EXHIBIT 7(b)
ADELPHIA COMMUNICATIONS CORPORATION
REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT, made as of the 30th day of September, 1998, by and
among TCI DEVELOPMENT CORPORATION, a Colorado corporation ("TCI"), and ADELPHIA
COMMUNICATIONS CORPORATION, a Delaware corporation (the "Company").
WHEREAS, TCI has acquired a number of shares of the Class A Common
Stock of the Company, par value $.01 (the "Common Stock") pursuant to that
certain Agreement and Plan of Merger by and among TCID-SVHH, Inc., SHHH
Acquisition Corp., TCI and the Company, dated August 31, 1998 (the "Merger
Agreement"); and
WHEREAS, TCI and the Company have reached the agreements set forth
herein and desire to provide that the Registrable Securities (as defined herein)
shall be held by TCI subject to the rights described herein.
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. Definitions. For purposes of this Agreement:
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(a) The term "Act" means the Securities Act of 1933, as amended,
or any other statute in effect from time to time corresponding to such act.
(b) The term "Commission" means the Securities and Exchange
Commission, or any successor agency thereto.
(c) The terms "register," "registered," and "registration" refer
to a registration effected by preparing and filing a registration statement in
compliance with the Act and the declaration or ordering of effectiveness of such
registration statement.
(d) The term "Registrable Securities" means (i) the shares of
Common Stock issued to TCI pursuant to the Merger Agreement and held by the
Holders (as herein defined) and (ii) any securities of the Company issued as a
dividend or other distribution with respect to, or in exchange for or in
replacement of, such Common Stock. Registrable Securities, if transferred
pursuant to an exemption from registration under the Act, will no longer be
Registrable Securities except to the extent they shall be held by a Holder.
(e) The term "Holder" or "Holders" means (i) TCI and (ii) any
other person or entity holding Registrable Securities to whom these registration
rights have been transferred in accordance with Section 9 of this Agreement.
2. Request for Registration.
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(a) If, at any time after the first anniversary of the date of this
Agreement, the Company shall receive a written request (specifying that it is
being made pursuant to this Section 2) from the Holders that the Company file a
registration statement or similar document under the Act covering Registrable
Securities held by such Holders (a "Registration Statement"), then the Company
shall promptly use its best efforts to file a Registration Statement and to
effect such registration of all Registrable Securities that Holders have
requested be so registered to be registered under the Act. The Company shall be
obligated to effect only two registrations pursuant to this Agreement, and shall
not be obligated to effect a registration to the extent that the Holders may
sell all their Registrable Securities without being subject to a holding period
or volume limitations and without such Holders being required to deliver a
prospectus in connection therewith under the Act.
(b) Notwithstanding the foregoing, in the event that prior to the
first anniversary of the date hereof TCI is required to dispose of Registrable
Securities in order to decrease the ownership interests attributed to TCI and
its affiliates so that TCI and its affiliates would not be deemed to have an
"attributable interest" in the Company under the horizontal attribution rules of
the Federal Communications Commission, TCI may request the Company to file a
Registration Statement prior to the first anniversary of the date of this
Agreement without such registration counting towards the two demand
registrations permitted pursuant to Section 2(a) above, and the Company shall
promptly use its best efforts to do so and to effect the registration of such
Registrable Securities under the Act; provided, however, that to the extent any
such request pursuant to this Section 2(b) is delivered to the Company within 45
days prior to the first anniversary of this Agreement, such request shall be
deemed to count as one of the two demand registrations granted pursuant to
Section 2(a).
(c) The Company shall cause Registration Statements filed in
connection with a demand under Sections 2(a) or (b) to be effective continuously
for one hundred twenty (120) days from the date of initial effectiveness of the
Registration Statement (provided that such period shall be extended by the
length of time during which TCI is blocked from selling the Registrable
Securities pursuant to Sections 2(d) and 8 of this Agreement), or until the
earliest date upon which all Registrable Securities held by Holders either (i)
have been sold by them or (ii) may be sold by them without being subject to a
holding period or volume limitations and without such Holders being required to
deliver a prospectus in connection therewith under the Act.
