Exhibit 10.04
HYPERION TELECOMMUNICATIONS, INC.
EXTENSION AGREEMENT
THIS AGREEMENT, made as of this 8th day of January, 1997, between
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (each a "Holder"
and collectively, the "Holders"), the six Trusts listed on the signature pages
to this Agreement (the "Trusts"), Adelphia Communications Corporation
("Adelphia") and Hyperion Telecommunications, Inc., a Delaware corporation (the
"Company").
WITNESSETH:
WHEREAS, the Holders, Adelphia and the Company are parties to a
Registration Rights Agreement dated as of October 25, 1996 with respect to the
Shares ("Shares") of Class B Common Stock, par value $.01 per share (the "Class
B Common Stock") of the Company held by the Holders;
WHEREAS, an initial public offering of the Class B Common Stock or the
Class A Common Stock of the Company, par value $.01 per share (the "Class A
Common Stock" and together with the Class B Common Stock, the "Common Stock")
has not yet occurred; and
WHEREAS, the parties which to clarify certain matters and extend the
time periods applicable to other matters agreed to in the Registration Rights
Agreement and the other documents referenced below.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Capitalized terms not otherwise defined in this
Agreement shall have the meanings ascribed to them in the Registration Rights
Agreement.
2. "IPO" shall mean an initial public offering, or a spinout,
of the Class A Common Stock or the Class B Common Stock that results in such
Common Stock being publicly traded and registered under the Securities Exchange
Act of 1934.
3. The aggregate amount of shares permitted to be gifted by a
Holder in Paragraph 3(c) of the Registration Rights Agreement shall be 150,000
shares prior to any stock splits, so long as the transfer of voting rights with
respect to such gifted shares is satisfactory to Adelphia and each donee
executes a joinder agreement to the Shareholder Agreement. The gifts made by
Messrs. ▇▇▇▇▇▇▇▇ and Fajerski on October 31, 1996, in the respective aggregate
amount of 80,000 shares for each such Holder (which gifts shall count towards
the 150,000 share maximum discussed above), are hereby ratified and approved, so
long as the voting rights with respect to such shares remain vested in the
current Trustees for the Trusts to which such shares were gifted, and provided
that such donee Trusts each execute joinder agreements to the Shareholder
Agreement.
4. The agreements contained in Paragraph 3(d) of the
Registration Rights Agreement are hereby extended to October 7, 1998, such that
if an IPO has been filed and is proceeding on October 7, 1998 or has been
consummated prior to October 7, 1998,
(a) if, as a result of the IPO, the Term Loans are repaid
with the proceeds of margin loans made to each of the Holders at or shortly
following the time of the IPO closing in the amount of $1 million or more, then
an amount equal to the interest that accrues on each such margin loan for a
period of up to 120 days from the date the margin loan was made shall be paid to
each of the Holders as a bonus by the Company on the 120th day of such period
(or such earlier date on which a margin loan is repaid) and the second paragraph
of Paragraph 3(d) regarding Gross-Up Payments shall be applicable to such Bonus
Payments;
(b) if each of the Holders is permitted to sell Common Stock
in the IPO with an aggregate gross sales price of at least $1 million each, then
the Term Loans will each be repaid in full at such IPO closing; and
(c) if the Holders are not permitted to sell Common Stock in
the IPO with an aggregate gross sales price of at least $1 million, then each
Term Loan will be repaid in full upon the earlier to occur of (x) one month
after the date on which the sum of (i) the amount of shares such Holder is then
permitted to sell under Rule 144 multiplied by the higher of the closing sales
or ask price on such date plus (ii) all gross proceeds from sales of Common
Stock by such Holder through and including such date equals at least $1 million,
(y) one day after such Holder on an aggregate basis has sold Common Stock and
received gross proceeds therefor of at least $1 million, or (z) one day after
such Holder is initially permitted to sell Common Stock pursuant to an effective
registration statement under the Registration Rights Agreement.
5. The provisions of Paragraphs 3(a) and 3(b) of the
Registration Rights Agreement shall remain in full force and effect with respect
to any IPO that has been filed and is proceeding on October 7, 1998 or has been
consummated prior to October 7, 1998. Further, the Holders' opportunity to each
sell up to $1 million worth of Common Stock in such an IPO, in the open market
following such an IPO, or in a combination of both, shall satisfy the piggyback
registration requirements of Section 9(i) of the Letter Agreement and Section
20(ii) of the Shareholder Agreement and shall thereby operate to terminate the
Shareholder Agreement effective as of the time of the first closing of such IPO
(without reference to any closing of any over-allotment option in an initial
public offering).
6. In the event that an IPO has been filed and is
proceeding on October 7, 1998,
(a) the Term Loans shall not be payable on October 8, 1998 but
(i) shall be payable as stated above or (ii) in the event such IPO is terminated
after October 7, 1998 without being consummated, shall be payable upon the
earlier of (x) the closing of any put exercised under Section 13 of the
Shareholder Agreement (and in such case the Term Loans will be paid from the put
closing proceeds to the extent possible) or (y) sixty (60) days following the
termination of such IPO;
(b) the Shareholder Agreement shall be automatically amended
such that all references to "October 7, 1998" therein shall be replaced with the
date that such IPO is ultimately consummated or terminated without being
consummated; and
(c) the Employment Agreements shall be automatically amended
such that term thereof shall be extended to terminate on the later of October
20, 1998 or the date the IPO is ultimately consummated or terminated without
being consummated.
7. The last sentence of Section 13(a) of the Shareholder
Agreement is amended to read in its entirety as follows: "An Individual
Shareholder shall have the right to exercise the above described put on a
one-time basis after October 7, 1998 for up to 25% of the shares owned by such
Individual Shareholder."
8. Except as set forth above, the Registration Rights
Agreement, the Employment Agreements, the Term Loans and the Shareholder
Agreement have not been modified and remain in full force and effect.
IN WITNESS WHEREOF, the undersigned have caused this Agreement
to be executed by a duly authorized representative as of the day first above
written.
HOLDERS:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
ADELPHIA:
ADELPHIA COMMUNICATIONS CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
COMPANY:
HYPERION TELECOMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
TRUSTS:
Mellon Bank, N.A., Co-Trustee with ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ under Deed
of Trust of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ dated October 31, 1996 for ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Co-Trustee
By: Mellon Bank, N.A., Co-Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Mellon Bank, N.A., Co-Trustee with ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ under Deed
of Trust of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ dated October 31, 1996 for
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Co-Trustee
By: Mellon Bank, N.A., Co-Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Mellon Bank, N.A., Co-Trustee with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ under
Deed of Trust of ▇▇▇▇ ▇▇▇▇▇▇▇▇ dated October 31, 1996 for
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Co-Trustee
By: Mellon Bank, N.A., Co-Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Mellon Bank, N.A., Co-Trustee with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ under
Deed of Trust of ▇▇▇▇ ▇▇▇▇▇▇▇▇ dated October 31, 1996 for
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Co-Trustee
By: Mellon Bank, N.A., Co-Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Mellon Bank, N.A., Co-Trustee with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ under
Deed of Trust of ▇▇▇▇ ▇▇▇▇▇▇▇▇ dated October 31, 1996 for
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Co-Trustee
By: Mellon Bank, N.A., Co-Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Mellon Bank, N.A., Co-Trustee with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ under
Deed of Trust of ▇▇▇▇ ▇▇▇▇▇▇▇▇ dated October 31, 1996 for
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Co-Trustee
By: Mellon Bank, N.A., Co-Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
