<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K/A
(Mark One)
X ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
- ----- EXCHANGE ACT OF 1934 [FEE REQUIRED]
For the fiscal year ended December 31, 1993
-----------------
OR
- ----- TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 [NO FEE REQUIRED]
For the transition period from _________ to _________.
Commission File Number: 1-9046
------
Cablevision Systems Corporation
----------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 11-2776686
- ------------------------------------ ------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Media Crossways, Woodbury, New York 11797
- --------------------------------------- ------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (516) 364-8450
--------------
Securities registered pursuant to Section 12(b) of
the Act:
Title of each class: Class A Common Stock
Name of each exchange on which registered: American Stock Exchange
Securities registered pursuant to Section 12(g) of None
the Act:
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
----- -----
Indicate by a check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of the Registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. X
-----
Aggregate market value of voting stock held by nonaffiliates of the registrant
based on the closing price at which such stock was sold on the American Stock
Exchange on March 28, 1994: $554,603,787
Number of shares of common stock outstanding as of March 28, 1994:
Class A Common Stock - 10,892,922
Class B Common Stock - 12,411,532
Documents Incorporated by reference - The Company intends to file with the
Securities and Exchange Commission, not later than 120 days after the close of
its fiscal year, a definitive proxy statement or an amendment on Form 8 to this
report containing the information required to be disclosed under Part III of
Form 10-K.
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended, the Registrant has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized on the 11th day of
April, 1994.
Cablevision Systems Corporation
By: *
-----------------------
Name: William J. Bell
Title: Vice Chairman
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Francis F. Randolph, Jr., Marc A. Lustgarten and
Robert S. Lemle, and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him in his
name, place and stead, in any and all capacities, to sign this report, and file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, full power and authority to do and perform each
and every act and thing requisite and necessary to be done as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended,
this report has been signed below by the following persons in the capacities and
on April 11, 1994.
Name Title
---- -----
* Chairman of the Board of Directors
- ---------------------------- and Chief Executive Officer
Charles F. Dolan (Principal Executive Officer)
* Senior Vice President-Finance and
- ---------------------------- Treasurer (Principal Financial
Barry J. O'Leary Officer)
* Vice President and Controller
- ---------------------------- (Principal Accounting Officer)
Jerry Shaw
(2)
<PAGE>
SIGNATURES
(continued)
* Vice Chairman and Director
- ----------------------------
William J. Bell
- ---------------------------- Vice Chairman and Director
Marc A. Lustgarten
* Vice Chairman and Director
- ----------------------------
Francis F. Randolph, Jr.
/s/ Robert S. Lemle Executive Vice President, General
- ---------------------------- Counsel, Secretary and Director
Robert S. Lemle
* Senior Vice President and Director
- ---------------------------
Daniel T. Sweeney
- --------------------------- Vice President and Director
James L. Dolan
* Vice President and Director
- ---------------------------
Sheila A. Mahony
- --------------------------- Director and Chairman of the
John Tatta Executive Committee
- --------------------------- Director
Patrick F. Dolan
* Director
- ---------------------------
Charles D. Ferris
* Director
- ---------------------------
Richard H. Hochman
* Director
- ---------------------------
Victor Oristano
- --------------------------- Director
A. Jerrold Perenchio
*By: /s/ Robert S. Lemle Attorney-in-Fact
----------------------
Robert S. Lemle
(3)
<PAGE>
INDEX TO EXHIBITS
EXHIBIT PAGE
NO. DESCRIPTION NO.
- ------- ----------- -----
3.1 --Certificate of Incorporation of the Registrant
(incorporated herein by reference to Exhibit 3.1 to
the Company's Registration Statement on Form S-1
dated January 17, 1986, File No. 33-1936 (the "S-1"))
3.1A --Amendment to Certificate of Incorporation and
complete copy of amended and restated Certificate of
Incorporation (incorporated herein by reference to
Exhibits 3.1A(i) and 3.1A(ii) to the Company's Annual
Report on Form 10-K for the fiscal year ended
December 31, 1989 (the "1989 10-K"))
3.1B --Certificate of Designations for the Series E
Redeemable Exchangeable Convertible Preferred Stock
3.1C --Certificate of Designations for the Series F
Redeemable Preferred Stock
3.2 --By-laws of the Registrant (incorporated herein by
reference to Exhibit 3.2 to the S-1)
3.2A --Amendment to By-laws and complete copy of amended
and restated By-laws (incorporated herein by
reference to Exhibit 3.2 to the 1989 10-K)
3.2B --Amendment to By-laws and complete copy of amended
and restated By-laws (incorporated herein by
reference to Exhibit 3.2B to the Company's Annual
Report on Form 10K for the fiscal year ended
December 31, 1992 (the "1992 10-K").
4.1 --Indenture dated as of November 10, 1988 relating to
the Registrant's $200,000,000 Senior Subordinated
Debentures due October 15, 2003 (incorporated herein
by reference to Exhibit 4.6 to the Company's Annual
Report on Form 10-K for the fiscal year ended
December 31, 1988, File No. 1-9046 (the "1988 10-K").
4.2 --Indenture dated as of April 1, 1992 relating to the
Registrant's $275,000,000 10 3/4% Senior Subordinated
Debentures due April 1, 2004 (incorporated herein by
reference to Exhibit 4.2 to the 1992 10-K).
(4)
<PAGE>
INDEX TO EXHIBITS
(continued)
EXHIBIT PAGE
NO. DESCRIPTION NO.
- ------- ----------- ----
4.3 --Indenture dated as of February 15, 1993 relating
to the Registrant's $200,000,000 9 7/8% Senior
Subordinated Debentures due February 15, 2013
(incorporated herein by reference to Exhibit 4.3 to
the 1992 10-K).
10.1 --Registration Rights Agreement between Cablevision
Systems Company and the Registrant (incorporated
herein by reference to Exhibit 10.1 of the S-1).
10.2 --Registration Rights Agreement between CSC
Holdings Company and the Registrant (incorporated
herein by reference to Exhibit 10.2 to the S-1)
10.4 --Form of Right of First Refusal Agreement between
Dolan and the Registrant (incorporated herein by
reference to Exhibit 10.4 to the S-1)
10.5 --Supplemental Benefit Plan of the Registrant
(incorporated herein by reference to Exhibit 10.7
to the S-1)
10.6 --Cablevision Money Purchase Pension Plan, and
Trust Agreement dated as of December 1, 1983
between Cablevision Systems Development Company and
Dolan and Tatta, as Trustees (incorporated herein
by reference to Exhibit 10.8 to the S-1)
10.6A --Amendment to the Cablevision Money Purchase
Pension Plan adopted November 6, 1992 (incorporated
herein by reference to Exhibit 10.6A to the 1992
10-K).
10.7 --Employment Agreement between Charles F. Dolan and
the Registrant dated January 27, 1986 (incorporate
herein by reference to Exhibit 10.9 to the S-1)
10.8 --Amended and Restated Agreement dated as of
June 1, 1983 between SportsChannel Associates and
Cablevision Systems Holdings Company (incorporated
herein by reference to Exhibit 10.11 to the S-1)
(5)
<PAGE>
INDEX TO EXHIBITS
(continued)
EXHIBIT PAGE
NO. DESCRIPTION NO.
- ------- ----------- -----
10.9 --Assignment of Partnership Interest dated as of
November 30, 1984 between Cablevision Systems
Company, Cablevision Company and Cablevision of
Boston Limited Partnership (incorporated herein by
reference to Exhibit 10.15 to the S-1)
10.10 --Promissory Note of Cablevision of Chicago dated
November 30, 1984 payable to Cablevision Company
(incorporated herein by reference to Exhibit 10.16
to the S-1)
10.11 --Promissory Note of Cablevision of Chicago dated
August 11, 1989 payable to Cablevision Systems
Corporation (incorporated herein by reference to
Exhibit 10.16A to the 1989 10-K)
10.12 --Lease Agreement dated as of October 9, 1978
between Cablevision Systems Development Company and
Industrial and Research Associates Co. and
amendment dated June 21, 1985 between Industrial
and Research Associates Co. and Cablevision Company
(incorporated herein by reference to Exhibit 10.18
to the S-1)
10.13 --Lease Agreement dated May 1, 1982 between
Industrial and Research Associates Co. and
Cablevision Systems Development Company
(incorporated herein by reference to Exhibit 10.19
to the S-1)
10.14 --Agreement of Sublease dated as of July 9, 1982
between Cablevision Systems Development Company and
Ontel Corporation (incorporated herein by reference
to Exhibit 10.20 to the S-1)
10.15 --Agreement of Sublease dated as of June 21, 1985
between Grumman Data Systems Corporation and
Cablevision Company (incorporated herein by
reference to Exhibit 10.21 to the S-1)
10.16 --Agreement dated as of June 21, 1985 between
Industrial and Research Associates Co., Grumman
Data Systems Corporation and Cablevision Company
(incorporated herein by reference to Exhibit 10.22
to the S-1)
(6)
<PAGE>
INDEX TO EXHIBITS
(continued)
EXHIBIT PAGE
NO. DESCRIPTION NO.
- ------ ----------- ----
10.17 --Lease Agreement dated as of June 21, 1985 between
Industrial and Research Associates Co. and
Cablevision Company (incorporated herein by
reference to Exhibit 10.23 to the S-1)
10.18 --Lease Agreement dated as of February 1, 1985
between Cablevision Company and County of Nassau
(incorporated herein by reference to Exhibit 10.24
to the S-1)
10.19 --Lease Agreement dated as of January 1, 1981
between Cablevision Systems Development Company and
Precision Dynamics Corporation and amendment dated
January 15, 1985 between Cablevision Company and
Nineteen New York Properties Limited Partnership
(incorporated herein by reference to Exhibit 10.25
to the S-1)
10.20 --Option Certificate for 840,000 Shares Issued
Pursuant to the 1986 Nonqualified Stock Option Plan
of the Registrant (incorporated herein by reference
to Exhibit 10.29 to the S-1)
10.21 --Stock Purchase Agreement dated as of February 17,
1989 among the Registrant, Viacom, Inc. and Arsenal
Holdings II, Inc. (incorporated herein by reference
to Exhibit 10.29 to the 1988 10-K)
10.23 --Acquisition Agreement, dated as of April 20,
1989, among Rainbow Programming Holdings, Inc.,
Rainbow Program Enterprises and SportsChannel
America Holding Corporation, and National
Broadcasting Company, Inc. and NBC Cable Holding,
Inc. (incorporated herein by reference to Exhibit
2.1 to the Registrant's Report on Form 8-K under
the Securities Exchange Act of 1934 dated April 20,
1989) (the "April 1989 8-K"))
10.24 --Investment Agreement, dated as of April 20, 1989,
among Rainbow Programming Holdings, Inc., CNBC
Holding Corporation, National Broadcasting Company,
Inc. and CNBC, Inc. (incorporated herein by
reference to Exhibit 2.2 to the April 1989 8-K)
(7)
<PAGE>
INDEX TO EXHIBITS
(continued)
EXHIBIT PAGE
NO. DESCRIPTION NO.
- ---------- ----------- ----
10.25 --New Ventures Agreement, dated as of April 20,
1989, among the Registrant and certain of its
subsidiaries, and National Broadcasting Company,
Inc. and certain of its subsidiaries (incorporated
herein by reference to Exhibit 2.3 to the April
1989 8-K)
10.26 --Olympics Agreement, dated as of April 20, 1989,
between Rainbow Programming Holdings, Inc.,
National Broadcasting Company, Inc. and Rainbow NBC
Olympics Company (incorporated herein by reference
to Exhibit 2.5 to the April 1989 8-K)
10.27 --Agreement for Asset Trade, dated as of August 25,
1989 among CSC Acquisition Corporation, Times
Mirror Cable Television of Long Island, Inc. and
Time Mirror Cable Television of Haverhill, Inc.
(incorporated herein by reference to Exhibit 10.40
to the 1990 10-K)
10.29 --Letter Agreement dated as of December 19, 1991
among U.S. Cable Television Group, L.P., V Cable,
Inc. and General Electric Capital Corporation
(incorporated herein by reference to Exhibit 2(a)
to the January 1992 8-K).
10.30 --Letter Agreement dated as of December 19, 1991
among General Electric Capital Corporation, the
Registrant and V Cable, Inc. (incorporated herein
by reference to Exhibit 2(b) to the January 1992
8-K).
10.31 --Amendment dated February 12, 1992 to Letter
Agreement dated as of December 19, 1991 among
General Electric Capital Corporation, the
Registrant and V Cable, Inc. (incorporated herein
by reference to Exhibit 2(b) to the March 1992 Form
8).
10.32 --Purchase and Reorganization Agreement dated as of
December 20, 1991 between the Registrant and
Charles F. Dolan (incorporated herein by reference
to Exhibit 2(c) to the January 1992 8-K).
(8)
<PAGE>
INDEX TO EXHIBITS
(continued)
EXHIBIT PAGE
NO. DESCRIPTION NO.
- ------- ----------- -----
10.33 --Amendment No. 1 dated as of March 28, 1992 to
Purchase and Reorganization Agreement dated as of
December 20, 1991 between the Registrant and
Charles F. Dolan (incorporated herein by reference
to Exhibit 2(g) to the March 1992 Form 8).
10.34 --Letter Agreement dated February 12, 1992, among
the Registrant, A-R Cable Services, Inc. and
Warburg Pincus Investors, L.P. (incorporated herein
by reference to Exhibit 28(a) to the Registrant's
Current Report on Form 8-K under the Securities
Exchange Act of 1934 dated February 21, 1992 (the
"February 1992 8-K")).
10.35 --Letter Agreement dated February 12, 1992 among
the Registrant, A-R Cable Services, Inc. and
General Electric Capital Corporation (incorporated
herein by reference to Exhibit 28(b) to the
February 1992 8-K).
10.36 --Letter Agreement dated February 12, 1992 among
the Registrant and A-R Cable Services, Inc.
(incorporated herein by reference to Exhibit 28(b)
to the February 1992 8-K).
10.37 --Non-Competition Agreement, dated as of
December 31, 1992, among V Cable, Inc., VC Holding,
Inc. and the Registrant, for the benefit of
V Cable, Inc., VC Holding, Inc. and General
Electric Capital Corporation (incorporated herein
by reference to Exhibit 10.37 to the 1992 10-K).
10.38 --Non-Competition Agreement, dated as of
December 31, 1992, between U.S. Cable Television
Group, L.P. and the Registrant, for the benefit of
U.S. Cable Television Group, L.P. and General
Electric Capital Corporation (incorporated herein
by reference to Exhibit 10.38 to the 1992 10-K).
10.39 --CSC Nonrecourse Guaranty and Pledge Agreement,
dated as of December 31, 1992, between the
Registrant and General Electric Capital
Corporation, as Agent for the Lenders (incorporated
herein by reference to Exhibit 10.39 to the 1992
10-K).
(9)
<PAGE>
INDEX TO EXHIBITS
(continued)
EXHIBIT PAGE
NO. DESCRIPTION NO.
- ------- ----------- -----
10.40 --U.S. Cable Investment Agreement, dated as of
June 30, 1992, among V Cable, Inc., V Cable GP,
Inc., U.S. Cable Television Group, L.P. and U.S.
Cable Partners (incorporated herein by reference to
Exhibit 10.40 to the 1992 10-K).
10.41 --Newco Investment Agreement, dated as of
December 31, 1992, among VC Holding, Inc., V Cable,
Inc. and U.S. Cable Television Group (incorporated
herein by reference to Exhibit 10.41 to the 1992
10-K).
10.42 --Senior Loan Agreement, dated as of December 31,
1992, among V Cable, Inc., the Lenders named
therein and General Electric Capital Corporation,
as Agent for the Lenders and as Lender
(incorporated herein by reference to Exhibit 10.42
to the 1992 10-K).
10.43 --Senior Loan Agreement, dated as of December 31,
1992, among U.S. Cable Television Group, L.P., the
Lenders named therein and General Electric Capital
Corporation, as Agent for the Lenders and as Lender
(incorporated herein by reference to Exhibit 10.43
to the 1992 10-K).
10.44 --Third Amended and Restated Credit Agreement dated
as of June 24, 1992 (the "Third Amended and
Restated Credit Agreement") among the Registrant,
the Restricted Subsidiaries (as defined therein),
the banks which are parties thereto and Toronto
Dominion (Texas), Inc. as Agent and Bank of
Montreal, Chicago Branch, The Bank of New York, The
Bank of Nova Scotia, and The Canadian Imperial Bank
of Commerce, as Co-Agents (incorporated herein by
reference to Exhibit 10.44 to the 1992
10-K).
10.44A --Amendment No. 1, dated as of August 4, 1992, to
Third Amended and Restated Credit Agreement
(incorporated herein by reference to Exhibit 10.44A
to the 1992 10-K).
10.44B --Amendment No. 2 and waiver, dated as of
November 8, 1993 to the Third Amended and Restated
Credit Agreement.
(10)
<PAGE>
INDEX TO EXHIBITS
(continued)
EXHIBIT PAGE
NO. DESCRIPTION NO.
- ------- ----------- -----
10.44C --Amendment No. 3 and waivers, dated as of March
__, 1994 to the Third Amended and Restated Credit
Agreement.
10.46 --Cablevision Systems Corporation Amended and
Restated Employee Stock Plan (incorporated herein
by reference to Exhibit 10.46 to the 1992 10-K).
10.47 --Cablevision Systems Corporation 401(K) Savings
Plan (incorporated herein by reference to Exhibit
10.47 to the 1992 10-K).
10.49 --Fourth Amended and Restated Credit Agreement,
dated as of June 18, 1993, among Cablevision of New
York City - Phase I L.P., Cablevision Systems New
York City Corporation, Cablevision of New York
City- Master L.P., each of the Banks signatory
thereto, The Chase Manhattan Bank (National
Associates) as Agent and The First National Bank of
Chicago and CIBC, Inc. each as Co-Agent.
10.50 --Asset Purchase Agreement, dated as of July 23,
1993, by and between Cablevision of Cleveland, L.P.
and North Coast Cable Limited Partnership
(incorporated herein by reference to Exhibit 10.50
to the Company's Quarterly Report on Form 10-Q for
the fiscal quarter ended June 30, 1993).
10.51 --Master Agreement, dated as of October 26, 1993,
between Cablevision MFR, Inc., Monmouth Cablevision
Associates, Framingham Cablevision Associates and
Riverview Cablevision Associates, L.P.
(incorporated herein by reference to Exhibit 10.51
to the Company's Quarterly Report on Form 10-Q for
the fiscal quarter ended September 30, 1993 (the
"September 1993 10-Q").
10.52 --Asset Purchase Agreement, dated as of October 26,
1993, between Monmouth Cablevision Associates and
Cablevision MFR, Inc. (incorporated herein by
reference to Exhibit 10.52 to the September 1993
10-Q).
(11)
<PAGE>
INDEX TO EXHIBITS
(continued)
EXHIBIT PAGE
NO. DESCRIPTION NO.
- ------- ----------- -----
10.53 --Asset Purchase Agreement, dated as of October 26,
1993, between Framingham Cablevision Associates,
Limited Partnership and Cablevision MFR, Inc.
(incorporated herein by reference to Exhibit 10.53
to the September 1993 10-Q).
10.54 --Asset Purchase Agreement, dated as of October 26,
1993 between Riverview Cablevision Associates, L.P.
and Cablevision MFR, Inc. (incorporated herein by
reference to Exhibit 10.54 to the September 1993
10-Q).
10.55 --Asset Purchase Agreement among A-R Cable
Partners, Nashoba Communications Limited
Partnership, Nashoba Communications Limited
Partnership No. 7 and Nashoba Communications of
Belmont Limited Partnership dated as of November 5,
1993 (incorporated herein by reference to Exhibit
10.55 to the September 1993 10-Q).