(d) Notwithstanding the foregoing, the Company may request the
Holders not to (and upon such request the Holders hereby agree not to) make any
sales pursuant to an effective Registration Statement for up to two periods of
thirty (30) days, as the Company shall specify, provided that the Company shall
furnish to each such Holder a certificate signed by the President, the Chief
Executive Officer or a Vice President of the Company stating that, in the good
faith judgment of the Company, such registration and offering would materially
interfere
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with or otherwise materially adversely affect any financing, acquisition,
corporate reorganization or other material transaction or development involving
the Company or any of its affiliates or require the Company to disclose matters
that otherwise would not be required to be disclosed at such time.
3. Obligations of the Company. Whenever required under Section 2 to use
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its best efforts to effect the registration of any Registrable Securities, the
Company shall, as promptly as practicable:
(a) Prepare and file with the Commission a Registration Statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become and remain effective for the applicable periods
stated under Section 2. In connection therewith, the Company shall notify
Holders of the happening of any event during the period a Registration Statement
is effective which makes any statement made in such Registration Statement or
the related prospectus untrue in any material respect or which requires the
making of any changes in such Registration Statement or prospectus so that, as
of such date, the statements therein are not misleading and do not omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading (which advice shall be accompanied by an
instruction to suspend the use of the prospectus until the requisite changes
have been made) and consistent with the Company's past practices, prepare a
supplement or post-effective amendment to a Registration Statement or the
related prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the purchasers of
the Registrable Securities, such prospectus will not contain any 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, in light of the
circumstances under which they were made, not misleading;
(b) Prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in connection
with such Registration Statement as may be necessary to keep the prospectus
current and comply with the provisions of the Act with respect to the
disposition of all securities covered by such registration statement;
(c) Notify the Holders, (i) when the Registration Statement becomes
effective, (ii) when the filing of a post-effective amendment to the
Registration Statement or supplement to the prospectus is required, when the
same is filed and, in the case of a post-effective amendment, when the same
becomes effective, (iii) of any request by the Commission for any amendment of
or supplement to the Registration Statement or any prospectus relating thereto
or for additional information, and (iv) of the entry of any stop order
suspending the effectiveness of the Registration Statement or of the initiation
of any proceedings for that purpose;
(d) Furnish to the Holders and deliver as directed by them a conformed
copy of the Registration Statement as declared effective by the Commission and
of each post-effective amendment thereto, such numbers of copies of a
prospectus, including a preliminary prospectus or supplement, in conformity with
the requirements of the Act, and such other documents as they
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may reasonably request in order to facilitate the disposition of Registrable
Securities owned by them;
(e) Register and qualify the securities covered by the Registration
Statement under such other securities or Blue Sky laws of such jurisdictions as
shall be reasonably requested by the Holders, provided that the Company shall
not be required in connection therewith or as a condition thereto to qualify to
do business or to file a general consent to service of process in any such
states or jurisdictions; and
(f) Cause such Registrable Securities covered by the Registration
Statement to be listed on the principal exchange or exchanges or qualified for
trading on the principal over-the-counter market on which the Registrable
Securities are then listed or traded upon the sale of such Registrable
Securities pursuant to the Registration Statement.
4. Furnish Information. It shall be a condition precedent to the
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obligations of the Company to take any action pursuant to this Agreement that
the Holders shall furnish to the Company such information regarding them, the
Registrable Securities held by them, and the intended method of disposition of
such securities as the Company shall reasonably request and as shall be required
in connection with the action to be taken by the Company. In addition, the
Holders agree to promptly provide the Company written notice of sales of
Registrable Securities (including share amounts) upon request by the Company in
writing.
5. Expenses of Registration. All expenses incurred in connection with a
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Registration Statement pursuant to Section 2 (excluding underwriters' discounts
and commissions), including without limitation all registration and
qualification fees, printers' and accounting fees, fees and disbursements of
counsel for the Company, but not including fees and disbursements of counsel,
consultants or other advisors for the selling Holders, shall be borne by the
Company.
