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EXHIBIT 10.26
CENTURY COMMUNICATIONS CORP. WARRANT (INITIAL WARRANT)
THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATES OF THE UNITED STATES. THESE
SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT
BE TRANSFERRED OR RESOLD EXCEPT PURSUANT TO REGISTRATION UNDER THE ACT OR
PURSUANT TO AN EXEMPTION THEREFROM, AND EXCEPT AS PERMITTED UNDER APPLICABLE
STATE SECURITIES LAWS. INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO
BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED TRANSFER OR
RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
Issue Date: May 5, 1998
WARRANT TO PURCHASE SERIES A COMMON STOCK
OF
AT HOME CORPORATION
THIS CERTIFIES THAT in consideration of the continued rapid deployment
of the @Home Service of At Home Corporation, a Delaware corporation (the
"COMPANY"), Century Communications Corp., a New Jersey corporation (the "INITIAL
REGISTERED HOLDER"), or its permitted registered assigns (including the Initial
Registered Holder, the "REGISTERED Holder"), is entitled, subject to the terms
and conditions of this Warrant, to purchase from the Company at any time (i) on
or after the Commencement Date and (ii) on or prior to the Expiration Date,
2,630,000 shares of the Company's Series A Common Stock (subject to adjustment
as set forth in the Company's Certificate of Incorporation), at an exercise
price equal to $10.50 per share of Series A Common Stock (such price, as it may
be adjusted pursuant to the provisions of Section 5 below, referred to as the
"EXERCISE PRICE"), upon surrender of this Warrant at the principal office of the
Company, together with a duly executed subscription form in the form attached
hereto as Exhibit 1 and simultaneous payment of the full exercise price for the
shares of Warrant Stock so purchased. The Exercise Price and the number and kind
of shares of Warrant Stock purchasable under this Warrant are subject to
adjustment as provided herein.
Notwithstanding anything to the contrary contained in this Warrant, this Warrant
and all rights to purchase Warrant Stock hereunder shall terminate on the
Expiration Date.
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1. CERTAIN DEFINITIONS.
1.1 DEFINITIONS INCORPORATED BY REFERENCE. The following terms shall
have the meaning ascribed to them in the @Home Network Distribution Agreement,
dated as of May 1, 1998, between the Company and the Initial Registered Holder:
Term Cross Reference
---- ---------------
@Home Service Section 1(d)
@Home Facilities Upgrade Section 1(b)
Deployment Schedule Section 1(l)
Living Unit Section 1(s)
Master Roll-Out Plan Section 2(a)(i)
MDU Section 1(y)
One-Way Data-Ready Cable System Section 1(k)
Service Area Section 1(ee)
Service Area Plan Section 2 (b)(i)
Two-Way Data-Ready Cable System Section 1(k)
1.2 ADDITIONAL DEFINITIONS. The following additional definitions shall
apply for purposes of this Warrant:
"ACT" means the Securities Act of 1933, as amended.
"COMMENCEMENT DATE" means March 31, 1999.
"COMMERCIALLY DEPLOYED" means a Eligible Living Unit that is: (i)
connected to a Two-Way Data-Ready Cable System or to a One-Way Data-Ready Cable
System; and (ii) able to subscribe to the @Home Service, if desired.
Notwithstanding the foregoing, if an Eligible Living Unit that is connected to a
Two-Way Data-Ready Cable System or to a One-Way Data-Ready Cable System is not
able to subscribe to the @Home Service because the Company has not completed the
@Home Facilities Upgrade in accordance with the Deployment Schedule set forth in
the Service Area Plan for that Eligible Living Unit, such Eligible Living Unit
will be considered "Commercially Deployed." A Eligible Living Unit will be
considered "connected" to a Two-Way Data Ready Cable System or a One-Way Data
Ready Cable System, if the Eligible Living Unit is located within 150 feet of
the applicable Two-Way Data Ready Cable System or One-Way Data Ready Cable
System. A Eligible Living Unit in a MDU that meets the criteria set forth in
clause (i) and (ii) above shall be counted as one Commercially Deployed Living
Unit.