10.56 --Preferred Stock Purchase Agreement, dated as of
March 30, 1994, by and among the Company and
Toronto Dominion Investments, Inc.
10.57 --Registration Rights Agreement, dated as of March
30, 1994, by and among the Company and Toronto
Dominion Investments, Inc.
22 --Subsidiaries of the Registrant
23.1 --Consent of Independent Auditors
28.1 --Form of Guarantee and Indemnification Agreement
among Dolan, the Registrant and directors and
officers of the Registrant (incorporated herein by
reference to Exhibit 28 to the S-1)
(12)
<PAGE>
EX. 3.1b
CERTIFICATE OF VOTING POWERS, DESIGNATIONS,
PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL OR OTHER SPECIAL RIGHTS AND
QUALIFICATIONS, LIMITATIONS AND
RESTRICTIONS THEREOF OF THE
SERIES E REDEEMABLE EXCHANGEABLE
CONVERTIBLE PREFERRED STOCK
OF
CABLEVISION SYSTEMS CORPORATION
-------------------------------
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
-------------------------------
I, William J. Bell, Vice Chairman of Cablevision Systems Corporation
(the "corporation"), a corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware, in accordance with the
provisions of Section 151 of the General Corporation Law of the State of
Delaware, DO HEREBY CERTIFY:
That, pursuant to authority conferred upon the Board of Directors by
the Certificate of Incorporation as amended of said corporation, said Board of
Directors, at a meeting duly called and held on March 30, 1994, adopted a
resolution providing for the issuance of an aggregate of One Hundred Thousand
(100,000) shares of Series E Redeemable Exchangeable Convertible Preferred
Stock, which resolution is as follows:
WHEREAS, the Board of Directors of the corporation (the "Board of
Directors") is authorized, within the limitations and restrictions stated in
the Certificate of Incorporation, as amended, to fix by resolution or
resolutions the designation of each series of preferred stock and the powers,
designations, preferences and relative participating, optional or other rights,
if any, or the qualifications, limitations or restrictions thereof, including,
without limiting the generality of the foregoing, such provisions as may be
desired concerning voting, redemption, dividends, dissolution or the
distribution of assets, conversion or exchange, and such other subjects or
matters as may be fixed by resolution or resolutions of the Board of Directors
under the General Corporation Law of Delaware; and
WHEREAS, it is the desire of the Board of Directors, pursuant to its
authority as aforesaid, to authorize and fix the terms of a series of preferred
stock and the number of shares constituting such series;
<PAGE>
2
NOW, THEREFORE, BE IT RESOLVED, that there is hereby authorized such
series of preferred stock on the terms and with the provisions herein set
forth:
I. CERTAIN DEFINITIONS.
As used herein, the following terms shall have the following meanings
(with terms defined in the singular having comparable meanings when used in the
plural and vice versa), unless the context otherwise requires:
"A Rating" means that a Person's senior debt carries either (i) a
rating of at least A+ from Standard & Poor's Corporation and its
successors ("S&P") and at least A2 from Moody's Investors Service, Inc.
and its successors ("Moody's") or (ii) a rating of at least A from
Moody's and at lease A from S&P, or, if either S&P or Moody's, or both,
shall not make a rating of such Person's senior debt publicly available,
a nationally recognized statistical rating agency or agencies, as the case
may be, selected by the corporation which shall be substituted for S&P or
Moody's, as the case may be.
"Abeyance Test" has the meaning specified in Section VII(G) hereof.
"Abeyance Test Date" has the meaning specified in Section VII(G)
hereof.
"Actual Control Change Date" has the meaning specified the definition
of "Trigger Date."
"Actual Tax Payable" means the federal income tax payment required to
be made by a Holder in respect of Dividends through the relevant Tax
Computation Date.
"Additional Preferred Stock" has the meaning set forth in Article
Fourth of the corporation's Certificate of Incorporation.
"Affiliate" means, with respect to any Person, (i) any other Person
directly or indirectly controlling, controlled by, or under common control
with, such Person, (ii) any director, officer, partner or employee of such
Person or any Person specified in (i) above, or (iii) any immediate family
member of any Person specified in (i) or (ii) above.
"Alternate Exchange Shares" has the meaning specified in
Section IX(D) (i) hereof.
"Annualized Operating Cash Flow" shall have the meaning assigned to
such term in the Senior Credit Agreement (as
<PAGE>
3
such agreement is in effect on the date of filing of this Certificate of
Designations).
"Applicable Rate" has the meaning specified in Section IV(A)
(ii) hereof.
"Applicable Spread" means 2.50% plus .50% commencing at any time that
(x) a Registration Statement is not filed with the SEC on or prior to the
date required to be filed under Section 2.1(c), Section 2.2(b),
Section 2.2(d), Section 2.4 or Section 2.5 of the Registration Rights
Agreement, as the case may be, (y) a Registration Statement is not
declared, or does not become, effective on or prior to the date required
to be declared, or become, effective under Section 2.1(c), Section 2.2
(b), Section 2.2(d), Section 2.4 or Section 2.5, as the case may be, or
(z) a Registration Statement is not maintained effective for the time
period specified in Section 2.1(c), Section 2.2(d), Section 2.2(e),
Section 2.3, Section 2.4 or Section 2.5, as the case may be, and
continuing until the earlier of (x) the filing of a Registration
Statement and (y) the effectiveness of such Registration Statement, as the
case may be. The Applicable Spread will not be increased pursuant to this
definition during any period in which a Suspension Notice is in effect
pursuant to Section 3.2(c) or Section 4.1 of the Registration Rights
Agreement.
"Auction Date" shall have the meaning specified in Section VII(C)
(ii) hereof.
"Auction Election Notice" shall have the meaning specified in Section
VII(C)(ii) hereof.
"Auction Settlement Date" has the meaning specified in Section VII(F)
(i) (a) hereof.
"BHC Act Holder" means any Holder which is, is an Affiliate of, or
by virtue of the International Banking Act of 1978, as amended, is subject
to regulation as, a bank holding company under the Bank Holding Company
Act of 1956, as amended.
"Broker" has the meaning specified in Section VII(F) (i) (b) hereof.
"Business Day" means a day other than a Saturday, Sunday, national or
New York State holiday or other day on which commercial banks in New York
City are authorized or required by law to close.
"Capital Stock" means any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock.
<PAGE>
4
"Change of Control" means either (i) the consummation of any sale or
other transfer of shares of Common Stock by Dolan which results in Dolan
retaining, directly or indirectly, less than fifty percent (50%) of the
voting power with respect to the corporation's voting stock (a "Dolan
Sale Transaction"); or (ii) the entering into by Dolan or the corporation
of a transaction with a third party which gives the third party the right
(without the consent of the corporation or Dolan) to acquire securities of
the corporation or Dolan such that after such acquisition Dolan would own,
directly or indirectly, less than fifty percent (50%) of the voting power
with respect to the corporation's voting stock (an "Eventual Control
Transaction").
"Class A Common Stock" means the Class A Common Stock, par value $.01
per share, of the corporation.
"Class B Common Stock" means the Class B Common Stock, par value $.01
per share, of the corporation.
"Closing Price" on any day shall mean the reported last sale price
per share of Class A Common Stock regular way on such day or, in case no
such sale takes place on such day, the average of the reported closing
bid and asked prices regular way, in each case on the principal national
securities exchange on which the Class A Common Stock is listed or
admitted to trading or, if the Class A Common Stock is not listed or
admitted to trading on any national securities exchange, on the National
Association of Securities Dealers Automated Quotations National Market
System, or, if not quoted on such National Market System, the average of
the closing bid and asked prices in the over-the-counter market as
furnished by any New York Stock Exchange member firm selected from time to
time by the corporation for that purpose.
"Code" means the Internal Revenue Code of 1986, as amended, or
successor provisions.
"Common Stock" means the Class A Common Stock and the Class B Common
Stock and any other class of common stock hereafter authorized by the
corporation from time to time.
"Confirmation" has the meaning specified in Section VII(F) (i) (b)
hereof.
"Conversion Agency Agreement" has the meaning specified in Section
VII(F) (i) (b) hereof.
"Conversion Agent" has the meaning specified in Section VII(F) (i)
(a) hereof.
"Conversion Date" has the meaning specified in Section VII(A) hereof.
<PAGE>
5
"Conversion Intention Notice" means a notice delivered by a Holder to
the corporation indicating such Holder's good faith (but nonbinding)
intention to elect, during the Sale Window, to exercise its right to
convert up to the number of shares of Series E Preferred Stock specified
in such Conversion Intention Notice. No Holder may deliver another
Conversion Intention Notice until the expiration of 135 days from the end
of the previous Sale Window in respect of such Holder.
"Conversion Notice" has the meaning specified in Section VII(B)
hereof.
"Convertibility Period" means any Sale Window that occurs during the
period beginning on April 1, 1995 or, in the event there is a suspension
of conversion rights pursuant to Section VII(G), such later date on which
such suspension shall become void or be no longer effective.
"Corporation" or "corporation" means Cablevision Systems Corporation.
"Current Market Value" means (i) in the case of a publicly-traded
security, the average of the Closing Prices for the twenty (20) consecutive
Trading Days through and including the date ending two Business Days prior
to the applicable Determination Date (e.g., if the Determination Date is
April 10, Current Market Value would be calculated using the 20 Trading
Days ending on April 8, assuming April 8, 9 and 10 are all Business Days),
(ii) in the case of cash, the amount thereof, and (iii) in the case of
property other than publicly-traded securities or cash, the fair market
value thereof as determined in good faith by the Board of Directors.
"Determination Date" means the Conversion Date in the case of a
conversion pursuant to Section VII(A), the Dividend Payment Date in the
case of a dividend and the Auction Date in the case of an Auction
Conversion.
"Dividend Determination Date" has the meaning specified in Section
IV(A) (ii) hereof.
"Dividend Payment Date" means each January 1, April 1, July 1 and
October 1 of each year on which dividends shall be paid, any Conversion
Date, Redemption Date, Auction Date, Exchange Date and any other date on
which dividends in arrears may be paid.
"Dividend Period" means the Initial Dividend Period, and, thereafter,
each Quarterly Dividend Period.
"Dividend Record Date" means, with respect to the dividend payable
on each Dividend Payment Date, the
<PAGE>
6
fifteenth day immediately preceding such Dividend Payment Date, or such
other record date as may be designated by the Board of Directors with
respect to the dividend payable on such Dividend Payment Date; PROVIDED,
HOWEVER, that such record date may not be more than sixty days or less than
ten days prior to such Dividend Payment Date.
"Dividend(s)" means payment(s) of dividends on the Series E Preferred
Stock as described in Section IV hereof.
"DRD" means the dividends received deduction provided by Section
243(a)(1) of the Code.
"Dolan" shall mean Mr. Charles Dolan, his spouse, his descendants or
any spouse of any such descendants and trusts for the benefit of, inter
alia, him, his spouse, his descendants or any spouse of any such
descendants, and any estate, testamentary trust, or executor,
administrator, conservator or legal or personal representative of any of
the foregoing.
"Dolan Sale Transaction" has the meaning specified in the definition
of "Change in Control."
"Event Date" has the meaning specified in the definition of "Trigger
Date."
"Eventual Control Transaction" has the meaning specified in the
definition of "Change in Control."
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Date" has the meaning specified in Section IX(B) hereof.
"Exchange Notice" has the meaning specified in Section IX(B) hereof.
"GAAP" means generally accepted accounting principles in effect in the
United States as of the time when and for the period as to which accounting
principles are to be applied.
"Holder" means a registered holder of shares of Series E Preferred
Stock.
"Hypothetical Tax Payable" means the amount of federal income tax
which a Holder would have paid on the relevant Tax Computation Date in
respect of Dividends if the DRD had been 70% from the date of issuance of
the Series E Preferred Stock through the Tax Computation Date and the
Dividends were "dividends" within the meaning of Section 316(a) of the
Code.
<PAGE>
7
"Indebtedness" shall have the meaning assigned to such term in the
Senior Credit Agreement (as such agreement is in effect on the date of
filing of this Certificate of Designations).
"Initial Dividend Period" means the dividend period commencing on and
including the Original Issue Date and ending on and including June 30,
1994.
"Issuance Notice" has the meaning specified in Section X(D)(iii)
hereof.
"Junior Securities" has the meaning specified in Section III(A)(i)
hereof.
"Liquidation Preference" means the Original Liquidation Preference,
plus an amount in cash equal to all accrued and unpaid dividends (including
an amount equal to a prorated dividend from the last Dividend Payment Date
to the date such Liquidation Preference is being determined). The
Liquidation Preference of a share of Series E Preferred Stock will increase
on a daily basis as dividends accrue on such share and will decrease only
to the extent such dividends are actually paid, all as provided in
Section IV hereof. Notwithstanding the foregoing, in determining the
amount to be paid on a Redemption Date or the number of shares of Class A
Common Stock to be issued on a Conversion Date or the amount of cash to be
paid on an Auction Settlement Date, or the liquidation preference of
securities to be issued on an Exchange Date, or the amount of shares to be
issued in payment of a dividend on a Dividend Payment Date, Liquidation
Preference shall not be deemed to include any dividends payable on any such
date to the extent such dividends are to be paid on such date in accordance
with the requirements of this Certificate of Designations.
"London Business Day" means any day (i) that is a Business Day and
(ii) on which dealings in United States dollars are transacted in the
London interbank market.
"Mandatory Conversion" has the meaning specified in Section VII(D)(i)
hereof.
"Mandatory Conversion Event" has the meaning specified in Section
VII(D)(i) hereof.
"Mandatory Conversion Notice" has the meaning specified in Section
VII(D)(i) hereof.
"Mandatory Conversion Price" has the meaning specified in Section
VII(D)(i) hereof.
<PAGE>
8
"Original Issue Date" means the date upon which the Series E Preferred
Stock was originally issued by the corporation.
"Original Liquidation Preference" means $1,000 per share of Series E
Preferred Stock.
"Parity Securities" has the meaning specified in Section III(A)(ii)
hereof.
"Permitted Distribution" means (i) the payment or declaration of any
dividend by the corporation or the making by the corporation of any other
distribution or the consummation of an exchange offer, or any combination
of the foregoing, which results in all or a portion of the Capital Stock of
Rainbow Programming Holdings, Inc. or of another entity holding only assets
that were held by Rainbow Programming Holdings, Inc. immediately prior to
the acquisition thereof by such entity being held by all or any portion of
the shareholders of the corporation; (ii) distributions on Parity
Securities payable only in additional Parity Securities, Junior Securities
or warrants, rights, calls or options exercisable for or convertible into
Parity Securities or Junior Securities; (iii) distributions on Junior
Securities payable only in additional Junior Securities or warrants,
rights, calls or options exercisable for or convertible into Junior
Securities; (iv) repurchases or cashing-out of any securities or awards
issued or issuable pursuant to any employee benefit plans of the
corporation or its subsidiaries; or (v) dividends or distributions on, or
repurchases or redemptions of, the Series C Preferred Stock outstanding on
the date of this Certificate of Designations (or on the Series D Preferred
Stock issuable upon conversion of such Series C Preferred Stock).
"Permitted Transferees" means (i) any Affiliate of a Holder or (ii)
any other Person to which a Holder transfers shares of Series E Preferred
Stock with the consent of the corporation, which consent shall not be
unreasonably withheld, but, in the case of clause (ii), only to the extent
of transfers necessary to enable the Holder to comply with the Bank Holding
Company Act of 1956, as amended.
"Person" means any individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, governmental authority or other entity of whatever nature.
"Preferred Stock Purchase Agreement" means the Preferred Stock
Purchase Agreement dated as of March 30, 1994, by and among the corporation
and each of the purchasers referred to therein, relating to the sale and
purchase of the Series E Preferred Stock.
<PAGE>
9
"Public Offering" means the sale of shares of Exchange Shares to the
public pursuant to a registration statement under the Securities Act of
1933, as amended.
"Qualified Buyer" means an organization which has, or one or more of
the controlling entities of which have: (i)(A) publicly traded equity
securities, (B) at least $1 billion of net worth as of its most recently
published financial statements, and (C) an A Rating; or (ii)(A) publicly
traded equity securities, and (B) a total equity value of at least $10
billion based upon the market price of such equity securities. Whether
an entity is a Qualified Buyer will be tested at the close of business on
the Event Date.
"Quarterly Dividend Period" means the quarterly period commencing on
and including a Dividend Payment Date and ending on and including the day
immediately preceding the next subsequent Dividend Payment Date.
"Rate" means the maximum marginal federal income tax rate applicable
to corporations under Section 11 of the Code in effect on the date of a Tax
Adjustment payment.
"Redemption Date" has the meaning specified in Section VI(B)(i)(e)
hereof.
"Redemption Notice" has the meaning specified in Section VI(B)(i)
hereof.
"Redemption Price" has the meaning specified in Section VI(A) (i)
hereof.
"Registered Shares" has the meaning specified in Section IV(B)(i)
hereof.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of March 30, 1994, by and among the corporation and
each of the purchasers listed on Schedule 1 thereto.
"Registration Statement" means a registration statement on an
appropriate form under the Securities Act of 1933, as amended, relating
to the offer and sale of the corporation's Class A Common Stock issuable on
conversion of the Series E Preferred Stock, as filed by the corporation
with the SEC.
"Reinvestment Breakage" means, in the case of any redemption of shares
of Series E Preferred Stock prior to the last day of any Quarterly Dividend
Period, an amount equal to the difference, if any, between (i) LIBOR (as
determined pursuant to Section IV(A) hereof) on the immediately preceding
Dividend Determination Date and (ii) LIBOR (as it would be determined
pursuant to Section IV(A)
<PAGE>
10
hereof for the period beginning on the Redemption Date for deposits of U.S.
dollars having a maturity of one month), times the aggregate Liquidation
Preference of the shares of Series E Preferred Stock called for redemption,
times a fraction, the numerator of which is the actual number of days that
would have elapsed to the end of such Quarterly Dividend Period and the
denominator of which is 360.
"Reserve Share Number" initially shall be equal to 5,000,000 shares of
Class A Common Stock and shall be reset (but not below 5,000,000 shares
multiplied by a fraction, the numerator of which is the number of
outstanding shares of Series E Preferred Stock on March 1 of the year in
which the determination is being made and the denominator of which is
100,000) not later than March 31 of each year commencing March 31, 1995 to
equal not less than the aggregate Liquidation Preferences of all
outstanding shares of Series E Preferred Stock on March 1 of such year
divided by the Current Market Value of the Class A Common Stock calculated
through March 1 of such year.
"Sale Window" as to a Holder means the period commencing on the 45th
day following receipt of a Conversion Intention Notice and ending on the
105th day following receipt of such notice; PROVIDED that a Holder will
have the right to extend a Sale Window to the 135th day following receipt
of such Conversion Intention Notice if the Holder delivers to the
corporation on or prior to the 90th day after the receipt of the Conversion
Intention Notice a written notice extending such Sale Window, in which case
the Sale Window shall expire on such 135th day.
"SEC" means the Securities and Exchange Commission.
"Senior Credit Agreement" means the Third Amended and Restated Credit
Agreement, dated as of June 24, 1992, among the corporation, the Restricted
Subsidiaries (as defined therein), the Banks parties thereto, and Toronto
Dominion (Texas), Inc., as Agent, and Bank of Montreal, Chicago Branch,
The Bank of New York, The Bank of Nova Scotia and The Canadian Imperial
Bank of Commerce, as Co-Agents, as the same shall be further amended,
supplemented or otherwise modified from time to time.
"Senior Securities" has the meaning specified in Section III(B)
hereof.
"Series C Preferred Stock" means Series C Cumulative Preferred Stock
of the corporation.
"Series D Preferred Stock" means the Series D Cumulative Preferred
Stock of the corporation.
<PAGE>
11
"Series E Preferred Stock" means the Series E Redeemable
Exchangeable Convertible Preferred Stock, par value $.01 per share, of
the corporation authorized by this Certificate of Designations (as such
Certificate of Designations may be amended from time to time).
