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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
Adelphia Communications Corporation
(Name of Issuer)
Class A Common Stock, par value $.01 per share
(Title of Class of Securities)
006848105
(CUSIP Number)
Dennis P. Coyle, Esq.
General Counsel and Secretary
FPL Group, Inc.
700 Universe Boulevard
Juno Beach, Florida 33408
(407)694-4644
_____________________________________________________________________
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
February 28, 1995
_____________________________________________________________________
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D,
and is filing this schedule because of Rule 13d-1(b)(3) or (4), check
the following box / /.
Check the following box if a fee is being paid with the statement
/X/. (A fee is not required only if the reporting person: (1) has a
previous statement on file reporting beneficial ownership of more
than five percent of the class of securities described in Item 1; and
(2) has filed no amendment subsequent thereto reporting beneficial
ownership of five percent or less of such class.) (See Rule 13d-7).
Note: Six copies of this statement, including all exhibits, should
be filed with the Commission. See Rule 13d-1(a) for other parties to
whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject
class of securities, and for any subsequent amendment containing
information which would alter disclosures provided in a prior cover
page.
The information required on the remainder of this cover page shall
not be deemed to be "filed" for the purpose of Section 18 of the
Securities Exchange Act of 1934 ("Act") or otherwise subject to the
liabilities of that section of the Act but shall be subject to all
other provisions of the Act (however, see the Notes).
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SCHEDULE 13D
CUSIP NO. 006848105 Page 2 of 11 Pages
_____________________________________________________________________
1. Name of reporting person
S.S. or I.R.S. Identification No. of above person
Telesat Cablevision, Inc.
I.R.S. Identification #: Not Required
_____________________________________________________________________
2. Check the appropriate box if a member of a group*
(a) /x/
(b) / /
_____________________________________________________________________
3. SEC Use Only
_____________________________________________________________________
4. Source of Funds*
Affiliate
_____________________________________________________________________
5. Check Box if Disclosure of Legal Proceedings is
Required Pursuant to Items 2(d) or 2(e) / /
_____________________________________________________________________
6. Citizenship or Place of Organization
Florida
_____________________________________________________________________
Number of 7. Sole Voting Power
Shares -0-
Beneficially 8. Shared Voting Power
Owned By 1,000,000
Each 9. Sole Dispositive Power
Reporting -0-
Person With 10. Shared Dispositive Power
1,000,000
11. Aggregate Amount Beneficially Owned by Each Reporting Person
1,000,000
_____________________________________________________________________
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain
Shares*
/ /
_____________________________________________________________________
13. Percent of Class Represented by Amount in Row (11)
6.7%
_____________________________________________________________________
14. Type of Reporting Person*
CO
_____________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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SCHEDULE 13D
CUSIP NO. 006848105 Page 3 of 11 Pages
_____________________________________________________________________
1. Name of reporting person
S.S. or I.R.S. Identification No. of above person
FPL Group Capital Inc
I.R.S. Identification #: Not Required
_____________________________________________________________________
2. Check the appropriate box if a member of a group*
(a) /x/
(b) / /
_____________________________________________________________________
3. SEC Use Only
_____________________________________________________________________
4. Source of Funds*
WC
_____________________________________________________________________
5. Check Box if Disclosure of Legal Proceedings is
Required Pursuant to Items 2(d) or 2(e) / /
_____________________________________________________________________
6. Citizenship or Place of Organization
Florida
_____________________________________________________________________
Number of 7. Sole Voting Power
Shares -0-
Beneficially 8. Shared Voting Power
Owned By 1,000,000
Each 9. Sole Dispositive Power
Reporting -0-
Person With 10. Shared Dispositive Power
1,000,000
11. Aggregate Amount Beneficially Owned by Each Reporting Person
1,000,000
_____________________________________________________________________
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain
Shares* __
/ /
13. Percent of Class Represented by Amount in Row (11)
6.7%
_____________________________________________________________________
14. Type of Reporting Person*
CO
_____________________________________________________________________
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
SCHEDULE 13D
CUSIP NO. 006848105 Page 4 of 11 Pages
_____________________________________________________________________
1. Name of reporting person
S.S. or I.R.S. Identification No. of above person
FPL Group, Inc.
I.R.S. Identification #: Not Required
_____________________________________________________________________
2. Check the appropriate box if a member of a group*
(a) /x/
(b) / /
_____________________________________________________________________
3. SEC Use Only
_____________________________________________________________________
4. Source of Funds*
Affiliate
_____________________________________________________________________
5. Check Box if Disclosure of Legal Proceedings is
Required Pursuant to Items 2(d) or 2(e) / /
_____________________________________________________________________
6. Citizenship or Place of Organization
Florida
_____________________________________________________________________
Number of 7. Sole Voting Power
Shares -0-
Beneficially 8. Shared Voting Power
Owned By 1,000,000
Each 9. Sole Dispositive Power
Reporting -0-
Person With 10. Shared Dispositive Power
1,000,000
11. Aggregate Amount Beneficially Owned by Each Reporting Person
1,000,000
_____________________________________________________________________
12. Check Box if the Aggregate Amount in Row (11) Excludes Certain
Shares*
/ /
_____________________________________________________________________
13. Percent of Class Represented by Amount in Row (11)
6.7%
_____________________________________________________________________
14. Type of Reporting Person*
CO
_____________________________________________________________________
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Item 1. Security and Issuer.
The class of securities to which this statement relates is the Class
A Common Stock, par value $.01 per share (the "Common Stock"), of
Adelphia Communications Corporation, a Delaware corporation (the
"Company"). The address of the principal executive offices of the
Company is 5 West Third Street, P.O. Box 472, Coudersport, PA 16915.
Item 2. Identity and Background.
This statement is filed jointly by Telesat Cablevision, Inc.
( Telesat ), FPL Group Capital Inc ( Group Capital ) and FPL Group,
Inc. ( FPL Group ). FPL Group, a Florida corporation incorporated in
1984, is a public utility holding company (as defined in the Public
Utility Holding Company Act of 1935, as amended) that is engaged,
through its subsidiaries, in utility and other operations. Utility
operations are conducted through Florida Power & Light Company, which
is engaged in the generation, transmission, distribution and sale of
electric energy.
Group Capital, a Florida corporation incorporated in 1985 and a
wholly-owned subsidiary of FPL Group, holds the capital stock and
provides funding for the operations of FPL Group s subsidiaries other
than Florida Power & Light Company. Group Capital s business
activities include investments in non-utility energy projects through
ESI Energy, Inc. and agricultural operations through Turner Foods
Corporation.