"DETERMINATION DATE" means March 31 of each of 1999, 2000, 2001,
2002 and 2003.
"DISTRIBUTION AGREEMENT" means the @Home Network Distribution
Agreement, dated as of May 1, 1998, between the Company and the Initial
Registered Holder.
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"ELIGIBLE LIVING UNITS" means the Living Units in those Service
Areas indicated on the Master Roll-Out Plan that were used for calculating the
number of Warrant Shares.
"EXPIRATION DATE" means 5:00 p.m. Pacific Time on June 1, 2004.
"ISSUE DATE" means the date of this Warrant.
"PERSON" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint stock company, trust,
unincorporated organization, government or agency or political subdivision
thereof, or other entity, whether acting in an individual, fiduciary or other
capacity.
"SEC" means the U.S. Securities and Exchange Commission.
"SECOND WARRANT" means the warrant (and any warrant(s) delivered
in substitution or exchange therefor, as provided therein) to be issued to the
Initial Registered Holder upon the occurrence of certain events, pursuant to the
Warrant Purchase Agreement, dated as of the date of this Warrant, between the
Company and the Initial Registered Holder.
"SERIES A COMMON STOCK" means the Company's Series A Common
Stock, par value $0.01 per share, and stock of any other series or class into
which the same may be changed.
"WARRANT" means this Warrant and any warrant(s) delivered in
substitution or exchange therefor, as provided herein.
"WARRANT PURCHASE AGREEMENT" means the Agreement dated of even
date herewith between the Company and the Initial Registered Holder relating to
the purchase of this Warrant.
"WARRANT STOCK" means shares of Series A Common Stock issued upon
exercise of this Warrant (or, for the purposes of Section 2.1.2, the Second
Warrant).
2. EXERCISE.
2.1 Exercisability of Warrant. This Warrant is not immediately
exercisable, and will become exercisable with respect to that number of shares
of Warrant Stock as follows:
2.1.1 On each Determination Date, this Warrant shall become
exercisable as to a number of shares of Warrant Stock equal to (x) the number of
Eligible Living Units which, on such date, are (A) subject to a Service Area
Plan and (B) Commercially Deployed, multiplied by (y) two. On or following a
Determination Date, the Registered Holder shall provide the Company with a
certificate, executed by either the Chief Executive Officer or Chief Financial
Officer of the Registered Holder, setting forth in detail its calculation of
such number of residences, which determination shall be conclusive unless
disputed by the Company. In the event that the Company shall dispute such
determination, the Company shall, within three
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business days of its receipt of the Registered Holder's certificate, give
written notice to the Registered Holder, setting forth in detail the basis of
its dispute. In the event of such a dispute, no shares of Warrant Stock shall
become exercisable in connection with such Determination Date until both the
Company and the Registered Holder shall have resolved such dispute to their
mutual satisfaction. For the avoidance of doubt, shares of Warrant Stock
exercisable prior to such Determination Date shall continue to be exercisable
regardless of any such dispute.
2.1.2 If, between January 1, 1999 and December 31, 1999, the
Initial Registered Holder enters into a binding purchase agreement to acquire
additional Living Units in the Los Angeles area from one or more cable
operators, excluding any acquired Living Units in respect of which any cable
operator has received equity securities of the Company (including warrants and
other exercisable or convertible securities) (the "1999 ACQUIRED HOMES"), either
this Warrant or the Second Warrant (if such Second Warrant has been issued)
shall, on the appropriate Determination Date, become exercisable as to a number
of shares of Warrant Stock equal to (x) the number of 1999 Acquired Homes which
are (A) subject to a Service Area Plan and (B) Commercially Deployable,
multiplied by (y) two. The certification and dispute provisions of Section 2.1.1
shall also apply to the exercisability of shares of Warrant Stock under this
Section 2.1.2.