"Settlement Date" has the meaning specified in Section VII (B) (i)
hereof.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than fifty percent (50%)
of the total voting power of shares of Capital Stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by any Person or one or more of the other
Subsidiaries of such Person or a combination thereof.
"Tax Adjustment" means an amount equal to the after tax equivalent
of one-half of the difference between the Actual Tax Payable and the
Hypothetical Tax Payable. The after tax equivalent will be computed at the
Rate. The Tax Adjustment will be payable if the amount of the DRD is
reduced by future legislation to less than 70% or the DRD is unavailable
to a Holder solely because the Dividends do not, in whole or in part,
constitute "dividends" under Section 316 (a) of the Code because they
exceed the corporation's current and accumulated earnings and profits.
The Actual Tax Payable and Hypothetical Tax Payable, shall be computed
assuming (i) such Holder had net income other than the Dividends, and had
no losses, credits or deductions (other than the DRD relating to the
Dividends) and (ii) the rate of federal tax is the Rate.
"Tax Computation Date" means any date on which a Holder recognizes
taxable income for federal income tax purposes in respect of (i) Dividends
or (ii) capital gain on the redemption or sale of the Series E Preferred
Stock or other stock of the corporation into which the Series E Preferred
Stock has been converted or exchanged without recognition of gain for
federal income tax purposes under Sections VII and IX hereof.
"Trading Day" means a day on which the principal national securities
exchange on which the Class A Common Stock is listed or admitted to
trading is open for the transaction of business or, if the Class A
Common Stock is not listed or admitted to trading on any national
securities exchange, a Monday, Tuesday, Wednesday, Thursday or Friday on
which banking institutions in the Borough of Manhattan, City and State of
New York are not authorized or obligated by law or executive order to
close.
<PAGE>
12
"Trigger Date" means (i) in the case of a Dolan Sale Transaction,
the date of the consummation of such sale which takes Dolan's ownership,
directly or indirectly, below fifty percent (50%) of the voting power with
respect to the corporation's voting stock (the "Actual Control Change
Date"); and (ii) in the case of an Eventual Control Transaction: (A) if
the acquiror is a Qualified Buyer, the Actual Control Change Date; and (B)
if the acquiror is not a Qualified Buyer, the earlier of the date of (x)
the execution and delivery of the definitive agreement relating to the
Eventual Control Transaction, or (y) the making of the first regulatory
filings or governmental notifications with regard to such transaction (the
earlier of such dates being the "Event Date"), PROVIDED, HOWEVER, that
if the definitive agreement with the acquiror relating to the Eventual
Control Transaction requires the redemption of the Preferred Stock on or
prior to the consummation of the Eventual Control Transaction, the Trigger
Date shall not occur until the Actual Control Change Date.
II. DESIGNATION.
The series of preferred stock authorized hereunder shall be
designated as the "Series E Redeemable Exchangeable Convertible Preferred
Stock." The number of shares constituting such series shall be 100,000. The
par value of the Series E Preferred Stock shall be $.01 per share and the
initial liquidation preference of the Series E Preferred Stock shall be
$1,000.00 per share.
III. RANK.
(A) The Series E Preferred Stock shall rank, with respect to
dividend rights and rights on liquidation, dissolution and winding-up of the
affairs of the corporation:
(i) senior to all classes or series of Common Stock of the
corporation and any Capital Stock other than the Series C
Preferred Stock, the Series D Preferred Stock and any series of
Additional Preferred Stock unless by its express terms such series
provides that it ranks junior in right of payment to the Series E
Preferred Stock with respect to dividends or upon liquidation,
dissolution, winding-up or otherwise (collectively referred to as
"Junior Securities"); and
(ii) on a parity with the Series C Preferred Stock, the Series D
Preferred Stock and each class or series of Additional Preferred Stock
which does not provide by its express terms that it ranks junior in right
of payment to the Series E Preferred Stock with respect to dividends or
<PAGE>
13
upon liquidation, dissolution, winding-up or otherwise (collectively
referred to as "Parity Securities").
(B) The corporation shall not create, authorize or issue any class
or series of Capital Stock which ranks senior to the Series E Preferred
Stock as to dividends or upon liquidation, dissolution or winding-up
(collectively referred to as "Senior Securities"), or reclassify any class
or series of Capital Stock into Senior Securities, without the approvals
required by Section X hereof.
IV. DIVIDENDS.
(A) (i) Beginning on the Original Issue Date, the Holders of
outstanding shares of Series E Preferred Stock shall be entitled to receive,
when, as and if declared by the Board of Directors, out of funds legally
available for the payment of dividends, dividends at the Applicable Rate. All
dividends shall be cumulative and shall be payable quarterly in arrears on each
Dividend Payment Date commencing on the first such date to occur after the
Original Issue Date, in preference to dividends on the Junior Securities.
(ii) Each dividend payment will include dividends accrued to but
excluding the applicable Dividend Payment Date. Accrued dividends on any
share of Series E Preferred Stock from the Original Issue Date or from the
last date in respect of which dividends have been paid will be calculated by
multiplying the Original Liquidation Preference by an accrued dividend factor
computed by multiplying the Applicable Rate for the applicable Dividend Period
by a fraction the numerator of which is the actual number of days elapsed in
such Dividend Period and the denominator of which is 360.
As used herein, the "Applicable Rate" with respect to any Dividend
Period shall be equal to LIBOR plus the Applicable Spread. LIBOR will be
determined by The Toronto-Dominion Bank, U.S.A. Division, acting as calculation
agent (in such capacity, the "Calculation Agent") for each applicable
Dividend Period in accordance with the following provisions:
(a) For each applicable Dividend Period, LIBOR will be determined on
the applicable Dividend Determination Date (as defined below) on the
basis of the rate for deposits of U.S. dollars having a maturity of three
months commencing on the second London Business Day immediately following
such Dividend Determination Date, which appears on Telerate Page 3750 as
of 11:00 A.M., London time, on such Dividend Determination Date. Telerate
Page 3750 shall mean the page 3750 or its replacement as provided by the
Telerate News Service. If no rate appears on Telerate Page 3750. LIBOR in
respect of such Dividend Determination Date will be determined as described
in (b) below.
<PAGE>
14
(b) On any applicable Dividend Determination Date on which no rate
for deposits of U.S. dollars having a maturity of three months appears on
Telerate Page 3750 as specified in (a) above, LIBOR will be determined on
the basis of the rates at which deposits in U.S. dollars having a maturity
of three months commencing on the second London Business Day immediately
following such Dividend Determination Date and in a principal amount of not
less than U.S. $1,000,000 that is representative for a single transaction
in such market at such time are offered by four major banks in the London
interbank market selected by the Calculation Agent at approximately
11:00 A.M., London time, on such Dividend Determination Date to prime banks
in the London interbank market. The Calculation Agent will request the
principal London office of each of such banks to provide a quotation of its
rate. If at least two such quotations are provided, LIBOR in respect of
such Dividend Determination Date will be the arithmetic mean of such
quotations. If fewer than two quotations are provided, LIBOR in respect of
such Dividend Determination Date will be the arithmetic mean of the rates
quoted by three major banks in New York City selected by the Calculation
Agent at approximately 11:00 A.M., New York City time, on such Dividend
Determination Date for loans in U.S. dollars to leading European banks
having a maturity of three months commencing on the second London Business
Day immediately following such Dividend Determination Date and in a
principal amount of not less than U.S. $1,000,000 that is representative
for a single transaction in such market at such time; PROVIDED, HOWEVER,
that if fewer than three banks selected as aforesaid by the Calculation
Agent are quoting as mentioned in this sentence, LIBOR will be LIBOR in
effect for the period prior to the one to which such Dividend Determination
Date relates.
For the purposes of the foregoing, the "Dividend Determination Date"
for any Dividend Period shall mean the second London Business Day preceding the
Dividend Payment Date commencing such Dividend Period or, in the case of the
Initial Dividend Period, the second London Business Day preceding the Original
Issue Date.
All percentages resulting from any calculations on the Series E
Preferred Stock will be rounded, if necessary, to the nearest one hundred-
thousandth of a percentage point, with five one-millionths of a percentage
point being rounded upward (E.G., 4.876545% (or .04876545) being rounded to
4.87655% (or .0487655)), and all dollar amounts used in or resulting from such
calculations will be rounded to the nearest cent (with one-half cent being
rounded upward).
(B) (i) The amount of dividends accrued on the Series E Preferred
Stock for any period less than a full Dividend Period (including the Initial
Dividend Period) shall be equal to a pro rata portion of the total dividend
payable for the Dividend
<PAGE>
15
Period during which such period occurs, based on the actual number of days
elapsed in such period for which payable and the total number of days in such
Dividend Period. Dividends shall accrue on a daily basis commencing on the
Original Issue Date. Subject to the following sentence, dividends accruing on
the Series E Preferred Stock are payable in cash. Upon written notice given to
the holders of the Series E Preferred Stock no less than five days prior to any
Dividend Payment Date, the corporation may elect in respect of the cash dividend
otherwise payable on such date that such dividend instead be paid in shares of
Class A Common Stock, registered in the names of the Holders of record as their
names shall appear in the stock ledger of the corporation on the Dividend Record
Date, having an aggregate Current Market Value. as calculated for the relevant
Dividend Payment Date, equal to 105% of the amount of the cash dividend
otherwise then due and payable. Unless the corporation so elects, it shall
not be required to make any dividend payment in Class A Common Stock. The
corporation's ability to pay a dividend in shares of Class A Common Stock rather
than cash is conditioned on such shares being registered under the Securities
Act of 1933, as amended (the "Securities Act"), pursuant to an effective
Registration Statement ("Registered Shares").
(ii) The corporation covenants that all shares of Common Stock issued
as a dividend with respect to the Series E Preferred Stock will be Registered
Shares and, upon issue, will be validly issued, fully paid, nonassessable, free
of preemptive rights and free from all transfer taxes, liens, charges, security
interests and other adverse claims.
(C) Each dividend paid on the Series E Preferred Stock shall be
payable to Holders of record as their names shall appear in the stock ledger
of the corporation on the Dividend Record Date for such dividends, except that
dividends in arrears for any past Dividend Payment Date may be declared and paid
at any time without reference to such regular Dividend Payment Date to Holders
of record on such date not more than sixty (60) days or less than ten (10) days
prior to the date of payment as shall be determined by the Board of Directors.
(D) TAX GROSS-UP PAYMENTS. The corporation will, out of funds
legally available therefor, promptly following the Tax Computation Date, pay
to each Holder as an additional Dividend on the Series E Preferred Stock an
amount equal to the Tax Adjustment.
(E) All dividends paid with respect to shares of the Series E
Preferred Stock shall be paid pro rata to the Holders entitled thereto based
upon the number of shares of Series E Preferred Stock held by each such
Holder. Dividends shall cease to accrue in respect of any particular shares of
Series E Preferred Stock on the earlier of the day prior to the Conversion Date,
Exchange Date, Auction Date or Redemption Date with respect thereto.
<PAGE>
16
not be called by the proper officer of the corporation within twenty (20)
days after personal service of said written request upon the Secretary of
the corporation, or within twenty (20) days after mailing the same within
the United States by certified mail, addressed to the Secretary of the
corporation at its principal executive offices, then the holders of record
of at least twenty percent (20%) of the outstanding shares of Series F
Preferred Stock or of such other class may designate in writing one of
their number to call such meeting at the expense of the corporation, and
such meeting may be called by the Person so designated upon the notice
required for the annual meetings of stockholders of the corporation and
shall be held at the place for holding the annual meetings of stockholders.
Any holder of Series F Preferred Stock or Parity Stock so designated shall
have access to the lists of stockholders to be called pursuant to the
provisions hereof.
(E) At any meeting held for the purpose of electing directors at
which the Holders of Series F Preferred Stock and holders of any other
class of Parity Stock shall have the right, voting together as a class, to
elect directors as aforesaid, the presence in person or by proxy
of the holders of at least a majority of the outstanding Series F Preferred
Stock or such other class shall be required to constitute a quorum of such
Series F Preferred Stock.
(F) Any vacancy occurring in the office of a director elected by the
Holders of Series F Preferred Stock and holders of any other class of
Parity Stock may be filled by the remaining directors elected by such
Holders unless and until such vacancy shall be filled by the holders of
Series F Preferred Stock and such other class.
(G) In addition to the foregoing, in the event of a Dividend Default,
holders of Series F Preferred Stock, except as otherwise required under
Delaware law, shall be entitled to vote on any matter required or permitted
to be voted upon by the stockholders of the corporation, voting together
will all such stockholders as a single class; PROVIDED that this voting
right shall not apply to any matter to be voted on by any other class of
Capital Stock (including the Class A Common Stock and the Class B Common
Stock) as a separate class. The right of the Holders of Series F Preferred
Stock to vote as aforesaid shall continue until such time as all
accumulated dividends that are in arrears on the Series F Preferred Stock
are paid in full, at which time such voting right shall terminate.
Notwithstanding the foregoing, the shares of Series F Preferred Stock voted
by any BHC Act Holder on such matters may not constitute more than 4.99% of
the total number of shares of the designated class entitled to vote as
described above.
<PAGE>
17
V. PAYMENT ON LIQUIDATION.
(A) Upon any voluntary or involuntary liquidation, dissolution or
winding-up of the affairs of the corporation, the Holders of Series E
Preferred Stock will be entitled to receive out of the assets of the corpora-
tion available for distribution to the holders of its Capital Stock, whether
such assets are capital, surplus or earnings, an amount in cash equal to the
Liquidation Preference, before any payment shall be made or any assets distri-
buted to the holders of any of the Junior Securities. Holders of Series E
Preferred Stock shall not be entitled to any other distribution in the event
of voluntary or involuntary liquidation, dissolution or winding-up of the
affairs of the corporation. If upon any voluntary or involuntary liquidation,
dissolution or winding-up of the affairs of the corporation, the assets of the
corporation are not sufficient to pay in full the liquidation payments payable
to the holders of outstanding shares of the Series E Preferred Stock and all
Parity Securities, then the holders of all such shares shall share equally and
ratably in any distribution of assets in proportion to the full Liquidation
Preferences, determined as of the date of such voluntary or involuntary liquid-
ation, dissolution or winding-up, to which they are entitled.
(B) For the purposes of this Section V only, neither the sale, lease,
conveyance, exchange or transfer (for cash, shares of stock, securities or other
consideration) of all or substantially all of the property or assets of the
corporation nor the consolidation or merger of the corporation with or into one
or more corporations shall be deemed to be a liquidation, dissolution or
winding-up of the affairs of the corporation.
VI. REDEMPTION.
(A) OPTIONAL REDEMPTION. (i) The corporation may, at its option,
at any time (but subject to the proviso to Section VI(B) (v)) redeem, from any
source of funds legally available therefor, in whole or in part, in the manner
provided in Section VI(B) hereof, any or all of the shares of Series E Preferred
Stock, at a redemption price, payable in cash, equal to one hundred percent
(100%) of the Liquidation Preference calculated as of the Redemption Date, plus,
in the event the Redemption Date is not April 1, July 1, October 1 or
January 1 of any year, the Reinvestment Breakage (the "Redemption Price").
(ii) In the event of a redemption pursuant to Section VI(A) (i)
hereof of only a portion of the then outstanding shares of Series E Preferred
Stock, the corporation shall effect such redemption pro rata according to the
number of shares held by each Holder of such Series E Preferred Stock.
(B) PROCEDURE FOR REDEMPTION. (i) Subject to clause (v) of this
Section VI(B), not more than sixty (60) and not less
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18
than thirty (30) days (or, in the event the corporation exercises its rights
pursuant to Section VI(A) hereof subsequent to the receipt by it of a Conversion
Notice, not less than ten (10) days) prior to the date fixed for any redemption
of the Series E Preferred Stock, written notice (the "Redemption Notice")
shall be given by first class mail, postage prepaid, to each Holder of record on
the record date fixed for such redemption of the Series E Preferred Stock at
such Holder's address as the same appears on the stock ledger of the
corporation, PROVIDED, HOWEVER, that no failure to give such notice nor any
deficiency therein shall affect the validity of the procedure for the redemption
of any shares of Series E Preferred Stock to be redeemed except as to the Holder
or Holders to whom the corporation has failed to give said notice or except as
to the Holder or Holders whose notice was defective. The Redemption Notice shall
state:
(a) the redemption is pursuant to VI(A) hereof;
(b) the Redemption Price;
(c) whether all or less than all the outstanding shares of the
Series E Preferred Stock redeemable thereunder are to be redeemed and
the total number of shares of such Series E Preferred Stock being redeemed;
(d) the number of shares of Series E Preferred Stock held by the
Holder that the corporation intends to redeem;
(e) the date fixed for redemption (the "Redemption Date");
(f) that the Holder is to surrender to the corporation, at the place
or places where certificates for shares of Series E Preferred Stock are to
be surrendered for redemption, its certificates or certificates
representing the shares of Series E Preferred Stock to be redeemed;
(g) that dividends on the shares of the Series E Preferred Stock
to be redeemed shall cease to accrue on such Redemption Date unless the
corporation defaults in the payment of the Redemption Price; and
(h) that the right of Holders to convert shares of Series E
Preferred Stock has terminated upon the giving of such Redemption Notice
unless (and then for so long as) the corporation defaults in the payment of
the Redemption Price.
(ii) On or before the Redemption Date, each Holder of Series E
Preferred Stock shall surrender the certificate or certificates representing
such shares of Series E Preferred Stock to the corporation, in the manner and
at the place designated in the Redemption Notice, and on the Redemption Date
the full Redemption Price for such shares shall be payable in cash to the
Person whose name appears on such certificate or certificates as
<PAGE>
19
the owner thereof, and each surrendered certificate shall be canceled and
retired. In the event that less than all of the shares represented by any such
certificate are redeemed, a new certificate shall be issued representing the
unredeemed shares.
(iii) If a Redemption Notice shall have been duly given, and if, on
or before the Redemption Date specified therein, all funds necessary for such
redemption shall have been set aside by the corporation, separate and apart
from its other funds, in trust for the pro rata benefit of the Holders of the
Series E Preferred Stock called for redemption, so as to be and continue to
be available therefor, then, notwithstanding that any certificate for shares
so called for redemption shall not have been surrendered for cancellation,
all shares so called for redemption shall no longer be deemed outstanding, and
all rights with respect to such shares shall forthwith on such Redemption
Date cease and terminate, except only the right of the Holders thereof to
receive the amount payable on redemption thereof, without interest.
(iv) If a Redemption Notice shall have been duly given or if the
corporation shall have given to the bank or trust company hereinafter referred
to irrevocable authorization promptly to give such notice, and if on or before
the Redemption Date specified therein the funds necessary for such redemption
shall have been deposited by the corporation with such bank or trust company
in trust for the pro rata benefit of the Holders of the Series E Preferred
Stock called for redemption, then, notwithstanding that any certificate for
shares so called for redemption shall not have been surrendered for
cancellation, from and after the time of such deposit, all shares so called
for redemption shall not longer be deemed to be outstanding and all rights
with respect of such shares shall forthwith cease and terminate, except only
the right of the Holders thereof to receive from such bank or trust company
at any time after the time of such deposit the funds so deposited, without
interest. The aforesaid bank or trust company shall be organized and in good
standing under the laws of the United States of America or of the State of
New York, shall be doing business in the Borough of Manhattan, The City of
New York, shall have capital, surplus and undivided profits aggregating at
least $100,000,000 according to its last published statement of condition,
and shall be identified in the Redemption Notice. Any interest accrued on
such funds shall be paid to the corporation from time to time. Any funds as
set aside or deposited, as the case may be, and unclaimed at the end of three
years from such Redemption Date shall, to the extent permitted by law, be
released or repaid to the corporation, after which repayment the Holders of
the shares so called for redemption shall look only to the corporation for
payment thereof.