6. Indemnification and Contribution. In the event any Registrable
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Securities are included in a registration statement under this Agreement:
(a) To the extent not prohibited by law the Company will indemnify and
hold harmless each Holder requesting or joining in a registration, any
underwriter (as defined in the Act) for it, and each person or entity, if any,
who controls such Holder or underwriter within the meaning of the Act or the
Securities Exchange Act of 1934 (the "1934 Act") against any losses, claims,
damages or liabilities, joint or several, to which they may become subject under
the Act, the 1934 Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based on any
untrue or alleged untrue statement of any material fact contained in such
Registration Statement, including any preliminary prospectus or final
prospectus, or any amendments or supplements 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 or arise out of any violation by the Company of any rule or
regulation promulgated under the Act or the 1934 Act applicable to the Company
and relating to action or inaction required of the Company in connection with
any such registration; and will reimburse each such Holder, such underwriter, or
such controlling person for any legal or other expenses reasonably incurred by
them in connection with investigating or
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defending any such loss, claim, damage, liability or action; provided, however,
that the indemnity agreement contained in this Section 7(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
to the extent that it arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in connection with
such Registration Statement, preliminary prospectus, final prospectus, or
amendments or supplements thereto, in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by any such Holder, underwriter or controlling person.
(b) To the extent not prohibited by law, each Holder requesting or
joining in a registration will severally and not jointly indemnify and hold
harmless the Company, each of its directors, each of its officers who have
signed the Registration Statement, and each person, if any, who controls the
Company (within the meaning of the Act or the 0000 Xxx) against any losses,
claims, damages or liabilities, joint or several, to which the Company or any
such director, officer, controlling person, agent or underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
such Registration Statement, including any preliminary prospectus or final
prospectus, or any amendments or supplements 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 such registration statement, preliminary or final prospectus, or amendments
or supplements thereto, in reliance upon and in conformity with written
information furnished by such Holder expressly for use in connection with such
registration; and each such Holder will reimburse any legal or other expenses
reasonably incurred by the Company or any such director, officer, controlling
person, agent or underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this Section 7(b) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or action if such
settlement is affected without the consent of such Holder (which consent shall
not be unreasonably withheld).
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party under this
Section, notify the indemnifying party in writing of the commencement thereof
and (unless the interest of the indemnifying party conflicts with that of the
indemnified party) the indemnifying party shall have the right to participate at
its own expense in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed, to assume the
defense thereof with counsel mutually satisfactory to the parties. The omission
so to notify the indemnifying party as provided herein will not relieve the
indemnifying party of any liability that he may have to any indemnified party
under this Section, except to the extent such failure to notify an indemnifying
party actually prejudices his ability to defend such action.
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(d) In order to provide for just and equitable contribution to joint
liability under the Act in any case in which either (i) any party entitled to
indemnification under this Agreement makes a claim for indemnification pursuant
to this Section 7 but it is judicially determined (by the entry of a final
judgment or decree by a court of competent jurisdiction and the expiration of
time to appeal or the denial of the last right of appeal) that such
indemnification cannot be enforced in such case notwithstanding the fact that
this Section 7 provides for indemnification in such case, or (ii) contribution
under the Act may be required on the part of any party in circumstances for
which indemnification is provided under this Section 7; then, and in each such
case, the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such loss, liability, claim, damage, or expense in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and the indemnified party on the other in connection with
statements or omissions that resulted in such loss, liability, claim, damage or
expense as well as any other relevant equitable considerations. The relative
fault of the indemnifying party and of the indemnified party 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 (or omitted to be supplied) by the
indemnifying party or the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission; provided, however, that, in any such case, (A) no such
Holder will be required to contribute any amount in excess of the net proceeds
of all such Registrable Securities sold by it pursuant to such registration
statement; and (B) no person or entity guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) will be entitled to
contribution from any person or entity who was not guilty of such fraudulent
misrepresentation.
7. Reports Under Securities Exchange Act of 1934. The Company agrees to
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use its best efforts to make and keep public information available, as those
terms are understood and defined in Rule 144, at all times from the date on
which sales may first be made by the Holders under Rule 144 so long as the
Holders shall hold Registrable Securities.