Telesat, a Florida corporation and wholly-owned subsidiary of Group
Capital, holds interests in entities which provide franchised and/or
private cable television service.
Each of Telesat, Group Capital and FPL Group may be hereinafter
referred to individually as a Reporting Person or collectively as
the Reporting Persons. A joint filing agreement among the
Reporting Persons is filed as Exhibit 1 hereto.
The principal executive offices of FPL Group and Group Capital are
located at 700 Universe Boulevard, Juno Beach, Florida 33408. The
principal executive offices of Telesat are located as 1400 Centrepark
Boulevard, Suite 600, West Palm Beach, FL 33401.
The names, present principal occupation or employment and the name,
principal business and address of any corporation or other
organization in which such employment is conducted of all executive
officers and directors of each of the Reporting Persons are listed on
Schedule 1 hereto. All executive officers and directors or each
Reporting Person are citizens of the United States.
During the last five years, no Reporting Person, nor any executive
officer or director thereof, has been convicted in a criminal
proceeding (excluding traffic violations and other minor offenses),
nor has been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or finding
any violations with respect to such laws.
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Item 3. Source and Amount of Funds.
Telesat entered into an Investment Agreement with the Company and
certain of its affiliates, and for limited purposes, certain
shareholders of the Company (the Rigas Shareholders), dated
February 28, 1995 (the Investment Agreement) pursuant to which, in
connection with the contribution by Telesat of certain cable
television assets to a joint venture partnership with a subsidiary of
the Company, Telesat acquired 1,000,000 shares of the Common Stock
(the Shares) in exchange for $15,000,000, which funds were obtained
from a capital contribution from Group Capital to Telesat.
In the Investment Agreement, the Rigas Shareholders have agreed that,
in any and all elections of directors of the Company, they will vote
a sufficient number of shares of Common Stock owned by them to elect
one individual nominated by Telesat to the board of directors of the
Company. Under certain circumstances, including a sale by Telesat of
any or all of the Shares, Telesat will forfeit this nomination right.
Relevant portions of the Investment Agreement are attached hereto as
Exhibit 2 and incorporated herein by reference.
In connection with the execution of the Investment Agreement, the
Company and Telesat entered into a Subscription Agreement for the
purchase of the Shares as well as a Registration Rights Agreement,
both dated as of February 28, 1995 (the Execution Date ) which are
attached hereto as Exhibits 3 and 4, respectively and incorporated
herein by reference. The Registration Rights Agreement obligates the
Company, within three months following the Execution Date, to
commence filing a registration statement registering the Shares, and
any capital stock of the Company issued as a dividend or other
distribution with respect to the Shares, under the Securities Act of
1933, as amended (the Securities Act ), and to keep the registration
statement effective until the second anniversary of the Execution
Date. After the two year period, Telesat may request that the
Company file a Securities Act registration statement and keep it
effective for a period of one additional year.
In addition, the Registration Rights Agreement gives Telesat
piggyback registration rights which enable it to require that the
Company register the Shares under the Securities Act if the Company
is otherwise registering other shares of the Common Stock. These
registration rights exist for a period commencing three months after
the Execution Date and terminating twenty-four months thereafter.
Item 4. Purpose of the Transaction.
The Shares will be held for investment purposes and not for the
purpose or in connection with any transaction having the purpose of
changing the control of the Company, and, other than as disclosed
under Item 3, no Reporting Person has any present intention to effect
any of the transactions enumerated in clauses (a) through (j) of Item
4 of Schedule 13D.
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Item 5. Interest in Securities of the Issuer.
As of the date hereof, the Reporting Persons, by virtue of Rule 13d-3
under the Securities Exchange Act of 1934, as amended, may be deemed
to share voting and dispositive power with each other over 1,000,000
Shares (approximately 6.7% of the total number of shares of Common
Stock outstanding on the date hereof).
The percentage expressed herein is based upon the number of
outstanding shares of Common Stock of the Company as disclosed in the
Form 10-Q for the quarter ended December 31, 1994 of the Company,
which is the most recently available filing by the Company with the
Securities and Exchange Commission.
Other than as described under Item 3 and Item 6, no Reporting Person
has engaged in any transaction in the Common Stock of the Company
within sixty days of the date hereof.
Item 6. Contracts, Arrangements, Understandings or Relationships
with Respect to Securities of the Issuer.
Telesat owns a 20% interest in a partnership which has agreed to sell
certain cable television assets to an affiliate of the Company, and
the affiliate of the Company has the option to pay a portion of the
purchase price thereof in the form of shares of Company Common Stock.
The transaction is subject to satisfaction of certain conditions
precedent, and no Reporting Person has beneficial ownership of shares
of Common Stock by virtue thereof at this time.
Other than described under Item 3 and above, no Reporting Person has
any other contracts, arrangements, understandings or relationships
(legal or otherwise) with any person with respect to any securities
of the Company, including, but not limited to, transfer or voting of
any such securities, finder's fees, joint ventures, loan or option
arrangements, put or calls, guarantees of profits, division of
profits or loss, or the giving or withholding of proxies.
Item 7. Material to be Filed as Exhibits.
Exhibit 1: Joint Filing Agreement
Exhibit 2: Investment Agreement
Exhibit 3: Subscription Agreement
Exhibit 4: Registration Rights Agreement
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SCHEDULE 1
Directors and Executive Officers of Telesat
Leslie J. Gelber - Director and Chairman of the Board
Harry P. Cushing - Director and President and Chief Executive
Officer
Richard M. Schorr - Vice President and Controller
Dilek L. Samil - Treasurer
Dennis P. Coyle - Director and Secretary
Directors and Executive Officers of Group Capital
James L. Broadhead - Director and President and Chief Executive
Officer
Paul J. Evanson - Director and Vice President and Chief Financial
Officer
Dilek L. Samil - Director and Vice President, Treasurer & Assistant
Secretary
Leslie J. Gelber - Vice President
K. Michael Davis - Controller and Chief Accounting Officer
Dennis P. Coyle - Secretary
Solomon L. Stamm - Assistant Controller
Paul R. Sutherland - Assistant Treasurer and Assistant Secretary
Directors and Executive Officers of FPL Group
James L. Broadhead - Director and Chairman of the Board, President
and Chief Executive Officer
Dennis P. Coyle - General Counsel and Secretary
Paul J. Evanson - Director and Vice President Finance, and Chief
Financial Officer
Dilek L. Samil - Treasurer
K. Michael Davis - Controller and Chief Accounting Officer
Lawrence J. Kelleher - Vice President, Human Resources
H. Jesse Arnelle - Senior Partner at law firm of
Arnelle, Hastie, McGee,
Willis & Greene, One Market
Street, Spear Street Tower,
39th Floor, San, Francisco,
California 94105.