(v) Notwithstanding any other provision herein, upon the giving of a
Redemption Notice all rights of the Holders to convert their Series E
Preferred Stock under Section VII(A),
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20
VII(C) (i) or VII(F), or to exchange their shares of Series E Preferred Stock
under Section IX, shall terminate and be void unless (and then for so long as)
the corporation shall default in payment of the Redemption Price, PROVIDED that
such Redemption Notice shall not be effective as to any Holder if given after
(a) 11:00 a.m. on the Auction Date, (b) the effective date of any exchange under
Section IX, or (c) if the Holder has entered into a binding contract of sale and
has complied with the forty-five day notification provision set forth in Section
4.1 of the Registration Rights Agreement, the date of receipt by the corporation
of a Conversion Notice under Section VII(B), in each case as to the shares to be
converted or exchanged.
VII. CONVERSION RIGHTS.
(A) OPTIONAL CONVERSION RIGHTS. During the Convertibility Period,
holders of shares of Series E Preferred Stock may convert any or all such
shares into shares of Class A Common Stock. The number of shares of Class A
Common Stock to be issued upon conversion on any date (each, a "Conversion
Date") shall be calculated by dividing the Liquidation Preference of the
Series E Preferred Stock to be converted (calculated as of the relevant
Conversion Date) by 95% of the Current Market Value of the Class A Common
Stock. Fractional shares otherwise issuable upon conversion may, at the option
of the corporation, be paid in cash at the applicable fraction of the aggregate
value of the Class A Common Stock to be issued upon conversion, or paid in a
full share of Class A Common Stock. The conversion shall take place at the
principal office of the corporation and at such other offices, if any, as the
corporation may designate. Notwithstanding the foregoing, no BHC Act Holder may
convert shares of Series E Preferred Stock into Class A Common Stock if, as a
result of such conversion, such Holder would own or control shares of Class A
Common Stock (other than shares subject to a binding contract of sale that will
settle within five Business Days) which would constitute more than 4.99% of the
total voting power of all shares of Common Stock entitled to vote as a single
class on matters presented to stockholders for a vote.
(B) PROCEDURE FOR OPTIONAL CONVERSION.
To convert pursuant to Section VII(A) or Section VII(C) (i) hereof, a
Holder shall at any time and from time to time deliver a written notice to the
corporation not less than two Business Days prior to the proposed Conversion
Date (the "Conversion Notice") and shall:
(i) surrender on or prior to the fifth Business Day following the
Conversion Date (the "Settlement Date") the certificate or certificates
evidencing the shares of Series E Preferred Stock to be converted, duly
endorsed, at the principal office of the corporation or at the office
<PAGE>
21
designated for such purpose pursuant to Section VII(A) hereof.
(ii) state in writing the name or names in which the Holder wishes
to be issued the certificate or certificates for shares of Class A
Common Stock and the certificate or certificates for shares of Series E
Preferred Stock evidenced by the surrendered certificate or certificates
not so converted; and
(iii) pay any transfer or other tax payable upon the issuance of
the Class A Common Stock in the name or names specified pursuant to
clause (ii) above (if other than the Holder) if required. Other than the
taxes described in the foregoing sentence, the corporation will pay any
and all issue and other taxes (other than taxes based on income) that may
be payable in respect of any issue or delivery of shares of Class A Common
Stock upon conversion of the Series E Preferred Stock pursuant hereto.
Subject to the satisfaction by the Holder of the foregoing requirements, not
later than the Settlement Date the corporation shall deliver (i) a certificate
for the number of registered, validly issued, fully paid and non-assessable
shares of Class A Common Stock issuable upon the conversion and cash for any
fractional share paid in cash and (ii) if less than the full number of shares
of Series E Preferred Stock evidenced by the surrendered certificate or
certificates is being converted, a new certificate or certificates of like
tenor for the number of shares evidenced by such surrendered certificate or
certificates less the number of shares being converted. The Person in whose
name the certificate for Class A Common Stock is registered shall be treated
for all purposes as having become the holder of record of such shares of Class
A Common Stock on the Conversion Date.
(C) SPECIAL CONVERSION RIGHTS. Upon the occurrence of a Trigger Date
with respect to a Change of Control, the Holders may, at their option:
(i) exercise their conversion rights pursuant to Section VII(A),
regardless of whether a Convertibility Period is then in effect,
(ii) require a conversion as provided in Section VII(F) hereof,
regardless of whether a Convertibility Period is then in effect, in which
event within 15 days of such Trigger Date such Holder shall provide to the
corporation written notice of its election to proceed with an auction
conversion as provided in Section VII(F) (the "Auction Election Notice")
(which Auction Election Notice shall establish an auction date in
accordance with Section VII(F) (the "Auction Date") which shall be not less
than five days following the Trigger Date, if a Registration Statement
shall then be effective as to the shares of Class A Common
<PAGE>
22
Stock to be acquired upon such conversion, or the first date on which such
a Registration Statement shall become effective, if such a Registration
Statement shall not then the effective), or
(iii) refrain from exercising rights under clause (i) or (ii) above.
(D) MANDATORY CONVERSION UPON THE OCCURRENCE OF CERTAIN EVENTS.
(i) In the event (the "Mandatory Conversion Event") that on any
Trading Day the Closing Price per share of the Class A Common Stock is less
than $40.00 (subject to adjustment as provided in Section VII(D)(ii) hereof)
(the "Mandatory Conversion Price"), the corporation shall have the right to
require conversion of the Series E Preferred Stock ( a "Mandatory Conversion")
pursuant to Section VII(F) hereof by delivery within 15 days after such
Mandatory Conversion Event of written notice of such Mandatory Conversion (the
"Mandatory Conversion Notice") by first class mail, postage prepaid, to each
Holder of record on the date of the Mandatory Conversion Event. The Mandatory
Conversion Notice shall establish a conversion date (the "Auction Date") which
shall be not more than 75 nor less than 60 days following the date of the
Mandatory Conversion Event. The Mandatory Conversion shall occur on the Auction
Date as provided in Section VII(F).
(ii) (a) The Mandatory Conversion Price shall be adjusted from time to
time in case the corporation shall (x) pay a dividend or make a distribution to
all holders of its Class A Common Stock in shares of its Class A Common Stock,
(y) subdivide its outstanding shares of Class A Common Stock into a larger
number of shares of Class A Common Stock, or (z) combine its outstanding shares
of Class A Common Stock into a smaller number of shares of Class A Common
Stock. The Mandatory Conversion Price to be in effect immediately after such
event shall be determined by multiplying the Mandatory Conversion Price in
effect immediately prior to such event by a fraction, the numerator of which
shall be the number of shares of Class A Common Stock outstanding immediately
prior to such event and the denominator of which shall be the number of shares
of Class A Common Stock outstanding immediately after and as a result of such
event. In addition, if the shares of Class A Common Stock shall be reclassified
into a different number of shares of Class A Common Stock, including if there
shall be a merger of the corporation with any other corporation in which the
shares of Class A Common Stock are changed into a different number of shares
of Class A Common Stock, the Mandatory Conversion Price to be in effect
immediately after such event shall be determined by multiplying the Mandatory
Conversion Price in effect immediately prior to such event by a fraction, the
numerator of which shall be the number of shares of Class A Common Stock
outstanding immediately prior to such event and the denominator of which
<PAGE>
23
shall be the number of shares of Class A Common Stock into which the Class A
Common Stock outstanding immediately prior to such event were reclassified. An
adjustment made pursuant to this Section VII(D)(ii) shall become effective
immediately after the record date in the case of a dividend or distribution and
shall become effective immediately after the effective date in the case of a
subdivision, combination or merger.
(b) Whenever the Mandatory Conversion Price is adjusted as aforesaid,
the corporation shall prepare a certificate signed by any officer of the
corporation setting forth the adjusted Mandatory Conversion Price and showing
in reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be mailed to each holder of shares of Series E
Preferred Stock at its then registered address by first-class mail, postage
prepaid. Anything herein to the contrary notwithstanding, no adjustment in the
Mandatory Conversion Price shall be required unless such adjustment, either by
itself or with other adjustments not previously made, would require a change of
at least one percent in such price; PROVIDED, HOWEVER, that any adjustment
which by reason of this sentence is not required to be made shall be carried
forward and taken into account in any subsequent adjustment.
(E) EFFECT ON CONVERSION OF A MERGER, CONSOLIDATION OR SALE OF
ASSETS. If the corporation consolidates or merges with or into, or sells,
leases or otherwise transfers all or substantially all of the assets of the
corporation to, any Person, upon consummation of such transaction each share of
Series E Preferred Stock shall automatically become solely convertible into the
shares of stock or other securities or property to which a holder of shares of
Class A Common Stock would have been entitled upon such consolidation, merger,
sale, lease or other transfer, assuming such holder of Class A Common Stock (i)
is not a Person with which the corporation consolidated or into which the
corporation merged or which merged into the corporation or to which such sale,
lease or transfer was made, as the case may be ("constituent Person"), or an
Affiliate of a constituent Person and (ii) failed to exercise its rights of
election, if any, as to the kind or amount of securities, cash and other
property receivable upon such consolidation, merger, sale, lease or transfer
(PROVIDED that, if the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer is not the same
for each share of Class A Common Stock of the Company held immediately prior to
such consolidation, merger, sale, lease or transfer by Persons other than a
constituent Person (or Affiliate thereof) and in respect of which such rights
of election shall not have been exercised ("non-electing share"), then for the
purpose of this Section VII(E) the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, sale, lease or transfer
by each non-electing share shall be deemed to be the kind and amount so
receivable per share by a plurality of the non-electing shares). In any such
case, appropriate
<PAGE>
24
adjustments, as determined in good faith by the Board of Directors (which
determination shall be evidenced by a written resolution filed with the
minutes of meetings of the Board of Directors), shall be made in the application
of the provisions herein set forth with respect to the rights and interests
thereafter of the Holders of the Series E Preferred Stock (including
Section VII(D)), to the end that the provisions set forth herein shall
thereafter be applicable, as nearly as reasonably may be, in relation to any
shares of stock, securities or other property thereafter deliverable upon the
conversion of shares of Series E Preferred Stock.
(F) PROCEDURE FOR AUCTION CONVERSIONS.
(i) (a) On the fifth Business Day after the Auction Date (the
"Auction Settlement Date") upon the receipt by the Conversion Agent (as
defined below) of a Confirmation as provided in clause (b) below, the shares
of Series E Preferred Stock to be converted shall, unless redeemed, called for
redemption or redemption funds have been deposited under Section VI(B)(iv),
subject, however, to the proviso to Section VI(B)(v), on such Auction Date, be
automatically converted into the number of shares (calculated as to each
conversion to the nearest 1/100th of a share) of Class A Common Stock (which
shares of Common Stock shall consist of authorized but theretofore unissued
shares) determined as provided in clause (b) below. The shares of Class A
Common Stock issuable on such Auction Settlement Date upon conversion of such
Series E Preferred Stock will be delivered to the bank or trust company
appointed from time to time by the corporation as the conversion agent for
Series E Preferred Stock (the "Conversion Agent") for the account of the
Holders. By their acceptance of shares of the Series E Preferred Stock, each
Holder shall be deemed (x) to have accepted the appointment of the Conversion
Agent to act in such capacity on behalf of such Holder and (y) to have
appointed the Conversion Agent as its attorney-in-fact for purposes of making
any endorsements on certificates for shares of Class A Common Stock received
by such Holder upon conversion of the Series E Preferred Stock to the extent
any such endorsement is necessary or appropriate for purposes of effecting the
sale of such shares of Class A Common Stock to a Broker, as described below.
(b) The corporation will enter into an agreement with the Conversion
Agent (the "Conversion Agency Agreement") pursuant to which the Conversion
Agent will solicit bids by nationally recognized broker/dealers registered
with the SEC under the Exchange Act (each, a "Broker"), for the minimum number
of whole shares of Class A Common Stock that such Broker would be willing to
accept on the Auction Settlement Date in exchange for a cash purchase price
payable by such Broker in New York Clearing House (next day) funds equal to
the aggregate Liquidation Preference of the shares of Series E Preferred Stock
to be converted on such Auction Date. The Conversion Agent, in accordance
with the Conversion Agency Agreement, shall accept the bid from the Broker
<PAGE>
25
which the corporation so directs it to accept. If, in accordance with the
Conversion Agency Agreement, the Conversion Agent accepts a bid by a Broker to
purchase all the shares of Class A Common Stock receivable by Holders on the
Auction Settlement Date, the Conversion Agent will on behalf of the Holders
obtain prompt confirmation (a "Confirmation") of such bid (which Confirmation
may be in the form of a customary underwriting or purchase agreement) and the
corporation will on such Auction Settlement Date deliver to the Conversion
Agent for sale to the Broker submitting the bid accepted by the Conversion Agent
the number of shares of Class A Common Stock specified in the Confirmation of
such Broker. The proceeds of such sale shall be paid to the Conversion Agent
for the account of the Holders. No fractional shares of Class A Common Stock
will be issued on conversion.
(c) If, in accordance with the Conversion Agency Agreement, the
Conversion Agent does not accept a bid from a Broker because there is no bid
made by a Broker or, for any reason, the selected Broker does not consummate
the transaction contemplated by the Confirmation, then on such Auction
Settlement Date, all of the shares of Series E Preferred Stock which would have
been converted will remain outstanding.
(d) In the event a transaction contemplated in the Confirmation is
completed, a Holder shall receive payment from the Conversion Agent in respect
of such Holder's shares on or following the Auction Settlement Date upon the
surrender by such Holder of the certificate or certificates representing shares
of Series E Preferred Stock duly endorsed if required by the corporation, at
the office of the Conversion Agent.
(ii) Each conversion of Series E Preferred Stock shall be deemed to
have been made as of the close of business on the Auction Settlement Date, so
that the rights of the Holder shall cease at such time and the person or
persons entitled to receive the shares of Class A Common Stock upon conversion
of such Series E Preferred Stock shall be treated for all purposes as having
become the record holder or holders of the Class A Common Stock at such time;
PROVIDED that, in the case of a failure to consummate a transaction by a Broker
on an Auction Settlement Date the Series E Preferred Stock to be converted
will, as provided in Section VII(F)(i)(c), remain outstanding. Subject to
Section VII(F)(i)(c), from and after the Auction Settlement Date, dividends on
the shares of Series E Preferred Stock converted into shares of Common Stock on
such Auction Date shall cease to accrue, and said Series E Preferred Stock shall
no longer be deemed to be outstanding.
(G) ABEYANCE OF CONVERSION RIGHTS. Notwithstanding the foregoing
provisions of this Section VII, during the period from April 1, 1995 to
March 31, 1997, and subject to the satisfaction by the corporation of the
Abeyance Test (as defined below), the corporation shall have the right, at its
option, to
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26
suspend the coversion rights granted to Holders pursuant to this Section
VII for a period of three months beginning on such Abeyance Test Date. The
corporation shall provide the Holders with immediate notification if the
corporation does not meet the Abeyance Test on any Abeyance Test Date. For
purposes of this Section VII(G), the "Abeyance Test" is as follows:
beginning on April 1, 1995, and thereafter on a quarterly basis on each
June 30, September 30, December 31, and March 31 (each, an "Abeyance Test
Date") there shall not have occurred and be continuing on the relevant
Abeyance Test Date an Event of Default (as defined in the Senior Credit
Agreement). If the corporation satisfies the Abeyance Test on any Abeyance
Test Date, it shall give reasonably prompt notice to the Holders of that fact
and shall include a certification of a senior financial officer of the
corporation that the Abeyance Test has been satisfied as of the relevant
Abeyance Test Date.
The abeyance of conversion rights described above shall automatically
be void upon the occurance of any of the following events:
(i) the corporation shall fail to pay dividends on the Series E
Preferred Stock on any Dividend Payament Date;
(ii) the ratio of the corporation's Indebtedness plus the aggregate
Liquidation Preference of the outstanding Series E Preferred Stock to
Annualized Operating Cash Flow shall at any time be greater than 9:1; or
(iii) any shares of the Series E Preferred Stock shall remain
outstanding on April 1, 1997.
If the event described in clause (ii) above shall occur, the corporation shall
give written notice thereof to the Holders no later than two Business Days after
the corporation shall become aware of such event, PROVIDED that the failure to
give such notice shall not affect the voiding of the abeyance.
(H) RESERVE FOR CONVERSION. The corporation convenants that it will
at all times reserve and keep available, free from preemptive rights, out of
the aggregate of its authorized but unissued Class A Common Stock, solely for
the purpose of enabling it to satisfy any obligation to issue Class A Common
Stock upon conversion of the shares of Series E Preferred Stock, not less than
a number of shares of Class A Common Stock for each share of Series E Preferred
Stock then outstanding equal to the Reserve Share Number.
The corporation convenants that all shares of Class A Common Stock
that may be issued upon the conversion of the Series E Preferred Stock will be
validly issued, fully paid, non-assessable, free of preemptive rights and free
from all transfer taxes (if the shares issued are registered in the name of the
<PAGE>
27
record owner of the Series E Preferred Stock being converted), liens, charges,
security interest and other adverse claims.
VIII. CERTAIN CONVENANTS.
The corporation convenants that the ratio of the corporation's
Indebtedness plus the aggregate Liquidation Preference of the Series E Preferred
Stock outstanding to Annualized Operating Cash Flow shall not at any time be
greater than 9.00:1.00.
IX. EXCHANGE.
(A) REQUIREMENTS.
Upon five (5) days' written notice to the corporation given by the
Holders of not less than $50,000,000 of the aggregate Liquidation Preference
of the Series E Preferred Stock then outstanding, at any time and from time to
time on or after the Original Issue Date, each share of the Series E Preferred
Stock of such Holders may be exchanged, in whole or in part, for shares of
Series F Redeemable Series E Preferred Stock of the corporation having an
aggregate liquidation preference equal to the Liquidation Preference (the
"Exchange Shares").
(B)PROCEDURE FOR EXCHANGE.
To exchange, a Holder shall, at any time upon five (5) days' written
notice to the corporation (the "Exchange Notice"):
(i) surrender the certificate or certificates evidencing the shares
of Series E Preferred Stock to be exchanged, duly endorsed, at the
principal office of the corporation; and
(ii) state in writing the name or names in which it wishes the
certificate or certificates for Exchange Shares to be issued.
Subject to the satisfaction by the Holder of the foregoing requirements, not
more than five (5) days after delivery to the corporation of the Exchange
Notice (the "Exchange Date"), the corporation shall deliver to each Holder
a certificate or certificates for the number of validly issued, fully paid
and non-assessable Exchange Shares issuable upon exchange, together will all
accrued and unpaid dividends to, but excluding, the Exchange Date on the Series
E Preferred Stock being exchanged. The Person in whose name the certificate or
certificates for Exchange Shares are registered shall be treated for all
purposes as having become the holder of record of such Exchange Shares on the
Exchange Date. The Holder shall be required to pay any tax which may be payable
in respect of any transfer involved in the
<PAGE>
28
issuance and delivery of Exchange Shares in a name other than that in which the
Series E Preferred Stock so exchanged was registered, and no such issuance or
delivery shall be made unless and until the Holder requesting such issuance has
paid to the corporation the amount of any such tax or has established to the
satisfaction of the corporation that such tax has been paid.
(C) MANDATORY EXCHANGE.
(i) If the Holders of not less than fifty-one percent (51%) of the
outstanding shares of Series E Preferred Stock provide the corporation with
notice that they intend to sell to a Broker selected by such Holders not less
than $50,000,000 aggregate liquidation preference of the Exchange Shares
issuable upon an exchange pursuant to Section IX hereof, which Broker is to
resell the Exchange Shares in a Public Offering, then the Holders providing
such notice may require all Holders to exchange their shares of Series E
Preferred Stock for Exchange Shares and to sell such shares in the Public
Offering. Upon the Exchange Date for such shares of Series E Preferred Stock,
each share of Series E Preferred Stock shall be deemed no longer to be
outstanding and shall be deemed to have been exchanged for an Exchange Share or
Exchange Shares, as the case may be.