2.1.3 In no event shall the number of shares of Warrant Stock
exercisable pursuant to Sections 2.1.1 and 2.1.2 of this Warrant exceed
2,630,000.
2.2 Surrender. Subject to compliance with all applicable
securities laws and the provisions of Section 2.1, this Warrant may be exercised
in whole or in part by surrendering this Warrant at the principal office of the
Company at 000 Xxxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000, with the subscription
form attached hereto as Exhibit 1 duly executed by the Registered Holder,
accompanied by payment as set forth in Section 2.3 below.
2.3 Payment of Exercise Price. Payment shall be made at any time
with respect to shares of Warrant Stock being purchased hereunder (x) by the
payment to the Company, by cash, check and/or wire transfer, of an amount equal
to the then-applicable Exercise Price per share multiplied by the number of
shares of Warrant Stock then being purchased, or, at the option of the
Registered Holder, (y) by surrendering to the Company for cancellation the right
to receive upon exercise hereof a number of shares of Series A Common Stock
equal to the value (as determined below) of the shares of Warrant Stock with
respect to which this Warrant is being exercised, in which case the number of
shares to be issued to the Registered Holder upon such exercise shall be
computed using the following formula:
X = Y(A-B)
-----
A
Where: X = the number of shares of Series A Common Stock to be
issued to the Registered Holder.
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Y = the number of shares of Series A Common Stock with
respect to which this Warrant is being exercised and
with respect to which the right to receive shares is
being cancelled.
A = the fair market value of one share of Series A Common
Stock.
B = the Exercise Price per share of Series A Common Stock
(as it may be adjusted pursuant to the provisions of
Section 5);
provided, that in the case of a cashless exercise pursuant to clause (y), the
Registered Holder shall only be entitled to surrender for cancellation the right
to receive shares which may then be issued upon exercise of this Warrant.
As used herein, the "fair market value of one share of Series A Common Stock"
shall mean the average, for the five trading days (or such fewer number of days
as the Company's Series A Common Stock may have been publicly traded) ending
with the trading day which is two trading days prior to the date of such
surrender, of:
(a) the closing prices of the Company's Series A Common
Stock sold on the securities exchange(s) on which the Series A Common Stock may
at the time be listed, or
(b) if there have been no sales on such exchange(s) on
any such trading day, the average of the highest bid and lowest asked prices on
such exchange(s) at the end of such day, or
(c) if on any such trading day the Series A Common Stock
is not so listed, the average of the representative bid and asked prices quoted
on the Nasdaq National Market ("NASDAQ") as of 4:00 p.m., New York City time, on
such day, or
(d) if on any such trading day the Series A Common Stock
is not quoted on Nasdaq, the average of the highest bid and lowest asked price
on such day in the domestic over-the-counter market as reported by the National
Quotation Bureau, Incorporated, or any similar successor organization.
2.4 Date of Exercise; Fractional Shares. Except as otherwise
provided in Section 2.3, this Warrant shall be deemed to have been exercised
immediately prior to the close of business on the date of its surrender for
exercise as provided in Sections 2.2 and 2.3, and the person entitled to receive
the shares of Warrant Stock issuable upon such exercise shall be treated for all
purposes as the holder of record of such shares as of the close of business on
such date. As soon as practicable on or after such date, the Company shall issue
and deliver to the person or persons entitled to receive the same a certificate
or certificates for the number of whole shares of Warrant Stock issuable upon
such exercise, together with cash in lieu of any fraction of a share equal to
such fraction of the current fair market value of one whole share of Warrant
Stock as of the date of exercise, as determined in good faith by the Company's
Board of Directors. No
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fractional shares may be issued upon any exercise of this Warrant, and any
fractions shall be rounded down to the nearest whole number of shares.
2.5 Partial Exercise. Upon a partial exercise of this Warrant,
this Warrant shall be surrendered by the Registered Holder and replaced with a
new Warrant of like tenor in the name of the Registered Holder providing for the
right to purchase the number of shares of Warrant Stock as to which this Warrant
has not then been exercised.