Robert M. Beall, II - Chairman and Chief Executive
Officer of Beall s Inc., the
parent company of Beall s
Department Stores, Inc., and
Beall s Outlet Stores, Inc.,
which operate retail stores
locate primarily in Florida.
Business address is Post
Office Box N, Bradenton,
Florida 34206
David Blumberg - Chairman and President of
Blumberg Group, Inc., a real
estate development,
investment and consulting
firm. Business address is 255
Alhambra Circle, Suite 760,
Coral Gables, Florida 33134.
J. Hyatt Brown - Chairman, President and Chief
Executive Officer of Poe &
Brown, Inc., an insurance
broker based in Daytona Beach
and Tampa, Florida. Business
address is P.O. Drawer 2412,
Daytona Beach, Florida 32115.
Armando M. Codina - Chairman and Chief Executive
Officer of Codina Group,
Inc., a Miami, Florida-based
real estate development
company. Business address is
Two Alhambra Plaza, Penthouse
II, Coral Gables, Florida
33134.
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Marshall M. Criser - Chairman of the Jacksonville,
Florida, law firm of Mahony
Adams & Criser, P.A.
Business address is P.O. Box
4099, Jacksonville, Florida
32201.
B.F. Dolan - Retired. Address is Two
First Union Center, 301 S.
Tryon Street, Suite 1990,
Charlotte, North Carolina
28282
Willard D. Dover - Member of Fort Lauderdale,
Florida law firm of Fleming,
O Bryan & Fleming, P.A.
Business address is Broward
Financial Center, 500 East
Broward Blvd., Fort
Lauderdale, Florida 33394.
Drew Lewis - Chairman and Chief Executive
Officer of Union Pacific
Corporation, a transportation
and natural resources
company. Business address is
Martin Tower, Eighth and
Eaton Avenues, Bethlehem,
Pennsylvania 18018.
Frederic V. Malek - Chairman of Thayer Capital
Partners, a merchant bank.
Business address is 901 15th
Street, N.W., Suite 300,
Washington, D.C. 20005.
Paul R. Tregurtha - Chairman and Chief Executive
Officer of Mormac Marine
Group, Inc., a maritime
shipping company. Business
address is Three Landmark
Square,
Stamford, Connecticut 06901.
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EXHIBIT INDEX
Exhibit No. Title Page
Exhibit 1: Joint Filing Agreement 12
Exhibit 2: Investment Agreement 13
Exhibit 3: Subscription Agreement 16
Exhibit 4: Registration Rights Agreement 19
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SIGNATURES
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set forth in
this statement is true, complete and correct.
Dated: March 10, 1995 FPL Group, Inc.
MICHAEL W. YACKIRA
Name: Michael W. Yackira
Title: Vice President, Finance, and
Chief Financial Officer
Dated: March 10, 1995 FPL Group Capital Inc
PAUL J. EVANSON
Name: Paul J. Evanson
Title: Vice President and Chief
Financial Officer
Dated: March 10, 1995 Telesat Cablevision, Inc.
LESLIE J. GELBER
Name: Leslie J. Gelber
Title: Chairman of the Board
EXHIBIT 1
JOINT FILING AGREEMENT
Be it known that the undersigned hereby agree to file jointly a Schedule
13D, including amendments thereto, reporting beneficial ownership of the
Class A Common Stock, par value $.01 per share, of Adelphia
Communications Corporation.
Dated: March 10, 1995 FPL Group, Inc.
MICHAEL W. YACKIRA
Name: Michael W. Yackira
Title: Vice President, Finance, and
Chief Financial Officer
Dated: March 10, 1995 FPL Group Capital Inc
PAUL J. EVANSON
Name: Paul J. Evanson
Title: Vice President and Chief
Financial Officer
Dated: March 10, 1995 Telesat Cablevision, Inc.
LESLIE J. GELBER
Name: Leslie J. Gelber
Title: Chairman of the Board
EXHIBIT 2
INVESTMENT AGREEMENT
THIS AGREEMENT, made this 28th day of February,
1995, by and among Telesat Cablevision, Inc., a Florida corporation
("Telesat"), Cable LP III, Inc., a Florida corporation ("LP III"), Cable GP,
Inc., a Florida corporation ("Cable GP") (Telesat, LP III and Cable GP
are hereinafter collectively referred to as the "Telesat Entities"), Adelphia
Communications Corporation, a Delaware corporation ("Adelphia"),
Olympus Communications, L.P., a Delaware limited partnership (the
"Partnership"), ACP Holdings, Inc., a Delaware corporation ("ACP"), and,
solely with respect to Section 2.02 hereof, those shareholders of
Adelphia listed on the signature pages hereto (the "Rigas
Shareholders").
SECTION 2. PURCHASE OF ADELPHIA COMMON STOCK; BOARD
REPRESENTATION.
2.01 Purchase of Adelphia Common Stock. At
the Closing on the Closing Date, Telesat or its Affiliate shall purchase
from Adelphia and Adelphia shall issue to Telesat, One Million
(1,000,000) shares of Adelphia Common Stock at a price per share of
Fifteen Dollars ($15.00) for an aggregate purchase price of Fifteen
Million Dollars ($15,000,000). Concurrent with the execution of this
Agreement, Telesat (or its Affiliate) and Adelphia are entering into (i) a
Subscription Agreement relating to the purchase of the Adelphia
Common Stock hereunder in the form attached hereto as Exhibit C and
(ii) a Registration Rights Agreement relating to certain rights of Telesat
to cause Adelphia to register such stock under the Securities Act of 1933
in the form attached hereto as Exhibit D.
2.02 Board Representation. Upon the
completion of the purchase of the One Million (1,000,000) shares of
Adelphia Common Stock by Telesat hereunder and the issuance of the
Telesat Partnership Interest, the Rigas Shareholders agree that they
shall, at any and all meetings of the stockholders of Adelphia thereafter
at which directors will be elected, commencing with the first regularly
scheduled annual shareholders' meeting after the Closing Date, vote a
sufficient number of shares of Adelphia Common Stock owned by them
to elect one nominee of Telesat to the board of directors of Adelphia.