(ii) Each Holder by its acceptance of shares of Series E Preferred
Stock expressly agrees that the corporation's sole obligation under this
Section IX(C) shall be to issue Exchange Shares upon exchange of shares of
Series E Preferred Stock in accordance with Sections IX(A) and (B).
(D) PARTICIPATION RIGHTS. (i) If the corporation at any time after
the date hereof issues shares of non-convertible, non-exchangeable preferred
stock ("Alternative Exchange Shares") of the corporation, each Holder may, at
its option, exchange all of such shares of Series E Preferred Stock for
Additional Preferred Stock as provided in this Section IX(D).
(ii) The corporation will notify each Holder (the "Issuance Notice")
within two Business Days following the issuance of Alternate Exchange Shares.
(iii) A Holder of Series E Preferred Stock may elect to exchange all
of its shares of Series E Preferred Stock for shares of Additional Preferred
Stock having terms identical to the Alternate Exchange Shares (other than the
issuance date, the accrual date for dividends and other similar matters) and
with an aggregate liquidation preference equal to the aggregate Liquidation
Preference of such Holder's Series E Preferred Stock.
Such election must be made by written notice to the corporation within 30 days
of delivery to such holder of the Issuance Notice. The exchange shall occur on
the fifth Business Day following delivery of such Holder's election. Dividends
on the Series E Preferred Stock of such Holder will cease to accrue on the
Series E Preferred Stock of such Holder on the day prior to the exchange
<PAGE>
29
and dividends on the shares issued in exchange therefor shall begin to accrue on
the date of the exchange.
(iv) If a Holder of Series E Preferred Stock does not make the
election under Section IX(D) (iii), such Holder may elect to exchange all of
its shares of Series E Preferred Stock for shares of Additional Preferred
Stock (the "New Shares") having terms identical to the Alternate Exchange
Shares (other than the issuance date, the accrual date for dividends and other
similar matters) except that the dividend rate on the New Shares shall be equal
to the lesser of (x) the dividend rate on the Alternate Exchange Shares and (y)
the rate that is equal to the New Share Rate (as defined below) calculated on
the date of issuance of the New Shares, unless the dividend rate on the
Alternate Exchange Shares is expressed as a floating rate formula calculated
from time to time on the basis of an available rate (such as LIBOR) in which
case the dividend rate on the New Shares shall be the a formula rate identical
to the formula in the Alternate Exchange Shares. The term "New Share Rate"
shall mean the sum of (xx) the interest rate applicable to the United States
Treasury securities having a maturity closest to the mandatory redemption date
of the New Shares, if any, or if there is no mandatory redemption date, the
interest rate on the thirty year Treasury Bond plus (yy) an amount equal to the
difference between (aa) the interest rate applicable to United States Treasury
securities having a maturity closest to the mandatory redemption date of the
Alternate Exchange Shares, if any, or if there is no mandatory redemption date,
the interest rate on the thirty year Treasury Bond on the date of issuance of
the Alternate Exchange Shares, and (bb) the dividend rate on the Alternate
Exchange Shares. An election under this Section IX(D) (iv) must be made by
written notice to the corporation no earlier than 31 days or later than 90 days
following delivery to such Holder of the Issuance Notice. The aggregate
liquidation preference of the New Shares issued under this Section IX(D) (iii)
shall be equal to the aggregate Liquidation Preference of the Holder's Series E
Preferred Stock being exchanged. The exchange shall occur on the fifth Business
Day following delivery of such Holder's election. Dividends on the Series E
Preferred Stock of such Holder will cease to accrue on the Series E Preferred
Stock of such Holder on the day prior to the exchange and dividends on the New
Shares shall begin to accrue on the date of the exchange.
X. VOTING RIGHTS
(A) The holders of Series E Preferred Stock, except as otherwise
required under Delaware law as set forth in paragraphs (B), (C) and (D) below,
shall not be entitled or permitted to vote on any matter required or permitted
to be voted upon by the stockholders of the corporation.
(B) Without the approval of Holders of at least 60% of the shares of
Series E Preferred Stock then outstanding, voting
<PAGE>
30
or consenting, as the case may be, as one class, given in person, by written
consent or by proxy, either in writing or by resolution adopted at an annual or
special meeting called for the purpose, the corporation will not:
(i) create, authorize or issue any Senior Securities or any warrants,
rights, calls or options exercisable or exchangeable for or convertible
into, or any obligations evidencing the right to purchase or acquire any
Senior Securities, including in connection with a merger, consolidation or
other reorganization;
(ii) reclassify any Junior Securities, Parity Securities or other
outstanding Capital Stock of the corporation into any Senior Securities or
any warrants, rights, calls or options exercisable or exchangeable for or
convertible into, or any obligations evidencing the right to purchase or
acquire any Senior Securities;
(iii) amend, modify or repeal the Certificate of Incorporation
(including this Certificate of Designations), By-Laws of the corporation,
or any other specified designations, rights, preferences or powers of the
Series E Preferred Stock in a manner adverse to Holders of Series E
Preferred Stock; PROVIDED, HOWEVER, that the amendment of the provisions of
the Certificate of Incorporation so as to authorize or create, or to
increase the authorized amount of, any Junior Stock or any Parity Stock
shall not be deemed to affect adversely the Holders of Series E Preferred
Stock;
(iv) increase the number of shares of Series E Preferred Stock
authorized for issuance; or
(v) merge or consolidate the corporation with or into any other
corporation, unless the resulting corporation will thereafter have no
Senior Securities, and each Holder of Series E Preferred Stock immediately
preceding such merger or consolidation shall receive the same number of
shares, with the same rights and preferences, of the resulting corporation;
PROVIDED, HOWEVER, that no such consent of the Holders of Series E Preferred
Stock shall be required if, at or prior to the time when such creation,
authorization, issuance, amendment, or repeal is to take effect, provision is
made for the redemption of all shares of Series E Preferred Stock at the time
outstanding.
(C) In the event that the corporation shall, for four consecutive
Quarterly Dividend Periods, (i) fail to declare or pay dividends on the Series
E Preferred Stock as set forth in Section IV(A) hereof (a "Dividend Default")
or (ii) breach or violate the covenant contained in Section VIII hereof (a
"Covenant Default"), then the number of directors constituting the Board of
Directors shall be increased to permit the Holders
<PAGE>
31
of the Series E Preferred Stock to elect one member of the Board of Directors of
the corporation. Holders of a majority of the issued and outstanding shares of
Series E Preferred Stock, voting together with the holders of any Parity Stock
then entitled to elect directors, shall thereupon have the exclusive right to
elect one member of the Board of Directors at any annual or special meeting of
stockholders or at a special meeting of the holders of Series E Preferred Stock
and such Parity Stock called as hereinafter provided.
(D) The right of the Holders of Series E Preferred Stock to vote
pursuant to Section X(C) to elect one member of the Board of Directors as
aforesaid shall continue until such time as all accumulated dividends that are
in arrears on the Series E Preferred Stock are paid in full, in the event of a
Dividend Default, or such time as any breach or violation is cured, in the event
of a Covenant Default, at which time the special right of the Holders of Series
E Preferred Stock to vote for the election of a director and the term of office
of the director elected by the Holders of the Series E Preferred Stock shall
terminate and the number of directors constituting the Board of Directors shall
be reduced accordingly. At any time after voting power to elect a director shall
have become vested and be continuing in the Holders of Series E Preferred Stock
pursuant to Sections X(C) and (D), or if vacancies shall exist in the office of
a director elected by the Holders of Series E Preferred Stock, a proper officer
of the corporation may, and upon the written request of the holders of record of
at least twenty percent (20%) of the shares of Series E Preferred Stock or the
holders of such Parity Stock then outstanding addressed to the Secretary of the
corporation shall, call a special meeting of the Holders of Series E Preferred
Stock and holders of Parity Stock, for the purpose of electing the one director
to be elected by them as herein provided. Any such meeting shall be held at the
earliest practicable date at the place for the holding of the annual meetings of
stockholders. If such meeting shall not be called by the proper officer of the
corporation within twenty (20) days after personal service of said written
request upon the Secretary of the corporation, or within twenty (20) days after
mailing the same within the United States by certified mail, adddressed to the
Secretary of the corporation at its principal executive offices, then the
holders of record of at least twenty percent (20%) of the outstanding shares of
Series E Preferred Stock or of such Parity Stock my designate in writing one of
their number to call such meeting at the expense of the corporation, and such
meeting may be called by the Person so designated upon the notice required for
the annual meetings of stockholders of the corporation and shall be held at the
place for holding the annual meetings of stockholders. Any holder of Series E
Preferred Stock or Parity Stock so designated shall have access to the lists of
stockholders to be called pursuant to the provisions hereof.
(E) At any meeting held for the purpose of electing directors at
which the Holders of Series E Preferred Stock and
<PAGE>
32
holders of Parity Stock shall have the right to elect a director as aforesaid,
the presence in person or by proxy of the holders of at least a majority of the
outstanding Series E Preferred Stock or such Parity Stock shall be required to
constitute a quorum.
(F) Any vacancy occurring in the office of a director elected by the
Holders of Series E Preferred Stock and holders of any Parity Stock may be
filled by the remaining directors elected by such Holders unless and until such
vacancy shall be filled by the holders of Series E Preferred Stock and such
other class.
(G) In addition to the foregoing, in the event of a Dividend Default
or a Covenant Default, holders of Series E Preferred Stock, except as otherwise
required under Delaware law, shall be entitled to vote on any matter required or
permitted to be voted upon by the stockholders of the corporation, voting
together with all such stockholders as a single class; PROVIDED that this voting
right shall not apply to any matter to be voted on by any other class of Capital
Stock (including the Class A Common Stock and the Class B Common Stock) as a
separate class. The right of the Holders of Series E Preferred Stock to vote as
aforesaid shall continue until such time as all accumulated dividends that are
in arrears on the Series E Preferred Stock are paid in full, in the event of a
Dividend Default, or such time as any breach or violation is cured, in the event
of a Covenant Default, at which time such voting right shall terminate.
Notwithstanding the foregoing, the shares of Series E Preferred Stock voted by
any BHC Act Holder on such matters may not constitute more than 4.99% of the
total number of shares of the designated class entitled to vote as described
above.
(H) In any case in which the Holders of Series E Preferred Stock
shall be entitled to vote pursuant to this Section X or pursuant to Delaware
law, each Holder of Series E Preferred Stock shall be entitled to twenty (20)
votes for each share of Series E Preferred Stock held (subject to the
limitations on BHC Act Holders described above).
XI. RESTRICTIONS ON TRANSFER.
Each Holder agrees and acknowledges that it will not, directly or
indirectly, offer, transfer, sell, assign, pledge, hypothecate or otherwise
dispose of any shares of the Series E Preferred Stock, or solicit any offers to
purchase or otherwise acquire or take a pledge of any shares of the Series E
Preferred Stock (or any shares of Class A Common Stock issued upon conversion
thereof) except to Permitted Transferees.
<PAGE>
33
XII. MUTILATED OR MISSING SERIES E PREFERRED STOCK CERTIFICATES.
If any of the Series E Preferred Stock certificates shall be
mutilated, lost, stolen or destroyed, the corporation shall issue, in exchange
and in substitution for and upon cancellation of the mutilated Series E
Preferred Stock certificate, or in lieu of the substitution for the Series E
Preferred Stock certificate lost, stolen or destroyed, a new Series E Preferred
Stock certificate of like tenor and representing an equivalent amount of shares
of Series E Preferred Stock, but only upon receipt of evidence of such loss,
theft or destruction of such Series E Preferred Stock certificate and indemnity,
if requested.
XIII. REISSUANCE OF SERIES E PREFERRED STOCK.
Shares of Series E Preferred Stock that have been issued and
reacquired in any manner, including shares purchased or redeemed or exchanged,
shall (upon compliance with any applicable provisions of the laws of the State
of Delaware) have the status of authorized and unissued shares of preferred
stock undesignated as to series and may be redesignated and reissued as part of
any series of Additional Preferred Stock other than the Series E Preferred
Stock.
XIV. BUSINESS DAY.
If any payment, redemption or exchange shall be required by the terms
hereof to be made on a day that is not a Business Day, such payment, redemption
or exchange shall be made on the immediately succeeding Business Day.
XV. HEADINGS OF SUBDIVISIONS.
The headings of various subdivisions hereof are for convenience of
reference only and shall not affect the interpretation of any of the provisions
hereof.
XVI. SEVERABILITY OF PROVISIONS.
If any right, preference or limitation of the Series E Preferred Stock
set forth in these resolutions and the Certificate of Designations filed
pursuant hereto (as such Certificate of Designations may be amended from time to
time) is invalid, unlawful or incapable of being enforced by reason of any rule
or law or public policy, all other rights, preferences and limitations set forth
in such Certificate of Designations, as amended, which can be given effect
without the invalid, unlawful or unenforceable right, preference or limitation
shall, nevertheless remain in full force and effect, and no right,
<PAGE>
34
preference or limitation herein set forth shall be deemed dependent upon any
other such right, preference or limitation unless so expressed herein.
XVII. NOTICE TO THE CORPORATION.
All notices and other communications required or permitted to be given
to the corporation hereunder shall be made by first class mail, postage prepaid,
to the corporation at its principal executive offices (currently located on the
date of the adoption of these resolutions at the following address: Cablevision
Systems Corporation, One Media Crossways, Woodbury, New York 11797, Attention:
General Counsel). Minor imperfections in any such notice shall not affect the
validity thereof.
XVIII. LIMITATIONS.
Except as may otherwise be required by law, the shares of Series E
Preferred Stock shall not have any powers, preferences or relative,
participating, optional or other special rights other than those specifically
set forth in this resolution (as such resolution may be amended from time to
time) or otherwise in the Certificate of Incorporation of the corporation.
<PAGE>
35
IN WITNESS WHEREOF, this Certificate has been signed on this 31st day of March,
1994.
CABLEVISION SYSTEMS CORPORATION
By: /s/ WILLIAM J BELL
-------------------------------------
Name: William J. Bell
Title: Vice Chairman
Attest:
/s/ ROBERT S. LEMLE
- --------------------------------
Robert S. Lemle
Secretary
<PAGE>
EX 3.1C
[FORM OF SERIES F PREFERRED STOCK CERTIFICATE OF DESIGNATIONS]
CERTIFICATE OF VOTING POWERS, DESIGNATIONS,
PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL OR OTHER SPECIAL RIGHTS AND
QUALIFICATIONS, LIMITATIONS AND
RESTRICTIONS THEREOF OF THE
SERIES F REDEEMABLE
PREFERRED STOCK
OF
CABLEVISION SYSTEMS CORPORATION
--------------------------
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
--------------------------
I, _______________________________ of Cablevision Systems Corporation
(the "corporation"), a corporation organized and existing under and by virtue of
the General Corporation Law of the State of Delaware, in accordance with the
provisions of Section 151 of the General Corporation Law of the State of
Delaware, DO HEREBY CERTIFY:
That, pursuant to authority conferred upon the Board of Directors by
the Certificate of Incorporation as amended of said corporation, said Board of
Directors, at a meeting duly called and held on March 30, 1994, adopted a
resolution providing for the issuance of an aggregate of One Hundred Thousand
(100,000) shares of Series F Redeemable Preferred Stock, which resolution is as
follows:
WHEREAS, the Board of Directors of the corporation (the "Board of
Directors") is authorized, within the limitations and restrictions stated in
the Certificate of Incorporation, as amended, to fix by resolution or
resolutions the designation of each series of preferred stock and the powers,
designations, preferences and relative participating, optional or other rights,
if any, or the qualifications, limitations or restrictions thereof, including,
without limiting the generality of the foregoing, such provisions as may be
desired concerning voting, redemption, dividends, dissolution or the
distribution of assets, conversion or exchange, and such other subjects or
matters as may be fixed by resolution or resolutions of the Board of Directors
under the General Corporation Law of Delaware; and
WHEREAS, it is the desire of the Board of Directors, pursuant to its
authority as aforesaid, to authorize and fix the
<PAGE>
2
terms of a series of preferred stock and the number of shares constituting such
series;
NOW, THEREFORE, BE IT RESOLVED, that there is hereby authorized such
series of preferred stock on the terms and with the provisions herein set forth:
I. CERTAIN DEFINITIONS.
As used herein, the following terms shall have the following meanings
(with terms defined in the singular having comparable meanings when used in the
plural and vice versa), unless the context otherwise requires:
"Additional Preferred Stock" has the meaning set forth in Article
Fourth of the corporation's Certificate of Incorporation.
"Applicable Rate" has the meaning specified in Section IV(A)(ii)
hereof.
"Applicable Spread" means 2.50%.
"Business Day" means a day other than a Saturday, Sunday, national or
New York State holiday or other day on which commercial banks in New York
City are authorized or required by law to close.
"Capital Stock" means any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock.
"Class A Common Stock" means the Class A Common Stock, par value $.O1
per share, of the corporation.
"Class B Common Stock" means the Class B Common Stock, par value $.O1
per share, of the corporation.
"Closing Price" on any day shall mean the reported last sale price
per share of Class A Common Stock regular way on such day or, in case no
such sale takes place on such day, the average of the reported closing bid
and asked prices regular way, in each case on the principal national
securities exchange on which the Class A Common Stock is listed or admitted
to trading or, if the Class A Common Stock is not listed or admitted to
trading on any national securities exchange, on the National Association of
Securities Dealers Automated Quotations National Market System, or, if not
quoted on such National Market System, the average of the closing bid and
asked prices in the over-the-counter market as furnished by any New York
Stock Exchange member firm selected from time to time by the corporation
for that purpose.
<PAGE>
3
"Common Stock" means the Class A Common Stock and the Class B Common
Stock and any other class of common stock hereafter authorized by the
corporation from time to time.
"Corporation" or "corporation" means Cablevision Systems Corporation.
"Current Market Value" means (i) in the case of a publicly-traded
security, the average of the Closing Prices for the twenty (20) consecutive
Trading Days through and including the date ending two Business Days prior
to the applicable Determination Date (e.g., if the Determination Date is
April 10, Current Market Value would be calculated using the 20 Trading
Days ending on April 8, assuming April 8, 9 and 10 are all Business Days),
(ii) in the case of cash, the amount thereof, and (iii) in the case of
property other than publicly-traded securities or cash, the fair market
value thereof as determined in good faith by the Board of Directors.
"Determination Date" means the Dividend Payment Date.
"Dividend Determination Date" has the meaning specified in Section
IV(A)(ii) hereof.
"Dividend Payment Date" means each January 1, April 1, July 1 and
October 1 of each year on which dividends shall be paid, any Redemption
Date and any other date on which dividends in arrears may be paid.
"Dividend Period" means the Initial Dividend Period, and, thereafter,
each Quarterly Dividend Period.
"Dividend Record Date" means, with respect to the dividend payable on
each Dividend Payment Date, the fifteenth day immediately preceding such
Dividend Payment Date, or such other record date as may be designated by
the Board of Directors with respect to the dividend payable on such
Dividend Payment Date; PROVIDED, HOWEVER, that such record date may not
be more than sixty days or less than ten days prior to such Dividend
Payment Date.
"Holder" means a registered holder of shares of Series F Preferred
Stock.
"Initial Dividend Period" means the dividend period commencing on and
including the Original Issue Date and ending on and including the next
Dividend Payment Date.
"Junior Securities" has the meaning specified in Section III(A)(i)
hereof.
