EXHIBIT 10.01
CLASS B VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Voting Agreement") is dated as of March 5,
1999 among Adelphia Communications Corporation, a Delaware corporation
("Parent"), and the holders of Class B Common Stock of Century Communications
Corp., a New Jersey corporation (the "Company"), identified on Schedule 1 (the
"Class B Shareholders").
RECITALS
A. Parent, Adelphia Acquisition Subsidiary, Inc., a Delaware
corporation and a wholly-owned subsidiary of Parent ("Merger Sub"), and the
Company have entered into an Agreement and Plan of Merger, dated as of the date
hereof (the "Merger Agreement"), providing for the merger of Century with and
into Merger Sub, on the terms, and subject to the conditions, set forth therein.
B. As an inducement to Parent to enter into the Merger Agreement and to
incur the obligations set forth therein, the Class B Shareholders have agreed to
enter into this Voting Agreement concurrently with the execution and delivery of
the Merger Agreement.
In consideration of the premises and the respective representations,
warranties, covenants, and agreements set forth herein, the Class B Shareholders
agree as follows.
Section 1. Definitions. Capitalized terms used but not defined herein
will have the meanings ascribed to them in the Merger Agreement.
Section 2. Representations and Warranties of the Class B Shareholders.
Each Class B Shareholder, severally and not jointly, represents and warrants to
Parent in respect to itself as follows:
(a) Authority. Such Class B Shareholder has all requisite
power and authority to enter into this Voting Agreement and to comply with its
obligations hereunder. This Voting Agreement has been duly executed and
delivered by such Class B Shareholder and constitutes the valid and binding
obligation of such Class B Shareholder, enforceable in accordance with its terms
except as may be limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws affecting creditors' rights generally
and by equitable principles of general applicability.
(b) Non-contravention. The execution and delivery of this
Voting Agreement do not, and compliance with such Class B Shareholder's
obligations hereunder will not, (i) contravene or conflict with or constitute a
violation of any provision of any law, regulation, judgment, injunction, order
or decree binding upon or applicable to such Class B Shareholder or the
Certificate of Incorporation or By-laws of the Company; (ii) result in a breach
or violation of or constitute a default (or an event that with the giving of
notice or the lapse of time or both would constitute a default) under or require
any consent, approval or authorization under any provision of any agreement for
borrowed money that is secured by a Lien upon the Class B Company Common Stock
owned by such Class B Shareholder or any trust or similar agreement applicable
to the Class B Company Common Stock owned by such Class B Shareholder.
(c) Ownership. Such Class B Shareholder is the record and
beneficial owner of, and has valid title to, the shares of Class B Company
Common Stock (the "Class B Shares") and Options, if any, set forth opposite the
name of such Class B Shareholder on Schedule 1 free and clear of any Lien (other
than any Lien deemed to be created hereby and restrictions on transfer arising
under federal and state securities laws). Such Class B Shareholder has the sole
right to vote such Class B Shares and any shares of Class A Company Common Stock
issuable on exercise of such Options or on conversion of such Class B Shares.
(d) Merger Agreement. Each Class B Shareholder understands and
acknowledges that Parent and Merger Sub are entering into the Merger Agreement
in reliance upon the Class B Shareholder's execution and delivery of this
Agreement.
Section 3. Agreement to Vote. Until the earlier of (i)
termination of the Merger Agreement pursuant to Section 9.01 thereof or (ii) the
Effective Time, each Class B Shareholder, severally and not jointly, agrees
that, at any meeting of shareholders of the Company or at any adjournment
thereof or in any other circumstances upon which its vote, consent or approval
(including written consent) is sought, such Class B Shareholder will vote, or
cause to be voted (including by execution of a written consent), its Class B
Shares: (i) in favor of the Merger, the approval and adoption of the Merger
Agreement and each of the other transactions contemplated by the Merger
Agreement and the calling of any shareholder meeting to consider any of the
foregoing; and (ii) against (A) any other merger agreement or other merger,
consolidation, combination, sale of substantial assets (other than the shares of
capital stock of Citizens Utilities Company owned by the Company),
reorganization, recapitalization, dissolution, liquidation or winding up of or
by the Company or any other Acquisition Transaction or (B) any amendment to the
Company's Certificate of Incorporation or By-laws or other proposal, which
amendment or proposal would impede, frustrate, prevent or nullify the Merger or
the Merger Agreement or any of the transactions contemplated by the Merger
Agreement or change the voting rights of any class of capital stock of the
Company.
Section 4. Covenants of the Class B Shareholders. Until the termination
of this Voting Agreement pursuant to Section 5, each Class B Shareholder,
severally and not jointly, agrees as follows:
(a) Except as provided in the immediately succeeding sentence
or pursuant to this Voting Agreement, such Class B Shareholder will not: (i)
sell, transfer, pledge, assign or otherwise encumber or dispose of (a
"Transfer"), or enter into any contract, option or other arrangement with
respect to a Transfer of, such Class B Shareholder's Class B Shares to any
Person other than pursuant to the Merger; (ii) convert such Class B Shares to
Class A Common Stock; or (iii) enter into any voting arrangement, whether by
proxy, power of attorney, voting agreement, voting trust or otherwise, with
respect to the Class B Shares. Each Class B Shareholder, for estate planning or
similar purposes, may, on notice to Parent, Transfer Class B Shares to a
transferee following the due execution and delivery to Parent by such transferee
of a counterpart to this Voting Agreement.