Prior to such meeting, Adelphia shall deliver to L.J. Gelber all information
provided to directors at the time such information is provided to the
directors. Within ten (10) days after Telesat has been given notice of
the scheduling of any meeting of the stockholders of Adelphia at which
directors are to be elected, Telesat shall notify the Rigas Shareholders in
writing of its nominee for election as a director of Adelphia which
nominee shall be L.J. Gelber or any other individual who consents to
such nomination, provided that any such other nominee shall be
reasonably acceptable to the Rigas Shareholders. In the absence of any
such notification, it shall be presumed that Telesat's then nominee shall
have been redesignated as its nominee. In the event that any Telesat
nominee shall cease to serve as a director of Adelphia for any reason,
Telesat shall have the right to appoint a successor nominee, subject to
the terms of the second preceding sentence. The Rigas Shareholders
shall vote a sufficient number of shares of Adelphia Common Stock to
ensure that such successor nominee is duly elected to Adelphia's board
of directors. This Section 2.02 and all of the agreements and obligations
of the parties under this Section 2.02 shall terminate and be of no further
force and effect (i) if the Telesat Entities and their Affiliates hold in the
aggregate less than a 10% economic interest in the Partnership, or (ii) if
Telesat and its Affiliates at any time hold in the aggregate less than One
Million (1,000,000) shares of Adelphia Common Stock (other than solely
as a result of a reverse stock split).
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IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be executed by their duly authorized corporate
officers on the day and year first above written.
ADELPHIA COMMUNICATIONS CORPORATION
By: /s/ Timothy Rigas
Name: Timothy Rigas
Title: Sr. Vice President
ACP HOLDINGS, INC.
By: /s/ Timothy Rigas
Name: Timothy Rigas
Title: Vice President
OLYMPUS COMMUNICATIONS, L.P.
By: ACP HOLDINGS, INC
Managing General Partner
By: /s/ Timothy Rigas
Name: Timothy Rigas
Title: Vice President
TELESAT CABLEVISION, INC.
By: /s/ L. J. Gelber
L.J. Gelber
Chairman
CABLE LP III, INC.
By: /s/ L. J. Gelber
L.J. Gelber
President
CABLE GP, INC.
By: /s/ L. J. Gelber
L.J. Gelber
President
SOLELY WITH RESPECT TO
SECTION 2.02 HEREOF:
/s/ John J. Rigas
John J. Rigas
/s/ Michael J. Rigas
Michael J. Rigas
/s/ Timothy J. Rigas
Timothy J. Rigas
/s/ James P. Rigas
James P. Rigas
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INVESTMENT AGREEMENT
BY AND AMONG
TELESAT CABLEVISION, INC., CABLE GP, INC., CABLE LP III, INC.,
ADELPHIA COMMUNICATIONS CORPORATION,
ACP HOLDINGS, INC.
CERTAIN SHAREHOLDERS OF
ADELPHIA COMMUNICATIONS CORPORATION
AND
OLYMPUS COMMUNICATIONS, L.P.
EXHIBIT 3
SUBSCRIPTION AGREEMENT
____________________________________
ADELPHIA COMMUNICATIONS CORPORATION
____________________________________
Class A Common Stock,
par value $.01 per share,
of
Adelphia Communications Corporation
____________________________________
To: Adelphia Communications Corporation
This Subscription Agreement is made
between Adelphia Communications Corporation, a Delaware corporation
(the "Company"), and Telesat Cablevision, Inc., a Florida corporation
(the "Purchaser"), which intends to purchase shares (the "Shares") of the
Company's Class A Common Stock, par value $.01 per share (the
"Common Stock"), pursuant to that Investment Agreement between the
Purchaser and you (the "Investment Agreement"). This subscription is
submitted to you in accordance with and subject to the terms and
conditions described in this Subscription Agreement and the Investment
Agreement regarding the offering (the "Offering") of the Shares.
In consideration of the Company's
agreement to sell the Shares to the Purchaser and the Purchaser's
agreement to buy the Shares upon the terms and conditions in the
Investment Agreement and herein, the parties hereto agree as follows:
A. REPRESENTATIONS AND WARRANTIES.
The Purchaser hereby represents and warrants to, and
agrees with, the Company as follows:
1. The Purchaser has been furnished with, and has
carefully read, the information regarding the
Company previously provided, including the
Company's Annual Report on Form 10-K for the
fiscal year ended March 31, 1994, the Company's
Quarterly Report on Form 10-Q for the fiscal quarter
ended December 31, 1994, the Company's Proxy
Statement dated August 22, 1994, the Company's
1994 Annual Report to Stockholders, the
Company's Prospectus for its offering of 9 1//2%
Senior Pay-In-Kind Notes Due 2004, Series B
(including the Risk Factors contained therein
regarding an investment in the Company generally),
and the Registration Rights Agreement being
entered into in connection herewith, and is familiar
with and understands the terms of the Offering.
Except for representations of the Company set forth
in the Investment Agreement, with respect to tax
and other economic considerations involved in this
investment, the Purchaser is not relying on the
Company (or any agent or representative of the
Company). The Purchaser has carefully considered
and has, to the extent the Purchaser believes such
discussion necessary, discussed with the
Purchaser's professional legal, tax, accounting and
financial advisors the suitability of an investment in
the Shares for the Purchaser's particular tax and
financial situation and has determined that the
Shares are a suitable investment for the Purchaser.
2. The Purchaser acknowledges that all documents,
records and books pertaining to this investment
which the Purchaser has reasonably requested
have been made available for inspection by the
Purchaser, and its adviser(s).
3. The Purchaser and its adviser(s) have had a
reasonable opportunity to ask questions of and
receive answers from a person or persons acting on
behalf of the Company concerning the Offering and
all such questions have been answered to their full
satisfaction.
4. The Purchaser is not subscribing for Shares as a
result of, or subsequent to, any advertisement,
article, notice or other communication published in
any newspaper, magazine or similar medium or
broadcast over television or radio or presented at
any seminar or meeting.
5. The Purchaser, by reason of its business or
financial experience or the business or financial
experience of its advisers, can be reasonably
assumed to have the capacity to protect its
interests in connection with the investment in the
Shares.
6. The Purchaser is able to bear the substantial
economic risks of an investment in the Shares for
an indefinite period of time, has no need for liquidity
in such investment (except as permitted herein)
and, at the present time, could afford a complete
loss of such investment.
7. The Purchaser has such knowledge and experience
in financial, tax and business matters so as to
enable it to utilize the information made available in
connection with the Offering to evaluate the merits
and risks of an
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investment in the Shares and to make an informed
investment decision with respect thereto.