"Liquidation Preference" means the Original Liquidation Preference,
plus an amount in cash equal to all accrued and
<PAGE>
4
unpaid dividends (including an amount equal to a prorated dividend from the
last Dividend Payment Date to the date such Liquidation Preference is being
determined). The Liquidation Preference of a share of Series F Preferred
Stock will increase on a daily basis as dividends accrue on such share and
will decrease only to the extent such dividends are actually paid, all as
provided in Section IV hereof. Notwithstanding the foregoing, in
determining the amount to be paid on a Redemption Date or the amount of
shares to be issued in payment of a dividend on a Dividend Payment Date,
Liquidation Preference shall not be deemed to include any dividends payable
on any such date to the extent such dividends are to be paid on such date
in accordance with the requirements of this Certificate of Designations.
"London Business Day" means any day (i) that is a Business Day and
(ii) on which dealings in United States dollars are transacted in the
London interbank market.
"Original Issue Date" means the date upon which the Series F
Preferred Stock is originally issued by the corporation.
"Original Liquidation Preference" means $1,000 per share of Series F
Preferred Stock.
"Parity Securities" has the meaning specified in Section III(A)(ii)
hereof.
"Permitted Distribution" means (i) the payment or declaration of any
dividend by the corporation or the making by the corporation of any other
distribution or the consummation of an exchange offer, or any combination
of the foregoing, which results in all or a portion of the Capital Stock of
Rainbow Programming Holdings, Inc. or of another entity holding only assets
that were held by Rainbow Programming Holdings, Inc. immediately prior to
the acquisition thereof by such entity being held by all or any portion of
the shareholders of the corporation; (ii) distributions on Parity
Securities payable only in additional Parity Securities, Junior Securities
or warrants, rights, calls or options exercisable for or convertible into
Parity Securities or Junior Securities; (iii) distributions on Junior
Securities payable only in additional Junior Securities or warrants,
rights, calls or options exercisable for or convertible into Junior
Securities; (iv) repurchases or cashing-out of any securities or awards
issued or issuable pursuant to any employee benefit plans of the
corporation or its subsidiaries; or (v) dividends or distributions on, or
repurchases or redemptions of, the Series C Preferred Stock outstanding on
the date of this Certificate of Designations (or on the Series D Preferred
Stock issuable upon conversion of such Series C Preferred Stock).
<PAGE>
5
"Person" means any individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, governmental authority or other entity of whatever nature.
"Quarterly Dividend Period" means the quarterly period commencing on
and including a Dividend Payment Date and ending on and including the day
immediately preceding the next subsequent Dividend Payment Date.
"Redemption Date" has the meaning specified in Section VI(B)(i)(e)
hereof.
"Redemption Notice" has the meaning specified in Section VI(B)(i)
hereof.
"Redemption Price" has the meaning specified in Section VI(A)(i)
hereof.
"Registered Shares" has the meaning specified in Section IV(B)(i)
hereof.
"Registration Statement" means a registration statement on an
appropriate form under the Securities Act of 1933, as amended, relating to
the offer and sale of the corporation's Class A Common Stock issuable on
conversion of the Series F Preferred Stock, as filed by the corporation
with the SEC.
"SEC" means the Securities and Exchange Commission.
"Senior Securities" has the meaning specified in Section III(B)
hereof.
"Series C Preferred Stock" means Series C Cumulative Preferred Stock
of the corporation.
"Series D Preferred Stock" means the Series D Cumulative Preferred
Stock of the corporation.
"Series F Preferred Stock" means the Series F Redeemable Preferred
Stock, par value $.01 per share, of the corporation authorized by this
Certificate of Designations (as such Certificate of Designations may be
amended from time to time).
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than fifty percent (50%)
of the total voting power of shares of Capital Stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by any Person or one or more of the other
Subsidiaries of such Person or a combination thereof.
<PAGE>
6
"Trading Day" means a day on which the principal national securities
exchange on which the Class A Common Stock is listed or admitted to trading
is open for the transaction of business or, if the Class A Common Stock is
not listed or admitted to trading on any national securities exchange, a
Monday, Tuesday, Wednesday, Thursday or Friday on which banking
institutions in the Borough of Manhattan, City and State of New York are
not authorized or obligated by law or executive order to close.
II. DESIGNATION.
The series of preferred stock authorized hereunder shall be designated
as the "Series F Redeemable Preferred Stock." The number of shares constituting
such series shall be 100,000. The par value of the Series F Preferred Stock
shall be $.01 per share and the initial liquidation preference of the Series F
Preferred Stock shall be $1,000.00 per share.
III. RANK.
(A) The Series F Preferred Stock shall rank, with respect to dividend
rights and rights on liquidation, dissolution and winding-up of the affairs of
the corporation:
(i) senior to all classes or series of Common Stock of the
corporation and any Capital Stock other than the Series C Preferred Stock,
the Series D Preferred Stock and any series of Additional Preferred Stock
unless by its express terms such series provides that it ranks junior in
right of payment to the Series F Preferred Stock with respect to dividends
or upon liquidation, dissolution, winding-up or otherwise (collectively
referred to as "Junior Securities"); and
(ii) on a parity with the Series C Preferred Stock, the Series D
Preferred Stock and each class or series of Additional Preferred Stock
which does not provide by its express terms that it ranks junior in right
of payment to the Series F Preferred Stock with respect to dividends or
upon liquidation, dissolution, winding-up or otherwise (collectively
referred to as "Parity Securities").
(B) The corporation shall not create, authorize or issue any class or
series of Capital Stock which ranks senior to the Series F Preferred Stock as
to dividends or upon liquidation, dissolution or winding-up (collectively
referred to as "Senior Securities"), or reclassify any class or series of
Capital Stock into Senior Securities, without the approvals required by Section
VII hereof.
<PAGE>
7
IV. DIVIDENDS.
(A) (i) Beginning on the Original Issue Date, the Holders of
outstanding shares of Series F Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of Directors, out of funds
legally available for the payment of dividends, dividends at the Applicable
Rate. All dividends shall be cumulative and shall be payable quarterly in
arrears on each Dividend Payment Date commencing on the first such date to
occur after the Original Issue Date, in preference to dividends on the
Junior Securities.
(ii) Each dividend payment will include dividends accrued to but
excluding the applicable Dividend Payment Date. Accrued dividends on any
share of Series F Preferred Stock from the Original Issue Date or from the
last date in respect of which dividends have been paid will be calculated
by multiplying the Original Liquidation Preference by an accrued dividend
factor computed by multiplying the Applicable Rate for the applicable
Dividend Period by a fraction the numerator of which is the actual number
of days elapsed in such Dividend Period and the denominator of which is
360.
As used herein, the "Applicable Rate" with respect to any Dividend
Period shall be equal to LIBOR plus the Applicable Spread. LIBOR will be
determined by The Toronto - Dominion Bank, U.S.A. Division, acting as
calculation agent (in such capacity, the "Calculation Agent") for each
applicable Dividend Period in accordance with the following provisions:
(a) For each applicable Dividend Period, LIBOR will be determined
on the applicable Dividend Determination Date (as defined below) on
the basis of the rate for deposits of U.S. dollars having a maturity
of three months commencing on the second London Business Day
immediately following such Dividend Determination Date, which appears
on Telerate Page 3750 as of 11:00 A.M., London time, on such Dividend
Determination Date. Telerate Page 3750 shall mean the page 3750 or its
replacement as provided by the Telerate News Service. If no rate
appears on Telerate Page 3750, LIBOR in respect of such Dividend
Determination Date will be determined as described in (b) below.
(b) On any applicable Dividend Determination Date on which no
rate for deposits of U.S. dollars having a maturity of three months
appears on Telerate Page 3750 as specified in (a) above, LIBOR will be
determined on the basis of the rates at which deposits in U.S.
dollars having a maturity of three months commencing on
<PAGE>
8
the second London Business Day immediately following such Dividend
Determination Date and in a principal amount of not less than
U.S.$1,000,000 that is representative for a single transaction in such
market at such time are offered by four major banks in the London
interbank market selected by the Calculation Agent at approximately
11:00 A.M., London time, on such Dividend Determination Date to prime
banks in the London interbank market. The Calculation Agent will
request the principal London office of each of such banks to provide a
quotation of its rate. If at least two such quotations are provided,
LIBOR in respect of such Dividend Determination Date will be the
arithmetic mean of such quotations. If fewer than two quotations are
provided, LIBOR in respect of such Dividend Determination Date will
be the arithmetic mean of the rates quoted by three major banks in
New York City selected by the Calculation Agent at approximately
11:00 A.M., New York City time, on such Dividend Determination Date
for loans in U.S. dollars to leading European banks having a maturity
of three months commencing on the second London Business Day
immediately following such Dividend Determination Date and in a
principal amount of not less than U.S. $1,000,000 that is
representative for a single transaction in such market at such time;
PROVIDED, HOWEVER, that if fewer than three banks selected as
aforesaid by the Calculation Agent are quoting as mentioned in this
sentence, LIBOR will be LIBOR in effect for the period prior to the
one to which such Dividend Determination Date relates.
For purposes of the foregoing, the "Dividend Determination Date" for
any Dividend Period shall mean the second London Business Day preceding the
Dividend Payment Date commencing such Dividend Period or, in the case of
the Initial Dividend Period, the second London Business Day preceding the
Original Issue Date.
All percentages resulting from any calculations on the Series F
Preferred Stock will be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point, with five one-millionths of a
percentage point being rounded upward (E.G., 4.876545% (or .04876545) being
rounded to 4.87655% (or .0487655)), and all dollar amounts used in or
resulting from such calculations will be rounded to the nearest cent (with
one-half cent being rounded upward).
(B) (i) The amount of dividends accrued on the Series F Preferred
Stock for any period less than a full Dividend Period (including the
Initial Dividend Period) shall be equal to a pro rata portion of the total
dividend payable for the Dividend Period during which such period occurs,
based on the actual number of days elapsed in such period
<PAGE>
9
for which payable and the total number of days in such Dividend Period.
Dividends shall accrue on a daily basis commencing on the Original Issue
Date. Subject to the following sentence, dividends accruing on the Series F
Preferred Stock are payable in cash. Upon written notice given to the
holders of the Series F Preferred Stock no less than five days prior to any
Dividend Payment Date, the corporation may elect in respect of the cash
dividend otherwise payable on such date that such dividend instead be paid
in shares of Class A Common Stock, registered in the names of the Holders
of record as their names shall appear in the stock ledger of the
corporation on the Dividend Record Date, having an aggregate Current Market
Value, as calculated for the relevant Dividend Payment Date, equal to 105%
of the amount of the cash dividend otherwise then due and payable. Unless
the corporation so elects, it shall not be required to make any dividend
payment in Class A Common Stock. The corporation's ability to pay a
dividend in shares of Class A Common Stock rather than cash is conditioned
on such shares being registered under the Securities Act of 1933, as
amended (the "Securities Act"), pursuant to an effective Registration
Statement ("Registered Shares").
(ii) The corporation covenants that all shares of Common Stock issued
as a dividend with respect to the Series F Preferred Stock will be
Registered Shares and, upon issue, will be validly issued, fully paid,
nonassessable, free of preemptive rights and free from all transfer taxes,
liens, charges, security interests and other adverse claims.
(C) Each dividend paid on the Series F Preferred Stock shall be
payable to Holders of record as their names shall appear in the stock
ledger of the corporation on the Dividend Record Date for such dividends,
except that dividends in arrears for any past Dividend Payment Date may be
declared and paid at any time without reference to such regular Dividend
Payment Date to Holders of record on such date not more than sixty (60)
days or less than ten (10) days prior to the date of payment as shall be
determined by the Board of Directors.
(D) [Intentionally left blank.]
(E) All dividends paid with respect to shares of the Series F
Preferred Stock shall be paid pro rata to the Holders entitled thereto
based upon the number of shares of Series F Preferred Stock held by each
such Holder. Dividends shall cease to accrue in respect of any particular
share of Series F Preferred Stock on the day prior to the Redemption Date
with respect thereto.
(F) No full dividends shall be declared by the Board of Directors or
paid or funds set apart for payment by the
<PAGE>
10
corporation on the Series F Preferred Stock or any Parity Securities for
any period unless full cumulative dividends have been or contemporaneously
are declared and paid, or declared and a sum set apart sufficient for such
payment, on the Series F Preferred Stock and any Parity Securities for all
Dividend Periods terminating on or prior to the date of payment of such
full dividends on the Series F Preferred Stock or such Parity Securities.
If any dividends are not paid in full, as aforesaid, upon the shares of the
Series F Preferred Stock and any other Parity Securities, all dividends
declared upon shares of the Series F Preferred Stock and any other Parity
Securities shall be declared pro rata so that the amount of
dividends declared per share on the Series F Preferred Stock and such
Parity Securities shall in all cases bear to each other the same ratio that
accrued dividends per share on the Series F Preferred Stock and such Parity
Securities bear to each other. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or payments
on the Series F Preferred Stock or any other Parity Securities which may be
in arrears.
(G) So long as any shares of the Series F Preferred Stock are
outstanding, except with respect to Permitted Distributions, the
corporation shall not declare, pay or set apart for payment any dividend
on any Junior Securities or make any payment on account of, or set apart
for payment money for a sinking or other similar fund for, the purchase,
redemption or other retirement of, any of the Junior Securities or any
warrants, rights, calls or options exercisable for or convertible into any
of the Junior Securities, or make any distribution in respect thereof,
either directly or indirectly, and whether in cash, obligations or shares
of the corporation or other property, and shall not permit any corporation
or other entity directly or indirectly controlled by the corporation to
purchase or redeem any of the Junior Securities or any warrants, rights,
calls or options exercisable for or convertible into any of the Junior
Securities, unless prior to or concurrently with such declaration, payment,
setting apart for payment, purchase, redemption or distribution, as the
case may be, all accrued and unpaid dividends on shares of the Series F
Preferred Stock not paid on the dates provided for in Section III(A) hereof
(and, to the extent previously due but not yet paid, any and all redemption
payments on the Series F Preferred Stock) shall have been or are
concurrently being paid.
V. PAYMENT ON LIQUIDATION.
(A) Upon any voluntary or involuntary liquidation, dissolution or
winding-up of the affairs of the corporation, the Holders of Series F
Preferred Stock will be entitled to
<PAGE>
11
receive out of the assets of the corporation available for distribution to
the holders of its Capital Stock, whether such assets are capital, surplus
or earnings, an amount in cash equal to the Liquidation Preference, before
any payment shall be made or any assets distributed to the holders of any
of the Junior Securities. Holders of Series F Preferred Stock shall not be
entitled to any other distribution in the event of voluntary or involuntary
liquidation, dissolution or winding-up of the affairs of the corporation.
If upon any voluntary or involuntary liquidation, dissolution or winding-up
of the affairs of the corporation, the assets of the corporation are not
sufficient to pay in full the liquidation payments payable to the holders
of outstanding shares of the Series F Preferred Stock and all Parity
Securities, then the holders of all such shares shall share equally and
ratably in any distribution of assets in proportion to the full Liquidation
Preferences, determined as of the date of such voluntary or involuntary
liquidation, dissolution or winding-up, to which they are entitled.
(B) For the purposes of this Section V only, neither the sale, lease,
conveyance, exchange or transfer (for cash, shares of stock, securities or
other consideration) of all or substantially all of the property or assets
of the corporation nor the consolidation or merger of the corporation with
or into one or more corporations shall be deemed to be a liquidation,
dissolution or winding-up of the affairs of the corporation.
VI. REDEMPTION.
(A) OPTIONAL REDEMPTION. (i) The corporation may, at its option, at
any time redeem, from any source of funds legally available therefor, in
whole or in part, in the manner provided in Section VI (B) hereof, any or
all of the shares of Series F Preferred Stock, at a redemption price,
payable in cash, equal to one hundred percent (100%) of the Liquidation
Preference calculated as of the Redemption Date (the "Redemption Price").
(ii) In the event of a redemption pursuant to Section VI(A)(i) hereof
of only a portion of the then outstanding shares of Series F Preferred
Stock, the corporation shall effect such redemption pro rata according to
the number of shares held by each Holder of such Series F Preferred Stock.
(B) PROCEDURE FOR REDEMPTION. (i) Not more than sixty (60) and not
less than thirty (30) days prior to the date fixed for any redemption of
the Series F Preferred Stock, written notice (the "Redemption Notice")
shall be given by first class mail, postage prepaid, to each Holder of
record on the record date fixed for such redemption of the Series F
Preferred Stock at such Holder's address as the
<PAGE>
12
same appears on the stock ledger of the corporation, PROVIDED, HOWEVER,
that no failure to give such notice nor any deficiency therein shall affect
the validity of the procedure for the redemption of any shares of Series F
Preferred Stock to be redeemed except as to the Holder or Holders to whom
the corporation has failed to give said notice or except as to the Holder
or Holders whose notice was defective. The Redemption Notice shall state:
(a) the redemption is pursuant to VI(A) hereof;
(b) the Redemption Price;
(c) whether all or less than all the outstanding shares of the
Series F Preferred Stock redeemable thereunder are to be redeemed and
the total number of shares of such Series F Preferred Stock being
redeemed;
(d) the number of shares of Series F Preferred Stock held by the
Holder that the corporation intends to redeem;
(e) the date fixed for redemption (the "Redemption Date");
(f) that the Holder is to surrender to the corporation, at the
place or places where certificates for shares of Series F Preferred
Stock are to be surrendered for redemption, its certificate or
certificates representing the shares of Series F Preferred Stock to be
redeemed; and
(g) that dividends on the shares of the Series F Preferred Stock
to be redeemed shall cease to accrue on such Redemption Date unless
the corporation defaults in the payment of the Redemption Price; and
(ii) On or before the Redemption Date, each Holder of Series F
Preferred Stock shall surrender the certificate or certificates
representing such shares of Series F Preferred Stock to the corporation, in
the manner and at the place designated in the Redemption Notice, and on the
Redemption Date the full Redemption Price for such shares shall be payable
in cash to the Person whose name appears on such certificate or
certificates as the owner thereof, and each surrendered certificate shall
be canceled and retired. In the event that less than all of the shares
represented by any such certificate are redeemed, a new certificate shall
be issued representing the unredeemed shares.
(iii) If a Redemption Notice shall have been duly given, and if, on or
before the Redemption Date specified therein, all funds necessary for such
redemption shall have been set aside by the corporation, separate and apart
from
<PAGE>
13
its other funds, in trust for the pro rata benefit of the Holders of the
Series F Preferred Stock called for redemption, so as to be and continue to
be available therefor, then, notwithstanding that any certificate for
shares so called for redemption shall not have been surrendered for
cancellation, all shares so called for redemption shall no longer be deemed
outstanding, and all rights with respect to such shares shall forthwith on
such Redemption Date cease and terminate, except only the right of the
Holders thereof to receive the amount payable on redemption thereof,
without interest.
(iv) If a Redemption Notice shall have been duly given or if the
corporation shall have given to the bank or trust company hereinafter
referred to irrevocable authorization promptly to give such notice, and if
on or before the Redemption Date specified therein the funds necessary for
such redemption shall have been deposited by the corporation with such bank
or trust company in trust for the pro rata benefit of the Holders of the
Series F Preferred Stock called for redemption, then, notwithstanding that
any certificate for shares so called for redemption shall not have been
surrendered for cancellation, from and after the time of such deposit, all
shares so called for redemption shall no longer be deemed to be outstanding
and all rights with respect of such shares shall forthwith cease and
terminate, except only the right of the Holders thereof to receive from
such bank or trust company at any time after the time of such deposit the
funds so deposited, without interest. The aforesaid bank or trust company
shall be organized and in good standing under the laws of the United States
of America or of the State of New York, shall be doing business in the
Borough of Manhattan, The City of New York, shall have capital, surplus and
undivided profits aggregating at least $100,000,000 according to its last
published statement of condition, and shall be identified in the Redemption
Notice. Any interest accrued on such funds shall be paid to the corporation
from time to time. Any funds so set aside or deposited, as the case may be,
and unclaimed at the end of three years from such Redemption Date shall, to
the extent permitted by law, be released or repaid to the corporation,
after which repayment the Holders of the shares so called for redemption
shall look only to the corporation for payment thereof.