(b) Such Class B Shareholder will execute and deliver the
written agreement contemplated by Section 5.03 of the Merger Agreement.
(c) Such Class B Shareholder will not solicit, initiate or
knowingly encourage the submission to the Company of any proposal relating to an
Acquisition Transaction or participate in any negotiations regarding, or furnish
any information to any Person for the purposes of encouraging, a proposal
relating to an Acquisition Proposal in all cases other than the Merger.
(d) Such Class B Shareholder will not take any action that
would in any way restrict, limit or interfere with the performance of such Class
B Shareholder's obligations hereunder or the transactions contemplated hereby.
Section 5. Termination. This Agreement will terminate on the
earlier of (i) June 5, 2000, (ii) the Effective Time or (iii) termination of the
Merger Agreement pursuant to Section 9.01 thereof.
Section 6. Shareholder Capacity. No Class B Shareholder who is a
director or officer of the Company makes any agreement in this Voting Agreement
in his or her capacity as such director or officer. Each Class B Shareholder is
entering into this Voting Agreement solely in such Person's capacity as a
shareholder of the Company. The provisions of this Voting Agreement shall not
apply to actions taken or omitted to be taken by any such Person in his or her
capacity as a director or office of the Company.
Section 7. Enforcement. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in a court of the United States. This
being in addition to any other remedy to which they are entitled at law or in
equity. In addition, each of the parties hereto waives any right to trial by
jury with respect to any claim or proceeding related to or arising out of this
Agreement or any of the transactions contemplated hereby.
EACH CLASS B SHAREHOLDER AGREES THAT, IN CONNECTION WITH ANY LEGAL SUIT
OR PROCEEDING ARISING WITH RESPECT TO THIS AGREEMENT, IT SHALL SUBMIT TO THE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
AND AGREES TO VENUE IN SUCH COURTS. EACH CLASS B SHAREHOLDER HEREBY APPOINTS THE
SECRETARY OF THE COMPANY AS HIS OR HER AGENT FOR SERVICE OF PROCESS FOR PURPOSES
OF THE FOREGOING SENTENCE ONLY. EACH PARTY HERETO WAIVES ANY RIGHT TO JURY TRIAL
IN CONNECTION WITH ANY SUCH SUIT OR PROCEEDING.
Section 8. Miscellaneous.
(a) All notices, requests and other communications to any
party hereunder shall be in writing and shall be deemed to have been duly given
when delivered in person, by overnight courier or by facsimile to the respective
parties as follows:
If to Parent:
Adelphia Communications Corporation
Xxxx xx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxx X. Xxxxx, Executive Vice President
and
Xxxxx Xxxxxx, Esquire
with a copy to:
Xxxxxxxx Xxxxxxxxx Professional Corporation
Xxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxx X. Xxxxxx
Xxxx X. Xxxxxxxxxxxx
If to any of the Class B Shareholders, to their respective addresses
set forth on Schedule A, with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
or such other address or facsimile number as such party may specify for the
purpose by written notice to the other parties. Each such notice, request or
other communication will be effective: (i) if delivered in person, when such
delivery is made at the address specified in this Section 8(a); (ii) if
delivered by reputable overnight courier, the next business day after such
notice, request or other communication is sent to the address specified in this
Section 8(a); or (iii) if delivered by facsimile, when such facsimile is
transmitted to the facsimile number specified in this Section 8(a) and the
appropriate confirmation is received.
(b) The representations and warranties and agreements contained herein
and in any certificate or other writing delivered pursuant hereto will not
survive beyond the termination of this Voting Agreement.
(c) This Agreement may not be amended except by an instrument in
writing signed on behalf of all the parties.
(d) This Agreement will be construed in accordance with and governed by
the law of the State of Delaware applicable to agreements entered into and to be
performed wholly within such State.
(e) This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Agreement will become effective
when each party shall have received counterparts hereof signed by all of the
other parties.
IN WITNESS WHEREOF, each of the parties has caused this Voting
Agreement to be duly executed as of the day and year first above written.
ADELPHIA COMMUNICATIONS CORPORATION
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Vice President
/s/ Xxxxxxx Xxx
Xxxxxxx Xxx
THE XXXXXX XXX TRUST
By: /s/ Xxxxxxx Xxx
Xxxxxxx Xxx, Trustee
By: /s/ Xxxxxx Xxx
Xxxxxx Xxx, Trustee
By: /s/ Xxxxx X. Xxxxxxxxxx
Xxxxx X. Xxxxxxxxxx, Trustee
THE TRUST CREATED BY XXXXXX XXX UNDER DATE OF DECEMBER 10, 1979
By: /s/ Xxxxx X. Xxxxxxxxxx
Xxxxx X. Xxxxxxxxxx, Trustee
SCHEDULE 1
-------------------------------- -----------------------------------------
Class B Shareholder Class B Shares
-------------------------------- -----------------------------------------
-------------------------------- -----------------------------------------
Xxxxxxx Xxx 18,971,095
-------------------------------- -----------------------------------------
-------------------------------- -----------------------------------------
Trust dated December 10, 1979 by
Xxxxxx Xxx as Grantor 2,813,365
-------------------------------- -----------------------------------------
-------------------------------- -----------------------------------------
The Xxxxxx Xxx Trust, created
under date of July 1973 by 20,537,599
Xxxxxxx Xxx as Grantor
-------------------------------- -----------------------------------------