2.6 Taxes. The issuance of certificates for shares of Warrant
Stock upon the exercise of this Warrant will be made without charge by the
Company to the Registered Holder for any issue tax (other than applicable income
tax).
3. REPRESENTATIONS AND COVENANTS OF THE COMPANY.
3.1 Fully Paid Shares; Reservation. The Company hereby represents
and warrants to the Registered Holder that all shares of Warrant Stock which may
be issued upon exercise of this Warrant shall have been duly and validly
reserved for issuance and, upon issuance, be duly authorized, validly issued,
fully paid and nonassessable, and free of any liens, claims, charges, security
interests, pledges or encumbrances of any kind, except for restrictions on
transfer provided for in this Warrant and under applicable federal and state
securities laws. If at any time the number of authorized but unissued shares of
the Company's Warrant Stock shall not be sufficient to effect the exercise of
this Warrant, the Company will take such corporate action as may, in the opinion
of its counsel, be necessary to increase its authorized but unissued shares of
Warrant Stock to such number of shares of Warrant Stock as shall be sufficient
for such purpose.
3.2 Notices. The Company agrees that it will notify the
Registered Holder at least ten (10) business days in advance of the proposed
consummation of any pending consolidation or merger of the Company into any
other corporation or the sale of all or substantially all of the Company's
assets to another corporation, unless after the closing of any such transaction
the stockholders of the Company immediately prior to such transaction own in
excess of fifty percent (50%) of the voting power of the surviving corporation
or its parent corporation. Such notice shall include a description of all
material terms and conditions of such transaction and the per share value of the
consideration to be paid in connection therewith, and other information given by
the Company to the holders of its Series A Common Stock in connection with their
approval thereof.
3.3 No Impairment. The Company will not, by amendment of its
Certificate of Incorporation or Bylaws, or through reorganization,
consolidation, merger, dissolution, issue or sale of securities, sale of assets
or any other voluntary action, willfully avoid or seek to avoid the observance
or performance of any of the terms of this Warrant, but will at all times in
good faith assist in the carrying out of all such terms and in the taking of all
such action as may be necessary or appropriate in order to protect the rights of
the Registered Holder under this Warrant against wrongful impairment. Without
limiting the generality of the foregoing, the Company: (i) will not set nor
increase the par value of any shares of stock issuable upon exercise of this
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Warrant above the amount payable therefor upon such exercise, and (ii) will take
all such action as may be necessary or appropriate in order that the Company may
validly and legally issue fully paid and non-assessable shares of Warrant Stock
upon the exercise of this Warrant.
4. TRANSFER RESTRICTIONS.
4.1 Limitations on Transfer.
(i) Any portion of this Warrant that is then exercisable
pursuant to Section 2.1 above may be assigned, conveyed or transferred by the
Registered Holder to a third party without the Company's consent provided that
the third party agrees in writing to comply with all of the terms and conditions
of this Warrant and the Company is informed in writing of such assignment,
conveyance or transfer.
(ii) Unless otherwise agreed by @Home in writing, which
consent will not be unreasonably withheld, any portion of this Warrant that is
not exercisable may not be assigned, conveyed or transferred by the Registered
Holder to a third party except when the Eligible Homes underlying that portion
of the Warrant are transferred to that third party in accordance with the
Distribution Agreement, such third party agrees in writing to comply with all of
the terms and conditions of this Warrant, and the Company is informed in writing
of such assignment, conveyance or transfer.
4.2 Mechanics and Effects of Transfer. Any assignment, conveyance
or transfer of the Warrant, the Warrant Stock or the rights hereunder shall be
made on the books of the Company maintained for such purpose at the principal
office of the Company upon surrender of this Warrant or the Warrant Stock and a
properly completed assignment in the form of Exhibit 2 hereto. All transferees
under this Section 4 will be bound by the provisions of this Section 4.