VII. VOTING RIGHTS.
(A) The holders of Series F Preferred Stock, except as otherwise
required under Delaware law and as set forth in paragraphs (B), (C) and (D)
below, shall not be entitled or permitted to vote on any matter required or
permitted to be voted upon by the stockholders of the corporation.
<PAGE>
14
(B) Without the approval of Holders of at least 60% of the shares of
Series F Preferred Stock then outstanding, voting or consenting, as the
case may be, as one class, given in person, by written consent or by proxy,
either in writing or by resolution adopted at an annual or special meeting
called for the purpose, the corporation will not, and will not permit any
of its Subsidiaries to:
(i) create, authorize or issue any Senior Securities or any
warrants, rights, calls or options exercisable or exchangeable for or
convertible into, or any obligations evidencing the right to purchase
or acquire any Senior Securities, including in connection with a
merger, consolidation or other reorganization;
(ii) reclassify any Junior Securities, Parity Securities or other
outstanding Capital Stock of the corporation into any Senior
Securities or any warrants, rights, calls or options exercisable or
exchangeable for or convertible into, or any obligations evidencing
the right to purchase or acquire any Senior Securities;
(iii) amend, modify or repeal the Certificate of Incorporation
(including this Certificate of Designations), By-Laws of the
corporation, or any other specified designations, rights, preferences
or powers of the Series F Preferred Stock in a manner adverse to
Holders of Series F Preferred Stock; PROVIDED, HOWEVER, that the
amendment of the provisions of the Certificate of Incorporation so as
to authorize or create, or to increase the authorized amount of, any
Junior Stock or any Parity Stock shall not be deemed to affect
adversely the Holders of Series F Preferred Stock;
(iv) increase the number of shares of Series F Preferred Stock
authorized for issuance; or
(v) merge or consolidate the corporation with or into any other
corporation, unless the resulting corporation will thereafter have no
Senior Securities, and each Holder of Series F Preferred Stock
immediately preceding such merger or consolidation shall receive the
same number of shares, with the same rights and preferences, of the
resulting corporation;
PROVIDED, HOWEVER, that no such consent of the Holders of Series F
Preferred Stock shall be required if, at or prior to the time when such
creation, authorization, issuance, amendment, or repeal is to take effect,
provision is made for the redemption of all shares of Series F Preferred
Stock at the time outstanding.
(C) In the event that the corporation shall, for four consecutive
Quarterly Dividend Periods, fail to declare or
<PAGE>
15
pay dividends on the Series F Preferred Stock as set forth in Section IV(A)
hereof (a "Dividend Default"), then the number of directors constituting
the Board of Directors shall be increased to permit the Holders of the
Series F Preferred Stock to elect one member of the Board of Directors of
the corporation. Holders of a majority of the issued and outstanding shares
of Series F Preferred Stock, voting together with the holders of any Parity
Stock then entitled to elect directors, shall thereupon have the exclusive
right to elect one member of the Board of Directors at any annual or
special meeting of stockholders or at a special meeting of the holders of
Series F Preferred Stock and such Parity Stock called as hereinafter
provided.
(D) The right of the Holders of Series F Preferred Stock to vote
pursuant to Section VII (C) to elect one member of the Board of Directors
as aforesaid shall continue until such time as all accumulated dividends
that are in arrears on the Series F Preferred Stock are paid in full at
which time the special right of the Holders of Series F Preferred Stock to
vote for the election of a director and the term of office of the director
elected by the Holders of the Series F Preferred Stock shall terminate and
the number of directors constituting the Board of Directors shall be
reduced accordingly. At any time after voting power to elect a director
shall have become vested and be continuing in the Holders of Series F
Preferred Stock pursuant to Sections VII (C) and (D), or if vacancies shall
exist in the office of a director elected by the Holders of Series F
Preferred Stock, a proper officer of the corporation may, and upon the
written request of the holders of record of at least twenty percent (20%)
of the shares of Series F Preferred Stock or the holders of such Parity
Stock then outstanding addressed to the Secretary of the corporation shall,
call a special meeting of the Holders of Series F Preferred Stock and
holders of Parity Stock, for the purpose of electing the one director to be
elected by them as herein provided. Any such meeting shall be held at the
earliest practicable date at the place for the holding of the annual
meetings of stockholders. If such meeting shall not be called by the proper
officer of the corporation within twenty (20) days after personal service
of said written request upon the Secretary of the corporation, or within
twenty (20) days after mailing the same within the United States by
certified mail, addressed to the Secretary of the corporation at its
principal executive offices, then the holders of record of at least twenty
percent (20%) of the outstanding shares of Series F Preferred Stock or of
such Parity Stock may designate in writing one of their number to call such
meeting at the expense of the corporation, and such meeting may be called
by the Person so designated upon the notice required for the annual
meetings of stockholders of the corporation and shall be held at the place
for holding the annual meetings of stockholders. Any holder of
<PAGE>
16
Series F Preferred Stock or Parity Stock so designated shall have access to
the list of stockholders to be called pursuant to the provisions hereof.
(E) At any meeting held for the purpose of electing directors at which
the Holders of Series F Preferred Stock and holders of Parity Stock shall
have the right to elect a director as aforesaid, the presence in person or
by proxy of the holders of at least a majority of the outstanding Series F
Preferred Stock or such Parity Stock shall be required to constitute a
quorum.
(F) Any vacancy occurring in the office of a director elected by the
Holders of Series F Preferred Stock and holders of any other class of
Parity Stock may be filled by the remaining directors elected by such
Holders unless and until such vacancy shall be filled by the holders of
Series F Preferred Stock and such other class.
(G) In addition to the foregoing, in the event of a Dividend Default,
holders of Series F Preferred Stock, except as otherwise required under
Delaware law, shall be entitled to vote on any matter required or permitted
to be voted upon by the stockholders of the corporation, voting together
with all such stockholders as a single class; PROVIDED that this voting
right shall not apply to any matter to be voted on by any other class of
Capital Stock (including the Class A Common Stock and the Class B Common
Stock) as a separate class. The right of the Holders of Series F Preferred
Stock to vote as aforesaid shall continue until such time as all
accumulated dividends that are in arrears on the Series F Preferred Stock
are paid in full, at which time such voting right shall terminate.
Notwithstanding the foregoing, the shares of Series F Preferred Stock voted
by any BHC Act Holder on such matters may not constitute more than 4.99% of
the total number of shares of the designated class entitled to vote as
described above.
(H) In any case in which the Holders of Series F Preferred Stock shall
be entitled to vote pursuant to this Section VII or pursuant to Delaware
law, each Holder of Series F Preferred Stock shall be entitled to
twenty (20) votes for each share of Series F Preferred Stock held (subject
to the limitations on BHC Act Holders described above).
<PAGE>
17
VIII. MUTILATED OR MISSING SERIES F PREFERRED STOCK CERTIFICATES.
If any of the Series F Preferred Stock certificates shall be
mutilated, lost, stolen or destroyed, the corporation shall issue, in exchange
and in substitution for and upon cancellation of the mutilated Series F
Preferred Stock certificate, or in lieu of and substitution for the Series F
Preferred Stock certificate lost, stolen or destroyed, a new Series F
Preferred Stock certificate of like tenor and representing an equivalent amount
of shares of Series F Preferred Stock, but only upon receipt of evidence of such
loss, theft or destruction of such Series F Preferred Stock certificate and
indemnity, if requested.
IX. REISSUANCE OF SERIES F PREFERRED STOCK.
Shares of Series F Preferred Stock that have been issued and
reacquired in any manner, including shares purchased or redeemed or exchanged,
shall (upon compliance with any applicable provisions of the laws of the State
of Delaware) have the status of authorized and unissued shares of preferred
stock undesignated as to series and may be redesignated and reissued as part
of any series of Additional Preferred Stock other than the Series F Preferred
Stock.
X. BUSINESS DAY.
If any payment or redemption shall be required by the terms hereof to
be made on a day that is not a Business Day, such payment, redemption or
exchange shall be made on the immediately succeeding Business Day.
XI. HEADINGS OF SUBDIVISIONS.
The headings of various subdivisions hereof are for convenience of
reference only and shall not affect the interpretation of any of the provisions
hereof.
XII. SEVERABILITY OF PROVISIONS.
If any right, preference or limitation of the Series F Preferred Stock
set forth in these resolutions and the Certificate of Designations filed
pursuant hereto (as such Certificate of Designations may be amended from time to
time) is invalid, unlawful or incapable of being enforced by reason of any rule
or law or public policy, all other rights, preferences and limitations set forth
in such Certificate of Designations, as amended, which can be given effect
without the invalid, unlawful or unenforceable right, preference or limitation
shall,
<PAGE>
18
nevertheless remain in full force and effect, and no right, preference or
limitation herein set forth shall be deemed dependent upon any other such right,
preference or limitation unless so expressed herein.
XIII. NOTICE TO THE CORPORATION.
All notices and other communications required or permitted to be given
to the corporation hereunder shall be made by first class mail, postage prepaid,
to the corporation at its principal executive offices (currently located on the
date of the adoption of these resolutions at the following address: Cablevision
Systems Corporation, One Media Crossways, Woodbury, New York 11797, Attention:
General Counsel). Minor imperfections in any such notice shall not affect the
validity thereof.
XIV. LIMITATIONS.
Except as may otherwise be required by law, the shares of Series F
Preferred stock shall not have any powers, preferences or relative,
participating, optional or other special rights other than those specifically
set forth in this resolution (as such resolution may be amended from time to
time) or otherwise in the Certificate of Incorporation of the corporation.
IN WITNESS WHEREOF, this Certificate has been signed on this _____ day
of ________________, 1994.
CABLEVISION SYSTEMS CORPORATION
By:
-------------------------------------
Name:
Title: Vice Chairman
Attest:
- ------------------------------
Robert S. Lemle
Secretary
<PAGE>
EXHIBIT 10.44C
EXECUTION COPY
AMENDMENT NO. 3
AND
WAIVERS
DATED AS OF MARCH 25, 1994
TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF JUNE 24, 1992
CABLEVISION SYSTEMS CORPORATION, a Delaware corporation (the "Company"), the
Restricted Subsidiaries (as defined in the Credit Agreement referred to below),
the banks parties to such Credit Agreement (the "Banks"), BANK OF MONTREAL,
Chicago Branch, THE BANK OF NEW YORK, THE BANK OF NOVA SCOTIA and THE CANADIAN
IMPERIAL BANK OF COMMERCE, as Co-Agents (the "Co-Agents"), and TORONTO DOMINION
(TEXAS), INC., as Agent (the "Agent"), agree as follows:
ARTICLE I
AMENDMENTS AND WAIVERS
Section 1.1. CREDIT AGREEMENT. Reference is made to the Third Amended and
Restated Credit Agreement dated as of June 24, 1992 among the Company, the
Restricted Subsidiaries, the Banks, the Co-Agents and the Agent, as amended by
Amendment No. 1 dated as of August 4, 1992 and Amendment No. 2 dated as of
November 8, 1993 (as so amended, the "Credit Agreement"). Terms used in this
Amendment No. 3 and Waivers (this "Agreement") that are not otherwise defined
herein shall have the meanings given to such terms in the Credit Agreement. The
Credit Agreement as amended by this Agreement is and shall continue to be in
full force and effect and is hereby in all respects ratified and confirmed
(except to the extent any provisions of the Credit Agreement are expressly
waived herein, which waivers shall be effective only in the specific instances
and for the specific purposes provided herein).
Section 1.2. CERTAIN AMENDMENTS AND WAIVERS. Upon and after the Amendment
Effective Date (as defined in Section 1.4(a) hereof):
(a) Section 1.01 of the Credit Agreement shall be amended by (i)
deleting the defined terms "PERMITTED PERCENTAGE" and "PROPOSED DIVIDEND"
contained therein and (ii) inserting the following defined terms in correct
alphabetical order therein:
"REFUNDING PROCEEDS" shall mean, with respect to any Subordinated Debt
permitted under Section 9.11 (iii) hereof or any preferred stock of the Company
permitted under Section 9.22 hereof, (i) the Net Cash Proceeds thereof, but only
to the extent that the Company purchases, acquires, redeems, retires, pay or
prepays Subordinated Debt or preferred stock of the Company with such Net Cash
Proceeds immediately upon receipt thereof or (ii) the proceeds of Syndicated
Revolving Credit Loans reborrowed by the Company in an aggregate amount not to
exceed other Syndicated Revolving Credit Loans that were prepaid with the Net
Cash Proceeds of such Subordinated Debt or preferred stock, but only to the
extent that the Company purchases, acquires, redeems, retires, pays or prepays
Subordinated Debt or preferred stock of the Company with such amounts reborrowed
at any time within the period ending (A) if such amounts reborrowed were prepaid
with Net Cash Proceeds of
<PAGE>
Subordinated Debt, 75 days after the date of the incurrence, issuance or sale of
such Subordinated Debt and (B) if such amounts reborrowed were prepaid with Net
Cash Proceeds of preferred stock of the Company, one year after the incurrence,
issuance or sale of such preferred stock.";
"TOTAL FIXED CHARGES" shall mean, for any period, Total Debt Expense for
such period PLUS all dividends and other distributions in respect of preferred
stock of the Company (other than the Company's 8% Series C Preferred Stock)
during such period PLUS all payments on account of the redemption, retirement or
extinguishment in whole or in part (whether by operation of a sinking fund or
otherwise) of any preferred stock of the Company (other than the Company's 8%
Series C Preferred Stock), excluding any such payments to the extent made with
Refunding Proceeds.";
(b) The defined terms "EFFECTIVE DATE" set forth in Section 1.01 of the
Credit Agreement shall be amended by inserting the following proviso at the
end thereof;
"; PROVIDED, HOWEVER, that such term shall mean the date
of the 1990 Agreement for purposes of such term as used in
the Security Agreement";
(c) The defined term "CASH FLOW RATE" set forth in Section 1.01 of the
Credit Agreement shall be amended by (i) deleting the clause ",
'Indebtedness of CNJ, which includes all Indebtedness under the CNJ
Agreement," contained in the first parenthetical therein and (ii) deleting
the words "such obligations" contained in the first parenthetical therein
and inserting the clause "the obligations under such Guarantee" in lieu
thereof;
(d) The defined term "NET CASH PROCEEDS" set forth in Section 1.01 of
the Credit Agreement shall be amended by deleting the words "common stock"
contained therein and inserting the words "capital stock" in lieu thereof;
(e) The defined term "OPERATING CASH FLOW" set forth in Section 1.01 of
the Credit Agreement shall be amended by inserting the clause "except for
purposes of determining the Cash Flow Ratio at any time," prior to the
defined term "CNJ Operating Cash Flow" contained in the penultimate sentence
thereof;
(f) The defined term "TOTAL AVAILABLE REVOLVING CREDIT COMMITMENT" set
forth in Section 1.01 of the Credit Agreement shall be deleted in its
entirety and the following inserted in lieu thereof:
" 'TOTAL AVAILABLE REVOLVING CREDIT COMMITMENT' shall
mean, at the time of any borrowing of Revolving Credit
Loans, the Total Revolving Credit Commitment less an
amount equal to the excess of (i) the aggregate Net Cash
Proceeds to be used as specified in all notices given by
the Company to the Agent in accordance with Sections
2.04(c)(i)(A) and 2.04(c)(i)(B) hereof MINUS the aggregate
amount of all reductions of the Total Commitment required
by reason of the provisos of such Sections with respect to
such Net Cash Proceeds over (ii) the aggregate amount of
Refunding Proceeds of Subordinated Debt that are such by
virtue of clause (i) of the definition of "Refunding
Proceeds" in Section 1.01 hereof PLUS Revolving Credit
Loans (including the Revolving Credit Loans requested at
such borrowing) the proceeds of which have been or, upon
the date of such borrowing, will be used for the purposes
specified in such notices in accordance with such
Sections.";
(g) The defined term "TOTAL DEBT EXPENSE" set forth in Section 1.01 of
the Credit Agreement shall be amended by deleting the clause "Indebtedness
of CNJ, which includes all Indebtedness under the CNJ Agreement, and
excluding all obligations under any Guarantee permitted under Section
9.12(xi) hereof to the extent that such obligation" contained in the first
parenthetical therein and inserting the following in lieu thereof:
"(i) Indebtedness of CNJ, which includes all Indebtedness
under the CNJ Agreement, (ii) scheduled payments of
principal on Subordinated Debt to
<PAGE>
the extent such payments are made with Refunding Proceeds
and (iii) all obligations under any Guarantee permitted
under Section 9.12(xi) hereof to the extent the obligation
under such Guarantee";
(h) Section 2.04(c)(i) of the Credit Agreement shall be amended by
deleting paragraph (A) thereof in its entirety and inserting the following
in lieu thereof;
"(A) the date of the incurrence, issuance or sale of
any Subordinated Debt permitted under Section 9.11(iii)
hereof, by an amount equal to the excess of (i) the Net
Cash Proceeds thereof over (ii) all or any portion of such
Net Cash Proceeds that, as specified in a notice from the
Company to the Agent, shall, no later than the expiration
of the period ending 75 days after the date of such
incurrence, issuance or sale, constitute Refunding
Proceeds of such Subordinated Debt; PROVIDED, HOWEVER,
that if, upon such expiration, all or any portion of such
Net Cash Proceeds specified in such notice shall not so
constitute Refunding Proceeds, then the Total Commitment
shall be automatically reduced on the day immediately
following the date of such expiration by the amount of
such Net Cash Proceeds that shall not so constitute
Refunding Proceeds;";
(i) Section 3.01(b) of the Credit Agreement shall be amended by deleting
paragraph (iv) thereof in its entirety and inserting the following in lieu
thereof:
"(iv) The Company shall, upon (A) any incurrence,
issuance or sale of any Subordinated Debt permitted under
Section 9.11 (iii) hereof, prepay Syndicated Revolving
Credit loans in an amount equal to the excess of the Net
Cash Proceeds thereof over the amount thereof that
constitutes Refunding Proceeds of such Subordinated Debt
by virtue of clause (i) of the definition of 'Refunding
Proceeds' in Section 1.01 hereof or (B) any sale, transfer
or other disposition permitted under Section 9.15(a)(v)
hereof, prepay Syndicated Revolving Credit Loans in an
amount equal to the Net Cash Proceeds thereof.