8. The Purchaser acknowledges that the issuance of
the Shares by the Company to the Purchaser has
not been registered under the Securities Act or any
state securities law. The Purchaser will not sell or
otherwise transfer the Shares without registration
under the Securities Act of 1933, as amended (the
"Securities Act"), or applicable state securities laws
or an exemption therefrom. The Purchaser
represents that the undersigned is purchasing the
Shares for the Purchaser's own account, for
investment and not with a view to resale or
distribution except in compliance with the Securities
Act. The Purchaser has not offered or sold any
portion of the Shares being acquired nor does the
Purchaser have any present intention of dividing
such Shares with others or of selling, distributing or
otherwise disposing of any portion of such Shares
either currently or after the passage of a fixed or
determinable period of time or upon the occurrence
or non-occurrence of any predetermined event or
circumstance. Except as provided in the
Registration Rights Agreement, the Company has
no obligation to register the Shares subscribed for
hereunder.
9. The Purchaser recognizes that investment in the
Shares involves substantial risks, including loss of
the entire amount of such investment.
10. The Purchaser acknowledges that each certificate
representing the Shares shall be stamped or
otherwise imprinted with legends substantially in the
following form:
THE SECURITIES REPRESENTED HEREBY HAVE
NOT BEEN REGISTERED UNDER THE FEDERAL
OR STATE SECURITIES LAWS AND MAY NOT BE
OFFERED FOR SALE, SOLD OR OTHERWISE
TRANSFERRED OR ASSIGNED FOR VALUE,
DIRECTLY OR INDIRECTLY, NOR MAY THE
SECURITIES BE TRANSFERRED ON THE BOOKS
OF THE CORPORATION, WITHOUT
REGISTRATION OF SUCH SECURITIES UNDER
ALL APPLICABLE FEDERAL OR STATE
SECURITIES LAWS OR COMPLIANCE WITH AN
APPLICABLE EXEMPTION THEREFROM, SUCH
COMPLIANCE, AT THE OPTION OF THE
CORPORATION, TO BE EVIDENCED BY AN
OPINION OF COUNSEL, IN FORM REASONABLY
ACCEPTABLE TO THE CORPORATION, THAT NO
VIOLATION OF SUCH REGISTRATION
PROVISIONS WOULD RESULT FROM ANY
PROPOSED TRANSFER OR ASSIGNMENT.
and
THE SECURITIES REPRESENTED HEREBY ARE
SUBJECT TO CERTAIN RESTRICTIONS ON
TRANSFER AS SET FORTH IN A REGISTRATION
RIGHTS AGREEMENT OR A DEFINITIVE
SUBSCRIPTION AGREEMENT, A COPY OF WHICH
MAY BE OBTAINED FROM THE CORPORATION.
11. The Purchaser: (a) has the full legal right and power and all
authority and approval required (i) to execute and deliver, or
authorize execution and delivery of, this Subscription
Agreement and all other instruments (including, without
limitation, the Registration Rights Agreement) executed and
delivered by or on behalf of the Purchaser in connection with
the purchase of the Shares; and (ii) to purchase and hold the
Shares; and (b) affirms that the signature of the party signing
on behalf of the Purchaser is binding upon the Purchaser.
12. The Purchaser is qualified as an accredited investor within
the meaning of Rule 501(a) of Regulation D promulgated
under the Securities Act ("Regulation D").
B. UNDERSTANDINGS.
The Purchaser understands, acknowledges and agrees with the
Company as follows:
1. No federal or state agency has made any finding or
determination as to the fairness of the terms of this Offering
for investment nor any recommendation or endorsement of
the Shares.
2. The Offering is intended to be exempt from registration under
the Securities Act by virtue of Section 4(2) of the Securities
Act and the provisions of Regulation D thereunder, which
exemptions are in part dependent upon the truth,
completeness and accuracy of the statements made by the
Purchaser herein.
C. MISCELLANEOUS.
1. Capitalized terms used in this Subscription Agreement, if not
otherwise defined herein, shall have the respective meanings
attributed to such terms in the Investment Agreement. All
pronouns and any variations thereof used herein shall be
deemed to refer to the masculine, feminine, impersonal,
singular or plural, as the identity of the person or persons
may require.
2. Neither this Subscription Agreement nor any provision hereof
shall be waived, modified, changed, discharged, terminated,
revoked or cancelled, except by an instrument in writing
signed by the party effecting the same against whom any
change, discharge or termination is sought.
3. Notices required or permitted to be given hereunder shall be
given in accordance with the terms of the Investment
Agreement.
4. Failure of the Company to exercise any right or remedy under
this Subscription Agreement or delay by the Company in
exercising such right or remedy will not operate as a waiver
thereof. No waiver by the Company
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will be effective unless and until it is in writing and signed by
the Company.
5. This Subscription Agreement shall be enforced, governed and
construed in all respects in accordance with the laws of the
Commonwealth of Pennsylvania, without regard to its conflicts
or choice of law provisions.
6. This Subscription Agreement shall be binding upon the
Purchaser, the Purchaser's successors and assigns and
subsequent holders of the Shares, without the need of an
express acceptance by such successor, assign or subsequent
holder, and shall inure to the benefit of the Company, its
successors and assigns; provided, however, that this
Subscription Agreement shall not be binding upon a
subsequent holder with respect to Shares acquired in a
transaction registered under the Securities Act or in a
transaction in compliance with Rule 144 promulgated under
the Securities Act (or any successor rule or regulation).
7. If any provision of this Subscription Agreement is invalid or
unenforceable under any applicable statute or rule of law,
then such provision shall be deemed inoperative to the extent
that it may conflict therewith and shall be deemed modified to
conform with such statute or rule of law. Any provision hereof
that may prove invalid or unenforceable under any law shall
not affect the validity or enforceability of any other provision
hereof.
IN WITNESS WHEREOF, the parties hereto, intending to be legally
bound, have duly executed this Agreement this 28th day of February,
1995.
ATTEST: ADELPHIA COMMUNICATIONS CORPORATION
________________________ By: /s/ LeMoyne T. Zacherl
Title: Vice President
ATTEST: TELESAT CABLEVISION, INC.
________________________ By: /s/ L. J. Gelber
Title: Chairman
EXHIBIT 4
REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT, made as of this 28th
day of February, 1995 between TELESAT CABLEVISION, INC., a
Florida corporation ("Telesat" or "Holder"), and ADELPHIA
COMMUNICATIONS CORPORATION, a Delaware corporation (the
"Company").