Notwithstanding the foregoing, this Warrant and the rights hereunder may not be
assigned, conveyed or transferred unless such assignment, conveyance or transfer
also complies with all applicable securities laws and the provisions of Section
8.2 hereof.
4.3 Legends; Notations. The certificates evidencing the Warrant
Stock shall be endorsed with the legends set forth below:
(a) a conspicuously noted legend in substantially the
following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF UNLESS AND UNTIL REGISTERED UNDER THE ACT AND ANY
APPLICABLE STATE SECURITIES LAWS OR UNLESS, IN THE OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY, SUCH SALE, TRANSFER, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION IS EXEMPT FROM REGISTRATION OR IS OTHERWISE IN COMPLIANCE WITH THE
ACT AND SUCH LAWS."; and
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(b) any legend required by any applicable state
securities law.
The Company shall make a notation on its stock books regarding
the restrictions on transfer of the Warrants and Warrant Stock provided by
applicable securities and other laws and this Warrant, and will transfer
securities on the books of the Company only to the extent not inconsistent
therewith. Without limiting the foregoing, the Company shall refuse to register
any transfer of the Warrants or Warrant Stock not made in accordance with or
pursuant to an applicable exemption from registration under the Act and
applicable state securities laws.
5. ADJUSTMENT OF EXERCISE PRICE, NUMBER AND KIND OF SHARES. The number
and kind of shares of Warrant Stock issuable upon exercise of this Warrant (or
any shares of stock or other securities or property at the time receivable or
issuable upon exercise of this Warrant) and the Exercise Price therefor, are
subject to adjustment upon the occurrence of the following events:
5.1 Adjustment for Stock Splits, Stock Dividends,
Recapitalizations, etc. The Exercise Price of this Warrant and the number of
shares of Series A Common Stock issuable upon exercise of this Warrant shall
each be proportionally adjusted to reflect any stock dividend, stock split,
reverse stock split, recapitalization and the like affecting the number of
outstanding shares of Series A Common Stock that occurs after the Issue Date.
5.2 Adjustment for Reorganization, Consolidation, Merger. In case
of any reorganization of the Company (or of any other corporation, the stock or
other securities of which are at the time receivable on the exercise of this
Warrant), after the Issue Date, or in case, after such date, the Company (or any
such corporation) shall consolidate with or merge into another corporation or
convey all or substantially all of its assets to another corporation or other
entity, then, and in each such case, the Registered Holder of this Warrant, upon
any permitted exercise of this Warrant (as provided in Section 2), at any time
after the consummation of such reorganization, consolidation, merger, or
conveyance, shall be entitled to receive, in lieu of the stock or other
securities and property receivable upon the exercise of this Warrant prior to
such consummation, the stock or other securities or property to which such
Registered Holder would have been entitled upon the consummation of such
reorganization, consolidation, merger or conveyance if such Registered Holder
had exercised this Warrant immediately prior thereto, all subject to further
adjustment as provided in this Section 5, and the successor or purchasing
corporation or other entity in such reorganization, consolidation, merger or
conveyance (if other than the Company) shall duly execute and deliver to the
Registered Holder a supplement hereto acknowledging such corporation's or
entity's obligations under this Warrant; and in each such case, the terms of
this Warrant (including the exercisability, transfer and adjustment provisions
of this Warrant) shall be applicable to the shares of stock or other securities
or property receivable upon the exercise of this Warrant after the consummation
of such reorganization, consolidation, merger or conveyance.
6. CERTIFICATE AS TO ADJUSTMENTS. In each case of any adjustment in
either the Exercise Price or in the number of shares of Warrant Stock, or other
stock, securities or property receivable upon the exercise of this Warrant, the
Chief Financial Officer of the Company shall
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promptly thereafter compute such adjustment in accordance with the terms of this
Warrant and prepare a certificate setting forth such adjustment and showing in
detail the facts upon which such adjustment is based, including a statement of
the adjusted Exercise Price. The Company will cause copies of such certificate
to be mailed (by first class mail, postage prepaid) to the Registered Holder.
