaches by the Company of the terms hereof and, consequently, that the
equitable remedy of specific performance of the terms hereof will be available
in the event of any such breach.
11. Choice of Law; Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICT OF LAWS. THE PARTIES HERETO WAIVE ANY TRIAL BY
JURY WITH RESPECT TO ANY ACTION OR PROCEEDING ARISING IN CONNECTION WITH OR AS A
RESULT OF THIS AGREEMENT. THE COMPANY AGREES THAT ANY SUIT OR PROCEEDING ARISING
IN RESPECT TO THIS AGREEMENT WILL BE TRIED EXCLUSIVELY IN THE U.S. DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR, IF THAT COURT DOES NOT HAVE
SUBJECT MATTER JURISDICTION, IN ANY STATE COURT LOCATED IN THE CITY OF NEW YORK
AND THE COMPANY HEREBY SUBMITS TO THE JURISDICTION OF, AND VENUE IN, SUCH
COURTS.
12. Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement, or caused
this Agreement to be executed and delivered by their respective representatives
thereunto duly authorized, as of the date first above written.
COMPANY:
ADELPHIA COMMUNICATIONS CORPORATION
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Vice President
INVESTORS:
HIGHLAND HOLDINGS II
By: /s/ Xxxxxxx X. Xxxxx
Name:Xxxxxxx X. Xxxxx
Title: General Partner
XXXXX HOLDINGS, L.P.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President, Eleni
Acquisition, Inc.,
General Partner of Xxxxx
Holdings, L.P.