WITNESSETH:
WHEREAS, Holder is the record and
beneficial holder of 1,000,000 shares (the "Shares") of the Company's
Class A common stock, par value $.01 per share (the "Common Stock");
WHEREAS, Holder and the Company are
among the parties to an Investment Agreement dated as of even date
herewith, 1995 (the "Investment Agreement") pursuant to which Holder
acquired the Shares;
WHEREAS, the execution and delivery of
this Agreement is a condition of the Investment Agreement; and
WHEREAS, Holder desires to have the
Shares 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:
(a) The term "Act" means the
Securities Act of 1933, as amended, or any similar federal statute, and
the rules and regulations of the Commission thereunder, all as the same
are in effect from time to time;
(b) The term "Commission" means the
Securities and Exchange Commission or any other federal agency at the
time primarily responsible for administering the Act;
(c) The term "Registrable Securities"
means (1) the Shares and (2) any capital stock of the Company or a
successor to the Company issued as a dividend or other distribution with
respect to, or in exchange for or in replacement of, the Shares, in each
case, which are held by Holder.
(d) The term "Rigas Shareholders"
means Dorellenic, Ionian Communications, L.P., Syracuse Hilton Head
Holdings, L.P., Highland Holdings, John J. Rigas, Doris N. Rigas,
Timothy J. Rigas, Michael J. Rigas, James P. Rigas, Ellen K. Rigas, 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.
2. Registration Under the Act.
(a) Within three (3) months following
the date hereof, the Company shall commence efforts to prepare and
file a registration statement on Form S-3 or another appropriate form
under the Act covering the registration of all of the Registrable Securities
then outstanding, and the Company shall then use commercially
reasonable efforts to cause such registration statement to be declared
effective under the Act and kept effective until the second anniversary of
the date of this Agreement, it being understood that such date shall be
extended to reflect any period of sales suspension pursuant to
Paragraph 2(b) or 11 or occurring as a result of an event described in
the last sentence of Paragraph 4(a) (such date as it may be extended,
the "Initial Expiration Date").
(b) Notwithstanding the foregoing, the
Company shall not be obligated to cause a registration statement to be
filed and declared effective pursuant to this Paragraph 2 or, if the
registration statement is effective, the Company may request the Holder
not to (and upon such request the Holder hereby agrees not to) make
any sales pursuant thereto, for up to two periods of sixty (60) days each
(provided that at least 60 days elapse between such 60 day periods), as
the Company shall specify, provided that the Company shall furnish to
Holder a certificate signed by the President or a Vice President of the
Company stating that in the good faith judgment of the Company it would
be detrimental to the Company or its shareholders for a registration
statement to be filed or for sales to occur under an effective registration
statement.
(c) Holder shall promptly notify the
Company in writing of any sales made pursuant to any registration
statement filed pursuant to this Agreement.
(d) Commencing on the Initial
Expiration Date, if the Company shall thereafter receive a written
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request (specifying that it is being made pursuant to this Paragraph 2(d)
from the Holder of a majority in interest of the Registrable Securities
then outstanding that the Company file a registration statement under
the Act covering the registration of all of the Registrable Securities then
outstanding, then the Company shall use commercially reasonable
efforts to file and have declared effective such registration statement
under the Act and, subject to Paragraph 4(a), kept effective for a period
of one year (the "Final Expiration Date").
3. Piggyback Registration. (a) If at any
time commencing three (3) months following the date hereof and ending
twenty-four (24) months following the date hereof, the Company
proposes to file a registration statement covering the registration of any
of its Common Stock under the Act in connection with the offering of
such securities by the Company or any of the Rigas Shareholders solely
for cash on a form (other than Form S-4 or Form S-8) that would also
permit the concurrent registration of the Registrable Securities, the
Company shall promptly give Holder written notice of such determination.
Upon the written request of Holder given within fifteen (15) business
days after mailing of any such notice by the Company, the Company
shall use reasonable commercial efforts to cause to be registered under
the Act all of the Registrable Securities that Holder has requested be
registered.
(b) Notwithstanding any other provision
of Paragraph 3, if the underwriter selected by the Company or the Rigas
Shareholders determines in good faith that factors require a limitation of
the number of shares to be underwritten, the underwriter may exclude
some or all of the Registrable Securities from such registration and
underwriting provided that any such partial exclusion shall be made on a
pro rata basis based on the number of shares of Company equity
securities registered by the requesting Holder and any other
shareholders of the Company seeking to register equity securities of the
Company pursuant to incidental or "piggy back" registration rights.
(c) In the event that any registration of
Registrable Securities pursuant to this Paragraph 3 shall be, in whole or
in part, a firm commitment underwritten offering of securities of the
Company, any request by Holder to register Registrable Securities
pursuant to Paragraph 3 must specify that such Registrable Securities
are to be included in the underwriting on the same terms and conditions
as the shares of Common Stock, if any, otherwise being sold through
underwriters under such registration.
(d) The provisions of Paragraph 2(b)
shall also apply to registration statements under this Paragraph 3.
4. Registration Procedures. Whenever
required under Paragraphs 2 or 3 to use commercially reasonable efforts
to effect the registration of any Registrable Securities, the Company
shall:
(a) Prepare and file with the
Commission a registration statement with respect to such Registrable
Securities and to cause such registration statement to become and
remain effective; provided, however, that in connection with any periods
of proposed registration under or in satisfaction of Paragraph 2, the
Company shall in no event be obligated to cause any such registration to
remain effective after the Initial Expiration Date or Final Expiration Date,
as applicable. In connection therewith, the Company shall use its best
efforts to notify Holder 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 use commercially reasonable efforts to
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; provided, that the Company shall not
be required to update, pursuant to this Paragraph 4, any such document
during a period of sales suspension referred to in paragraph 2(b),
provided further that the Company shall otherwise use its best efforts to
comply in all respects with the Securities Act of 1933, as amended, and
the Securities Exchange Act of 1934, as amended, together with all
applicable rules and regulations of the Securities and Exchange
Commission promulgated thereunder.
Holder agrees that, upon receipt of any
such notice from the Company of the happening of any event of the kind
described herein, Holder will forthwith discontinue disposition of
Registrable Securities pursuant to such registration statement until such
Holder's receipt of the copies of the supplemented or amended
prospectus, and, if so directed by the Company, Holder will deliver to the
Company (at its expense) all copies in its possession, other than
permanent file copies then in Holder's possession, of the prospectus
covering such Registrable Securities current at the time of receipt of
such notice.
(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 comply with the provisions of the Act
with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to Holder such numbers of
copies of a prospectus, including a preliminary prospectus, in conformity
with the requirements of the Act, and such other documents as Holder
may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such Holder.