7. LOSS OR MUTILATION. Upon receipt by the Company of evidence
reasonably satisfactory to it of the ownership, and the loss, theft, destruction
or mutilation, of this Warrant, and of indemnity reasonably satisfactory to it,
and (in the case of mutilation) upon surrender and cancellation of this Warrant,
the Company will execute and deliver in lieu thereof a new Warrant of like
tenor.
8. REPRESENTATIONS AND WARRANTIES OF THE REGISTERED HOLDER.
8.1 Restrictions under Securities Laws. The Registered Holder
understands that neither the offer and sale of this Warrant nor the offer and
sale of shares of Warrant Stock that may be purchased upon exercise thereof have
been registered under the Act, or any state securities laws. As a condition to
the issuance of this Warrant and to its exercise the Registered Holder hereby
represents and warrants to the Company that:
(a) The Warrant and the underlying shares of Warrant Stock
(collectively, the "SECURITIES") are being and/or will be acquired by the
Registered Holder in a transaction exempt from registration under Section 4(2)
of the Act and/or Regulation D promulgated under the Act, for its own account,
for investment purposes only, and not with a view to the sale or other
distribution thereof within the meaning of the Act and the Registered Holder has
no present intention of selling or otherwise disposing of all or any portion of
the Securities except as permitted by the Warrant Purchase Agreement and this
Warrant.
(b) The Registered Holder is capable of evaluating the
merits and risks of any investment in the Securities, is financially capable of
bearing a total loss of this investment and either: (i) has a preexisting
personal or business relationship with the Company or its principals; (ii) by
reason of the Registered Holder's business or financial experience, has the
capacity to protect his or its own interests in connection with this investment;
or (iii) if the Registered Holder is the Initial Registered Holder, is an
"accredited investor" within the meaning of Regulation D promulgated under the
Act, as amended.
(c) The Registered Holder has had access to all
information regarding the Company, its present and prospective business, assets,
liabilities and financial condition that the Registered Holder considers
important to making the decision to acquire the Securities and has had ample
opportunity to ask questions of and receive answers from the Company's
representatives concerning an investment in the Securities and to obtain any and
all documents requested in order to supplement or verify any of the information
supplied.
(d) The Registered Holder understands that the Securities
shall be deemed restricted securities under the Act and may not be resold unless
they are registered under
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the Act and any applicable State securities law, or in the opinion of counsel in
form and substance satisfactory to the Company, an exemption from such
registration is available.
(e) The Registered Holder is aware of Rule 144 promulgated
under the Act, which rule provides, in substance, that: (i) after one year from
the date restricted securities have been purchased and fully paid for, a holder
may transfer restricted securities provided certain conditions are met (e.g.,
certain public information is available about the Company), and specific
limitations on the amount of shares which can be sold within certain periods and
the manner in which such shares must be sold are complied with; and (ii) after
two years from the date the securities have been purchased and fully paid for,
holders who are not "affiliates" of the Company may sell restricted securities
without satisfying such conditions.
(f) The Registered Holder further understands that if the
requirements of Rule 144 are not met, registration under the Act or compliance
with some other registration exemption will be required for any disposition of
the Securities; and that, although Rule 144 is not exclusive, the SEC has
expressed its opinion that persons proposing to sell restricted securities other
than in a registered offering or other than pursuant to Rule 144 will have a
substantial burden of proof in establishing that an exemption from registration
is available for such offers or sales and such persons and the brokers who
participate in the transactions do so at their own risk. The Registered Holder
understands that the Company is under no obligation to register the Securities
or take any other actions under the Act or any state securities laws.