8. Lockup Agreement. In consideration for the Company agreeing to its
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obligations under this Agreement, in the event that each of the directors and
executive officers of the Company, Xxxx X. Xxxxx and the members of the
immediate family of Xxxx X. Xxxxx execute an agreement not to sell, make any
short sale of, loan, grant any option for the purchase of or otherwise dispose
of any Common Stock of the Company of which they are the beneficial owners
(other than (a) those included in the registration and (b) sale transactions not
involving a public offering, provided that the transferee of such person as a
condition thereto and in connection therewith, agrees to be bound by such
restriction), without the prior written consent of the Company or such
underwriters, as the case may be, for such period of time not to exceed 120 days
from the effective date of such registration as the Company or the underwriters
may specify, each Holder shall agree in connection with any registration of the
Company's securities for sale by the Company to the general public, upon the
request of the Company or the underwriters managing any underwritten offering of
the Company's securities, on the same terms not to sell, make any short sale of,
loan, grant any option for the purchase of, or otherwise dispose of any
Registrable Securities (other than (a) those included in the registration and
(b) sale
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transactions not involving a public offering, provided that the transferee of
such Holder as a condition thereto and in connection therewith, agrees to be
bound by and joins into this Section 8), without the prior written consent of
the Company or such underwriters, as the case may be, for such period of time
not to exceed 120 days from the effective date of such registration as the
Company or the underwriters may specify; provided, however, that such
restrictions on sales by Holders shall not apply if a request for registration
has been made by Holders prior to the receipt of a notice from the Company or
its underwriters under this Section 8. During any period that sales of
Registrable Securities by the Holder are restricted under this Section, at the
Holder's request, the Company will give written notice to the Holder as soon as
the restrictions on sale terminate. The Company hereby agrees to give Holder
among other things written notice of the filing of a registration statement for
a proposed underwritten offering to which the restrictions in this Section 8
could apply if so requested.
9. Transfer of Registration Rights. The registration rights of the
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Holders under Section 2 may be not transferred except to a wholly-owned
subsidiary of Tele-Communications, Inc. ("TCI Parent") or any successor to TCI
Parent by merger, consolidation or otherwise, provided that any such transferee
agrees in writing to be bound by the terms of and joins in this Agreement as a
Holder in all respects hereunder. The Company shall be given written notice by
the Holder at the time of such transfer stating the name and address of the
transferee and identifying the securities with respect to which the rights under
this Agreement are being assigned. This Agreement shall inure to the benefit of
and be binding on the successors and assigns of the Company, and of the Holders
hereto which successors and assigns are permitted to become Holders under this
Section 9.
10. No Piggyback Registrations. The Company hereby covenants and agrees
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with TCI that it will not permit any holder or prospective holder of its
securities to register such securities on any Registration Statement filed
pursuant to this Agreement.
11. Entire Agreement. This Agreement and the documents referred to herein
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constitute the entire agreement among the parties with respect to the subject
matter hereof and supersedes all prior agreements and negotiations relating
thereto.
12. Governing Law. This Agreement, together with the rights and
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obligations of the parties hereunder shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware without regard to
any jurisdiction's conflicts of laws provisions.
13. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
14. Titles and Subtitles. The titles and subtitles used in this Agreement
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are for convenience only and are not to be considered in construing or
interpreting this Agreement.
15. Notices. Any notice, request or other communication required or
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permitted under this Agreement shall be given in writing and shall be deemed to
be effectively given upon
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(i) personal delivery, (ii) delivery by U.S. Express Mail or other overnight
courier service which provides evidence of delivery, (iii) facsimile
transmission confirmed through an electronic confirmation report received at the
sending machine, or (iv) the expiration of three (3) days following deposit with
the United States Postal Service, by registered or certified mail, postage
prepaid, addressed, in each case, as follows:
If to the Company:
Adelphia Communications Corporation
Attn: Xxxxxxx X. Xxxxx
Main at Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxx Xxxxxx, Esq.
Adelphia Communications Corporation
Main at Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and an additional copy to:
Xxxxxxxx Xxxxxxxxx Professional Corporation
One Oxford Centre
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to TCI:
TCI Development Corporation
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Terrace Tower Two
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0000 XXX Xxxxxxx
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Xxxxxxxxx, XX 00000
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Attn: Xxxxxxx Xxxxxxxxxx
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Telecopy: (000) 000-0000
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With a copy to:
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Xxxxxxx & Xxxxxx L.L.C.
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000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
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Xxxxxx, XX 00000
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Attn: Xxxxx Xxxxxx
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Telecopy: (000) 000-0000
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or at such other address as any party may designate by ten (10) days advance
written notice to the other party in accordance with the provisions of this
Paragraph.
16. Amendments. This Agreement may not be amended without the written
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consent of the Company and the Holders of at least a majority in interest of the
then outstanding Registrable Securities held by all Holders.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed by a duly authorized representative as of the day first above written.
COMPANY:
ADELPHIA COMMUNICATIONS CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Executive Vice President
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TCI:
TCI DEVELOPMENT CORPORATION
By: /s/ Xxxxxxx Xxxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxxx
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Title:___________________________
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