(d) Use its best efforts to register and
qualify the securities covered by such registration statement under such
other securities or Blue Sky laws of such United States jurisdictions as
shall be reasonably requested by Holder for the distribution of the
securities covered by the registration statement, 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
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process in any such states or jurisdictions, and further provided that
(anything in this Agreement to the contrary notwithstanding with respect
to the bearing of expenses) if any jurisdiction in which the securities shall
be qualified shall require that expenses incurred in connection with the
qualification of the securities in that jurisdiction be borne by selling
shareholders, then such expenses shall be payable by the Holder pro
rata based upon the number of shares registered by Holder and all other
holders of equity securities of the Company seeking to register and sell
such securities pursuant to such registration statement, to the extent
required by such jurisdiction.
(e) Furnish to each Holder a signed
counterpart, addressed to all such Holders, of (i) a "cold comfort" letter
signed by the independent certified public accountants who have audited
the Company's financial statements included in the registration
statement, dated the effective date of such registration statement, and
(ii) an opinion of counsel for the Company, dated the closing date related
to the sale of Shares (in a firmly underwritten sale), covering
substantially the same matters with respect to the registration statement
and the Shares as are customarily covered in opinions of issuers'
counsel and in accountants' letters in underwritten public offerings, and
shall furnish each Holder a customary accountants' bring down letter
dated the closing date related to such sale of Shares, provided that the
obligations of the Company set forth in this Paragraph 4(e) shall only
arise if the registration statement is declared effective in the period
beginning with the filing of the Company's Form 10-K for the applicable
year and ending on the date 134 days after the fiscal year end to which
such Form 10-K relates, and during any other period, such obligations
shall arise only upon the written agreement of the Holders to pay all
reasonable legal and accounting fees incurred in obtaining such
accountants letter or opinions, as the case may be.
(f) In connection with any underwritten
offering pursuant to a registration statement filed pursuant to
Paragraph 2 hereof , the Company will enter into an underwriting
agreement reasonably necessary to effect the offer and sale of Shares
provided that such underwriting agreement contains reasonable and
customary underwriting, indemnification, contribution and other
provisions for such an offering, consistent with the past practices of the
Company.
5. Obligation to Furnish Information. It
shall be a condition precedent to the obligations of the Company to take
any action pursuant to this Agreement that Holder shall furnish to the
Company such information regarding Holder, or the Registrable
Securities held by Holder, and the intended method of disposition of
such securities, as the Company shall reasonably request or as shall be
required in connection with the action to be taken by the Company
hereunder, including but not limited to information required by Items 507
and 508 of Regulation S-K under the Act. In the event that Holder
reasonably determines to alter its method of disposition, the Company
shall prepare and file with the Commission such pre-effective or post
effective amendments or revised prospectuses (including preliminary
prospectuses) as may be reasonably necessary to permit Holder to so
dispose of Shares.
6. Expenses of Registration. All expenses
incurred in connection with a registration effected pursuant to
Paragraph 2 (excluding Holder's pro rata qualification expenses under
Paragraph 4(d), underwriters' discounts and commissions, and counsel,
advisory or consultant fees of Holder), including without limitation all
registration and qualification fees, printers' and accounting fees, and
fees and disbursements of counsel for the Company, shall be borne by
the Company. Any expenses of a registered offering under Paragraph 2
not required to be borne by the Company shall be borne pro rata based
upon the number of shares registered by Holder and all other holders of
equity securities of the Company seeking to registered and sell such
securities pursuant to such registration statement.
7. Company Registration Expenses. In the
case of any registration effected pursuant to Paragraph 3, the Company
shall bear any additional registration and qualification fees and expenses
(excluding additional underwriters' discounts and commissions), and any
additional costs and disbursements of counsel for the Company that
result from the inclusion of securities held by the Holder in such
registration. Any such additional expenses of the registration not
required to be borne by the Company shall be borne by the selling
Holder and any other stockholders participating in the registration, pro
rata on the basis of the amount of securities so registered; provided,
however, that if any such additional cost or expense is attributable solely
to Holder and does not constitute a normal cost or expense of such a
registration, such cost or expense shall be allocated to Holder. In
addition, Holder shall bear the fees and costs of its own counsel,
advisors and consultants.
8. Underwriting Requirements. In
connection with any offering involving an underwriting of shares being
issued by the Company or sold by Rigas Shareholders under Paragraph
3, Holder hereby agrees to accept the terms of the underwriting as
agreed upon between the Company and/or the Rigas Shareholders, as
the case may be, and the underwriters selected by the Company.
9. Delay of Registration. Holder shall not
have any right to take any action to restrain, enjoin, or otherwise delay
any registration as the result of any controversy that might arise with
respect to the interpretation or implementation of this Agreement.
10. Indemnification. In the event any
Registrable Securities are included in a registration statement under this
Agreement:
(a) To the extent permitted by law, the
Company will indemnify and hold harmless Holder, its officers, directors,
employees and agents, any underwriter (as defined in the Act) for it, and
each person, if any, who controls Holder or such underwriter within the
meaning of the Act, against any losses, claims, damages, or liabilities,
joint or several, to which they may become subject under the Act, the
Securities Exchange Act of 1934, as amended (the "Exchange 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 or incorporated
by reference 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 or in any incorporated document a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or arise
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out of any violation by the Company of any rule or regulation
promulgated under the Act applicable to the Company and relating to
action or inaction required of the Company in connection with any
registration; and will reimburse such Holder, its officers, directors,
employees and agents, such underwriter, or controlling persons for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability, or
action; provided, however, that the indemnity agreement contained in
this Paragraph 10(a) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability, expenses or action if such settlement
is effected without the consent of the Company (not to be unreasonably
withheld) nor shall the Company be liable in any such case for any such
loss, claim, damage, liability, expenses, 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 permitted by law,
Holder will indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed the registration statement,
each person, if any, who controls the Company within the meaning of the
Act, and each agent and any underwriter for the Company (within the
meaning of the Act) against any losses, claims, damages, or liabilities,
joint or several, to which the Company and/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
Holder expressly for use in connection with such registration; and Holder
will reimburse any legal or other expenses reasonably incurred by the
Company and/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 Paragraph 10(b) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability, expense or
action if such settlement is effected without the consent of such Holder
(which shall not be unreasonably withheld).