8.2 Compliance with Securities Laws. The Registered Holder of
this Warrant, by acceptance hereof, agrees that, absent an effective
registration statement filed with the SEC under the Act covering the disposition
or sale of any Securities, such Registered Holder will not sell or transfer any
or all of such Securities unless such sale or transfer is pursuant to an
available exemption from registration under the Act and applicable state
securities laws. As a condition to any such sale or transfer, the Registered
Holder shall first provide the Company with an opinion of counsel satisfactory
to the Company to the effect that such sale or transfer is or will be exempt
from the registration and prospectus delivery requirements of the Act and
applicable state securities laws. Such Registered Holder consents to the Company
making a notation on its records, or giving instructions to any transfer agent
of such Securities, in order to implement the foregoing restrictions on
transfer. The shares issued upon exercise of this Warrant shall bear legends
referring to the restrictions on transfer set forth in this Section 8. As a
condition to the transfer of this Warrant or transfer of the shares issuable on
exercise hereof, any permitted transferee must execute and deliver to the
Company representations and warranties similar to these set forth in this
Section 8 and applicable to a transferee of securities in an exempt transaction
under the Act and must agree in writing to accept and be bound by all the terms
and conditions of this Warrant.
9. NO RIGHTS OR LIABILITIES AS STOCKHOLDER. This Warrant does not by
itself entitle the Registered Holder to any voting rights or other rights as a
stockholder of the Company. In the absence of affirmative action by the
Registered Holder to purchase Warrant Stock by exercise of this Warrant, no
provisions of this Warrant, and no enumeration herein of the rights or
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privileges of the Registered Holder shall cause such Registered Holder to be a
stockholder of the Company for any purpose.
10. REGULATORY COMPLIANCE. If the Registered Holder of this Warrant or
the Warrant Stock would be subject to the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976 and the rules and regulations thereunder (collectively,
the "ANTITRUST LAW"), then prior to such exercise or conversion and following
such Registered Holder's notice to the Company of its intention to exercise or
convert, the Company and such Registered Holder shall promptly use commercially
reasonable efforts to comply with any applicable requirements under the
Antitrust Law relating to filing and furnishing of information to the Federal
Trade Commission and the Antitrust Division of the Department of Justice. Each
of the Company and such Registered Holder shall bear and pay any costs or
expenses that it incurs in compliance with this requirement.
11. AMENDMENT; WAIVER. Any term of this Warrant may be amended and the
observance of any term of this Warrant may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Registered Holder. Any amendment or
waiver effected in accordance with this Section 11 shall be binding upon the
Registered Holder, any future Registered Holder and the Company.
12. NOTICES. All notices and other communications from the Company to
the Registered Holder shall be deemed given when personally delivered, mailed by
first-class registered or certified mail, postage prepaid, delivered by
recognized overnight courier service, or transmitted by facsimile (with
confirmation by first class mail), to the address furnished to the Company in
writing by the Registered Holder who shall have furnished an address and/or
facsimile number to the Company in writing.
13. HEADINGS. The headings in this Warrant are for purposes of
convenience in reference only, and shall not be deemed to constitute a part
hereof.
14. LAW GOVERNING. This Warrant shall be construed and enforced in
accordance with, and governed by, the internal laws of the State of Delaware,
excluding that body of law applicable to conflicts of laws.
15. TERMS BINDING. By acceptance of this Warrant, the Registered Holder
of this Warrant (and each subsequent assignee, transferee or Registered Holder
of this Warrant) accepts and agrees to be bound by all the terms and conditions
of this Warrant.
16. COUNTERPARTS. This Warrant may be executed in one or more
counterparts, each of which shall be an original and all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the Company and the Registered Holder have executed this
Warrant as of the Issue Date.
THE COMPANY: ACKNOWLEDGED AND ACCEPTED
BY REGISTERED HOLDER:
AT HOME CORPORATION CENTURY COMMUNICATIONS CORP.
By: /s/ XXXX X. XXXXXXX By: /s/ XXXXXXXX X. BAIL
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Name: Xxxx X. Xxxxxxx Name: Xxxxxxxx X. Bail
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Title: SVP, GM @Home Title: Vice President
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