(c) Promptly after receipt by an
indemnified party under this paragraph of notice of the commencement
of any action or claim, such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this
paragraph, notify the indemnifying party in writing of the commencement
thereof and, unless in the opinion of counsel for the indemnified party a
conflict of interest exists between an indemnified party and the
indemnifying party, the indemnifying party shall have the right to
participate 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
failure to notify an indemnifying party promptly of the commencement of
any such action, if prejudicial to his ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party
under this paragraph to the extent of such prejudice, but the omission so
to notify the indemnifying party will not relieve him of any liability that he
may have to any indemnified party otherwise than under this paragraph.
(d) If the indemnification provided for in
this Paragraph 10 is held by a court of competent jurisdiction to be
unavailable to an indemnified party with respect to any loss, liability,
claim, damage, or expense referred to therein, then 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 of the indemnified party on the
other in connection with the 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 by the indemnifying party or by the
indemnified party and the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent such statement or
omission.
The parties agree that it would not be
just and equitable if contribution pursuant to this Paragraph 10 were
determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to
in the immediately preceding paragraph. 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) Notwithstanding the foregoing, to
the extent that the provisions on indemnification and contribution
contained in the underwriting agreement entered into in connection with
the underwritten public offering are in conflict with the foregoing
provisions, the provisions in the underwriting agreement shall control.
11. Lockup Agreement. In consideration
for the Company agreeing to its obligations under this Agreement,
Holder 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 Registrable Securities (other than, subject to
the requirements of Paragraph 12, (a) those included in the registration
and (b) sale 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 Paragraph 11),
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 Company hereby agrees to give Holder
among other things written notice of the filing of a
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registration statement for a proposed underwritten offering to which the
restrictions in this Paragraph 11 could apply if so requested.
12. Limitations on Assignment. This
Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their successors and assigns; provided, that the
registration rights granted to Holder in Paragraph 2 and Paragraph 3
hereof may not be assigned or transferred in whole or in part by Telesat
to any transferee other than to a directly of indirectly wholly-owned
subsidiary of Telesat or to an entity that owns, directly or indirectly,
100% of the outstanding capital stock of Telesat (such subsidiaries and
entities, "Affiliates"), and any such Affiliate may freely reassign such
rights to any other Affiliate, which Affiliate agrees to be bound by and
joins in this Agreement as a Holder and thereby agrees among other
things to provide all necessary information to the Company pursuant to
Paragraph 5 in connection with a registration hereunder and all
references herein to Holder shall as the context requires be deemed to
be adjusted to reflect the existence of more than one Holder.
13. Information. The Company covenants
and agrees to use its best efforts to make and keep public information
available, as required by Rule 144(c) under the Act, at all times from the
second anniversary of the date hereof to the third anniversary of the
date hereof, if any Registrable Securities shall then be outstanding. The
Company agrees to use its best efforts not to cause the Common Stock
to be removed from registration pursuant to Section 12 of the Securities
Exchange Act of 1934.
14. Termination. Unless sooner terminated
pursuant to the terms of this Agreement, the obligations of the Company
pursuant to Paragraphs 2 and 3 hereof as to Holder's Registrable
Securities shall expire upon the earlier of: (i) the sale or other disposition
of such Registrable Securities by Holder, which is made together with
an assignment of this Agreement in compliance with Paragraph 12
hereof, (ii) the Final Expiration Date of this Agreement or (iii) upon a
Holder's failure to, or decision not to, include such Holder's Registrable
Securities in a registration statement filed pursuant to Section 2(d), or
(iv) the date when Holder's Registrable Securities then outstanding may
be resold during the succeeding three-month period without Holder being
required to deliver a prospectus with respect thereto under the Act or the
rules and regulations promulgated thereunder. In addition to the
foregoing, the obligations of the Company pursuant to this Agreement
shall terminate if Holder notifies the Company in writing that it does not
wish to have its Shares registered under Paragraph 2 hereof.
Notwithstanding the foregoing, the obligations of the parties under
Paragraph 10 hereof shall survive any such termination.
15. Entire Agreement. This Agreement and
the documents referred to herein constitute the entire agreement among
the parties with respect to the subject matter hereof and supersedes all
prior agreements and negotiations relating thereto.
16. Governing Law. This Agreement,
together with the rights and obligations of the parties hereunder shall be
governed by and construed and enforced in accordance with the laws of
the State of New York without regard to any jurisdiction's conflicts of
laws provisions.
17. Counterparts. This Agreement may be
executed in two or more counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same
instrument.
18. Titles and Subtitles. The titles and
subtitles used in this Agreement are for convenience only and are not to
be considered in construing or interpreting this Agreement.
19. Notices. Any notice, request or other
communication required or permitted under this Agreement shall be
given in writing and shall be deemed to be effectively given upon
(i) personal delivery, (ii) delivery by U.S. Express Mail or other overnight
courier service which provides evidence of delivery, (iii) legible facsimile
transmission, 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:
<PAGE>
<PAGE>
If to the Company:
Adelphia Communications Corporation
Attn: Jake Kane
Colin H. Higgin
5 West Third Street
Coudersport, Pennsylvania 16915
Telephone: (814) 274-9830
Facsimile: (814) 274-8631
with a copy to:
Buchanan Ingersoll Professional Corporation
5800 USX Tower, 600 Grant Street
Pittsburgh, Pennsylvania 15219
Attn: Carl E. Rothenberger, Esq.
Telephone: (412) 562-8826
Facsimile: (412) 562-9316
If to Holder:
Telesat Cablevision, Inc.
c/o ESI Energy, Inc.
1400 Centerpark Boulevard, Suite 600
West Palm Beach, FL 33401
Attn: L.J. Gelber
Telephone: (407) 687-4800
Facsimile: (407) 687-4932
with a copy to:
Steel Hector & Davis
1900 Phillips Point West
777 South Flager Drive
West Palm Beach, FL 33401
Attn: Elisa L. Fuller, P.A.
Telephone: (407) 650-7247
Facsimile: (407) 832-9368
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.
20. Amendments. This Agreement may not be
amended without the written consent of the Company and the holders of
at least a majority in interest of the then outstanding Registrable
Securities.
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<PAGE>
IN WITNESS WHEREOF, the undersigned have
caused this Agreement to be executed by a duly authorized
representative as of the day first above written.
HOLDER:
TELESAT CABLEVISION, INC.
By: /s/ L. J. Gelber
Name: L. J. Gelber
Title: Chairman
COMPANY:
ADELPHIA COMMUNICATIONS
CORPORATION
By: /s/ LeMoyne T. Zacherl
Name: LeMoyne T. Zacherl
Title: Vice President