Notwithstanding anything in this Agreement to the
contrary, (x) amounts prepaid from the incurrence,
issuance or sale of Subordinated Debt pursuant to clause
(A) above may be reborrowed solely to the extent such
amounts reborrowed constitute Refunding Proceeds of such
Subordinated Debt by virtue of clause (ii) of the
definition of 'Refunding Proceeds' in Section 1.01 hereof
and solely to the extent that the incurrence, issuance or
sale thereof has not resulted in a mandatory reduction of
the Total Commitment pursuant to Section 2.04(c)(i)(A)
hereof and (y) amounts prepaid from the sale, transfer or
other disposition pursuant to clause (B) above may be
reborrowed by the Company solely for the purpose of
effecting acquisitions permitted under Section
9.15(b)(iii) hereof and solely to the extent that such
disposition has not resulted in a mandatory reduction of
the Total Commitment pursuant to Section 2.04(c)(i)(B)
hereof.";
(j) Section 8.12 of the Credit Agreement shall be amended be deleting
the reference to "Section 7.01(n)" contained therein and inserting a
reference to "Section 7.01(m)" in lieu thereof;
(k) Section 9.17 of the Credit Agreement shall be amended be deleting
the clause "permitted by Section 9.18 hereof" contained therein and
inserting the clause "(A) permitted be Section 9.18 hereof, (B) made on
account of the redemption of the Company's 8% Series C Preferred Stock or
(C) made with Refunding Proceeds; in lieu thereof;
(l) Section 9.18 of the Credit Agreement shall be deleted in its
entirety and the following inserted in lieu thereof:
"Section 9.18 DIVIDENDS. neither the company nor any
Restricted Subsidiary will make any payments of dividends
or other distributions in
<PAGE>
respect of any preferred stock of the Company (except to
the extent any such payments are payable in common stock
of the Company) if, at any time thereof and after giving
effect thereto, any Default shall have occurred and be
continuing.";
(m) Section 9.21 of the Credit Agreement shall be amended by inserting
the clause", except to the extent that any such purchase, acquisition,
redemption, retirement, payment or prepayment is made with Refunding
Proceeds" at the end thereof;
(n) Section 9.22 of the Credit Agreement shall be amended by deleting
the second sentence thereof in its entirety and inserting in lieu
thereof:
"In addition, the Company will not amend, modify
or supplement any of the provisions of its charter
in respect of preferred stock of the Company,
except that the Company may (i) file any amendment
or modification thereto or supplement thereof to
permit the issuance of preferred stock of the
Company, PROVIDED that such preferred stock shall
be neither (A) redeemable, payable or required to
be purchased or otherwise retired or extinguished
in whole or in part, or convertible into any
Indebtedness of the Company, at a fixed or
determinable date (whether by operation of a
sinking fund or otherwise), at the option of any
Person other than the Company or upon the
occurrence of a condition not solely within the
control of the Company (such as a redemption
required to be made out of future earnings) nor
(B) convertible into preferred stock of the
Company that may be so retired, extinguished or
converted, in the case of clause (A) or (B) above,
at any time before the date that is three years
after the Commitment Termination Date as in effect
at the time of the issuance of such preferred
stock and (ii) file a certificate of retirement
thereto in respect of (A) the Series A Cumulative
Convertible Preferred Stock and the Series B
Cumulative Convertible Preferred Stock of the
Company and (B) any other series of preferred
stock of the Company the purchase, acquisition,
redemption or retirement of which is permitted by
this Agreement.";
(o) Section 9.25(c) of and Exhibit B to the Credit Agreement shall be
amended by deleting the five references to the defined term "Total Debt
Expense" set forth therein and, in each case, inserting a reference to
the defined term "Total Fixed Charges" in lieu thereof;
(p) The Banks shall waive compliance with the provisions of Section
9.15(b)(iii)(E) of the Credit Agreement that limit the aggregate amount
of cash consideration for acquisitions permitted thereunder during the
fiscal year of the Company ending December 31, 1994 to amounts not to
exceed $100,000,000, such waiver to be granted solely to the extent
necessary to permit the acquisition by the Company of the assets of North
Coast Cable Limited Partnership without reducing such $100,000,000 amount
by the aggregate cash consideration paid by the Company and the
Restricted Subsidiaries in connection with such acquisition, PROVIDED
that such acquisition was otherwise effected in compliance with such
Section 9.15(b)(iii)(E) after giving effect to the waiver of compliance
therewith set forth in Amendment No. 2 and Waiver dated as of November 8,
1993 to the Credit Agreement;
(q) The Banks shall waive compliance with the provisions of Section
9.25(c) of the Credit Agreement that require the ratio of Operating Cash
Flow for the period of two Quarters ending March 31, 1994 to Total Fixed
Charges for such period to be at least 1.20 to 1, such waiver to be
granted only if such ratio is at least 1.05 to 1 for such period.
<PAGE>
Section 1.3. NEW SUBORDINATED DEBT AMENDMENT. Upon and after
the New
Subordinated Debt Amendment Effective Date (as defined in Section
1.4(b) hereof), Section 9.11 of the Credit Agreement shall be amended
by deleting clause (iii) thereof in its entirety and inserting the
following in lieu thereof:
"(iii) Subordinated Debt, PROVIDED that (A) the
terms thereof, and of the Subordinated Debt
Instruments governing and evidencing such
Subordinated Debt, are in form and substance
satisfactory to, and that the proceeds thereof
will be used for purposes approved by, the
Majority Banks and (B) at the time of and
immediately after giving effect to the incurrence,
issuance or sale of such Subordinated Debt, no
Default shall have occurred and be continuing, and
the Company shall have so certified to the Agent;
PROVIDED, HOWEVER, that, for purposes of clause
(A) above, any Subordinated Debt, and the
Subordinated Debt Instruments governing such
Subordinated Debt, shall be deemed to be in form
and substance satisfactory to, and the use of the
proceeds thereof for purposes permitted under this
Agreement shall be deemed approved by, the
Majority Banks if such Subordinated Debt (x) shall
be neither (1) redeemable, payable or required to
be purchased or otherwise retired or extinguished
in whole or in part at a fixed or determinable
date (whether by operation of a sinking fund or
otherwise), at the option of any Person other than
the Company or upon the occurrence of a condition
not solely within the control of the Company (such
as a redemption required to be made out of future
earnings) nor (2) convertible into any other
Indebtedness or capital stock of the Company that
may be so retired, extinguished or converted, in
the case of clause (1) or (2) above, at any time
before the date that is three years after the
Commitment Termination Date as in effect at the
time of the incurrence, issuance or sale of such
Subordinated Debt and (y) shall have terms of
subordination no less favorable to the Banks than
the terms of subordination of the Company's 9 7/8%
Senior Subordinated Debentures due 2023;".
Section 1.4. EFFECTIVE DATES. This Agreement shall become
effective when (a) for all purposes other than Section 1.3 hereof
when (i) each of the Company and the Restricted Subsidiaries shall
have duly executed and delivered this Agreement and (ii) the Agent
and the Majority Banks shall have duly executed, under the caption
"COLUMN A" on the signature pages hereof, and delivered this
Agreement (the "Amendment Effective Date") and (b) for all purposes
other than Section 1.2 hereof when (i) each of the Company and the
Restricted Subsidiaries shall have duly executed and delivered this
Agreement and (ii) the Agent and the Majority Banks shall have duly
executed, under the caption "COLUMN B" on the signature pages hereof,
and delivered this Agreement (the "New Subordinated Debt Effective
Date").
ARTICLE II
MISCELLANEOUS
Section 2.1. GOVERNING LAW. This Agreement shall be construed
in accordance with and governed by the laws of the State of New York.
Section 2.2 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an
original, but all such separate counterparts shall together
constitute but one and the same instrument.
Section 2.3. EXPENSES. The Company hereby agrees to pay or
reimburse the Agent for all reasonable fees and expenses, including
attorneys' fees, incurred in connection with the negotiation,
preparation, execution and delivery of this agreement.
<PAGE>
[THE NEXT PAGE IS A SIGNATURE PAGE]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their duly authorized officers in counterparts all as of the day and
year first above written.
<TABLE>
<S> <C>
CABLEVISION SYSTEMS CORPORATION, for itself and as a General
Partner of Cablevision Finance Limited Partnership
By /s/______________________________________________________
Title: William J. Bell
Vice Chairman
CABLEVISION AREA 9 CORPORATION
CABLEVISION FAIRFIELD CORPORATION
CABLEVISION FINANCE CORPORATION
CABLEVISION LIGHTPATH, INC.
CABLEVISION OF CLEVELAND GP, INC., for itself and as a
General Partner of Cablevision of Cleveland Limited
Partnership
CABLEVISION OF CLEVELAND LP, INC.
CABLEVISION OF CONNECTICUT CORPORATION
CABLEVISION OF MICHIGAN, INC.
CABLEVISION SYSTEMS DUTCHESS CORPORATION
CABLEVISION SYSTEMS EAST HAMPTON CORPORATION
CABLEVISION SYSTEMS GREAT NECK CORPORATION
CABLEVISION SYSTEMS HUNTINGTON CORPORATION
CABLEVISION SYSTEMS ISLIP CORPORATION
CABLEVISION SYSTEMS LONG ISLAND CORPORATION
CABLEVISION SYSTEMS SUFFOLK CORPORATION
CABLEVISION SYSTEMS WESTCHESTER CORPORATION
COMMUNICATIONS DEVELOPMENT CORPORATION
CSC ACQUISITION CORPORATION
CSC ACQUISITION -- MA, INC.
CSC ACQUISITION -- NY, INC.
By /s/______________________________________________________
Title: Vice Chairman
of each of the above-named twenty corporations
CABLEVISION FINANCE LIMITED PARTNERSHIP
By Cablevision Systems Corporation,
as General Partner
CABLEVISION OF CLEVELAND LIMITED PARTNERSHIP
By Cablevision of Cleveland GP, Inc.,
as General Partner
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Column A Column B
------------------------------------ ------------------------------------
[New Subordinated Debt]
<S> <C> <C>
THE TORONTO-DOMINION BANK,
Grand Cayman Islands
Branch, B.W.I.
By /s/ By /s/
--------------------------------- ------------------------------------
Title: Title:
MELISSA B. NIGRO MELISSA B. NIGRO
MGR. SYNDICATIONS & CREDIT ADMIN. MGR. SYNDICATIONS & CREDIT ADMIN.
BANK OF MONTREAL,
Chicago Branch,
as Bank and Co-Agent
By /s/ By /s/
--------------------------------- ------------------------------------
Title: Title:
THE BANK OF NEW YORK,
as Bank and Co-Agent
By /s/ By /s/
--------------------------------- ------------------------------------
Title: Title:
THE BANK OF NOVA SCOTIA,
as Bank and Co-Agent
By /s/ By /s/
--------------------------------- ------------------------------------
Title: Title:
THE CANADIAN IMPERIAL BANK OF
COMMERCE,
as Bank and Co-Agent
By /s/ By /s/
--------------------------------- ------------------------------------
Title: Title:
MELLON BANK, N.A.
By /s/ By /s/
--------------------------------- ------------------------------------
Title: Title:
FIRST VICE PRESIDENT FIRST VICE PRESIDENT
NATIONSBANK OF TEXAS, N.A.
By /s/ By /s/
--------------------------------- ------------------------------------
Title: Title:
THE FIRST NATIONAL BANK OF BOSTON
By /s/ By /s/
--------------------------------- ------------------------------------
Title: Title:
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Column A Column B
------------------------------------ ------------------------------------
[New Subordinated Debt]
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
<S> <C> <C>
By By
--------------------------------- ------------------------------------
Title: Title:
CITIBANK, N.A.
By /s/ By /s/
--------------------------------- ------------------------------------
Title: Title:
ROYAL BANK OF CANADA
By /s/ By /s/
--------------------------------- ------------------------------------
Title: Title:
CHEMICAL BANK
By /s/ By /s/
--------------------------------- ------------------------------------
Title: Title:
Terrence J. Anderson Terrence J. Anderson
VICE PRESIDENT VICE PRESIDENT
BANQUE PARIBAS
By /s/ By /s/
--------------------------------- ------------------------------------
Title: Title:
CONTINENTAL BANK, N.A.
By /s/ By /s/
--------------------------------- ------------------------------------
Title: Title:
CREDIT LYONNAIS,
Cayman Island Branch
By /s/ By /s/
--------------------------------- ------------------------------------
Title: Title:
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ By /s/
--------------------------------- ------------------------------------
Title: Title:
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Column A Column B
------------------------------ -----------------------------
[New Subordinated Debt]
<S> <C> <C>
THE FUJI BANK, LIMITED
By By
------------------------------ -----------------------------
Title: Title:
THE TOKAI BANK, LIMITED,
New York Branch
By /s/ By /s/
------------------------------ -----------------------------
Title: Title:
BARCLAYS BANK PLC,
New York Branch
By /s/ By /s/
------------------------------ -----------------------------
Title: Title:
DIRECTOR DIRECTOR
TORONTO DOMINION (TEXAS),
INC., as Agent
By /s/ By /s/
------------------------------ -----------------------------
Title: Title:
</TABLE>
<PAGE>
EXHIBIT 10.56
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PREFERRED STOCK PURCHASE AGREEMENT
By and Among
CABLEVISION SYSTEMS CORPORATION,
as Issuer,
and
EACH OF THE PURCHASERS REFERRED TO HEREIN
------------------------------
Redeemable Exchangeable Convertible Preferred Stock
------------------------------
Dated as of March 30, 1994
------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
-----------------
PAGE
----
ARTICLE I
DEFINITIONS. . . . . . . . . . . . . . . . . . . 1
Section 1.1. Definitions. . . . . . . . . . . . . . . . . . . 1
ARTICLE II
PURCHASE OF PREFERRED STOCK. . . . . . . . . . . 3
Section 2.1. Purchase of Preferred Stock; the Closing . . . . 3
ARTICLE III
REPRESENTATIONS AND WARRANTIES . . . . . . . . . 4
Section 3.1. Representations and Warranties of the Company. . 4
Section 3.2. Representations and Warranties of the
Purchasers . . . . . . . . . . . . . . . . . . 11
ARTICLE IV
CONDITIONS PRECEDENT TO CLOSING. . . . . . . . . 13
Section 4.1. Conditions Precedent to Obligations of
the Purchasers . . . . . . . . . . . . . . . . 13
Section 4.2. Conditions Precedent to Obligations of
the Company. . . . . . . . . . . . . . . . . . 15
ARTICLE V
COVENANTS. . . . . . . . . . . . . . . . . . . . 15
Section 5.1. Furnishing of Information. . . . . . . . . . . . 15
Section 5.2. Home Office Payments . . . . . . . . . . . . . . 15
Section 5.3. Filing of Exchange Share Certificate of
Designations . . . . . . . . . . . . . . . . . 16
Section 5.4. Annual Tax Adjustment Calculation. . . . . . . . 16
ARTICLE VI
MISCELLANEOUS. . . . . . . . . . . . . . . . . . 16
Section 6.1. Survival of Provisions . . . . . . . . . . . . . 16
Section 6.2. Termination. . . . . . . . . . . . . . . . . . . 16
Section 6.3. No Waiver; Modifications in Writing. . . . . . . 17
Section 6.4. Communications . . . . . . . . . . . . . . . . . 17
Section 6.5. Costs, Expenses and Taxes. . . . . . . . . . . . 17
Section 6.6. Execution in Counterparts. . . . . . . . . . . . 18
Section 6.7. Binding Effect; Assignment . . . . . . . . . . . 18
-i-
<PAGE>
PAGE
SECTION 6.8. GOVERNING LAW. . . . . . . . . . . . . . . . . . 18
Section 6.9. Severability of Provisions . . . . . . . . . . . 18
Section 6.10. Headings . . . . . . . . . . . . . . . . . . . . 18
Section 6.11. Integration. . . . . . . . . . . . . . . . . . . 19
EXHIBITS
Exhibit A Certificate of Designations
Exhibit B Exchange Share Certificate of Designations
Exhibit C Registration Rights Agreement
Exhibit D-1 Opinion of Sullivan & Cromwell, Special
Counsel for the Company
Exhibit D-2 Opinion of Robert S. Lemle, Esq., General
Counsel of the Company
SCHEDULES
Schedule 1 Purchasers
Schedule 2 Material Subsidiaries
Schedule 3.1(c) Subsidiary Minority Interests; Liens
Outstanding Warrants, Options, etc.
Schedule 3.1(g) Litigation
Schedule 3.1(j) Governmental Consents
ANNEX
Annex I Share Legend
-ii-
<PAGE>
PREFERRED STOCK PURCHASE AGREEMENT
PREFERRED STOCK PURCHASE AGREEMENT, dated as of March 30, 1994 (the
"Agreement"), by and among Cablevision Systems Corporation, a Delaware
corporation (the "Company"), and each of the purchasers listed on Schedule 1
hereto (the "Purchasers").
In consideration of the mutual covenants and agreements set forth
herein and for good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
-----------
Section 1.1. DEFINITIONS. As used in this Agreement, and unless the
context requires a different meaning, the following terms have the meanings
indicated:
"Affiliate" means, with respect to any Person, any Person that,
directly or indirectly, controls, is controlled by or is under common control
with such Person. For the purposes of this definition, "control" (including,
with correlative meanings, the terms "controlled by" and "under common control
with") shall mean the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of such Person, whether
through the ownership of voting securities or by contract or otherwise.
"Agreement" means this Agreement, as the same may be amended,
supplemented or modified in accordance with the terms hereof and in effect.
"Business Day" means a day other than a Saturday or a Sunday or other
day on which commercial banks in New York City are authorized or required by law
to close.
"Certificate of Designations" means the Certificate of Designations
setting forth the relative rights, powers and limitations of the Preferred
Stock, the form of which is set forth in Exhibit A to this Agreement.
"Class A Common Stock" means the Class A Common Stock of the Company,
par value $.01 per share.
"Class B Common Stock" means the Class B Common Stock of the Company,
par value $.01 per share.
"Closing" has the meaning provided therefor in Section 2.1(b) of this
Agreement.
<PAGE>
"Closing Date" has the meaning provided therefor in Section 2.1(b) of
this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, and the
rules and regulations thereunder as in effect on the date hereof.
"Commission" means the Securities and Exchange Commission or any
similar agency then having jurisdiction to enforce the Securities Act.
"Common Stock" means the Class A Common Stock and the Class B Common
Stock.
"Company" means Cablevision Systems Corporation, a Delaware
corporation.
"Conversion Agency Agreement" means a conversion agency agreement, in
form reasonably satisfactory to the Company, the holders of a majority of the
Shares and the entity selected by the Company to act as Conversion Agent, as
amended, supplemented or otherwise modified from time to time.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Exchange Share Certificate of Designations" means the Certificate of
Designations setting forth the relative rights, powers and limitations of the
Exchange Share Preferred Stock, the form of which is attached hereto as Exhibit
D.
"Exchange Share Preferred Stock" means the Company's Series F
Redeemable Preferred Stock, having the terms set forth in the Exchange Share
Certificate of Designations.
"FCC" means the Federal Communications Commission.
"Lien" means, with respect to any assets, any mortgage, lien, pledge,
encumbrance, charge or security interest of any kind in or on such asset or the
revenues or income thereon or therefrom.
"Material Subsidiary" means any Subsidiary of the Company (i) the
assets of which represent 10% or more of the assets of the Company and its
Subsidiaries on a consolidated basis as at the end of the most recent fiscal
quarter or (ii) which contributed 10% or more of the gross revenues of the
Company and its subsidiaries on a consolidated basis during the most recent
fiscal quarter, all of which Material Subsidiaries are listed on Schedule 2
hereto. A-R Cable Services, Inc., which
-2-
<PAGE>
is not a consolidated Subsidiary of the Company, shall not be deemed to be a
Material Subsidiary.
"Person" means an individual or a corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock company,
government (or an agency or political subdivision thereof) or other entity of
any kind.
"Preferred Stock" means the Company's Series E Redeemable Exchangeable
Convertible Preferred Stock, having the terms set forth in the Certificate of
Designations.
"Purchaser" means each Person listed on Schedule 1 hereto, and its
permitted successors and assigns under Section 6.7 as provided herein, including
any Person who becomes a party hereto by executing and delivering a signature
page hereto after the date of this Agreement.
"Registration Rights Agreement" means the registration rights
agreement, substantially in the form of Exhibit C hereto, as the same may be
amended, supplemented or otherwise modified in accordance with its terms.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Shares" means the shares of Preferred Stock purchased by the
Purchasers pursuant to this Agreement.
"Subsidiary" means, with respect to any Person, (i) a corporation, a
majority of whose capital stock with voting power, under ordinary circumstances,
to elect directors is at the time, directly or indirectly, owned by such Person,
by a Subsidiary of such Person or by such Person and a Subsidiary thereof or
(ii) any other Person (other than a corporation) in which such Person, a
Subsidiary thereof or such Person and Subsidiary thereof, directly or
indirectly, at the date of determination thereof has at least a majority
ownership interest.
ARTICLE II
PURCHASE OF PREFERRED STOCK
---------------------------
Section 2.1. PURCHASE OF PREFERRED STOCK; THE CLOSING.
(a) Subject to the terms and conditions herein set forth, the Company
agrees that it will sell to each Purchaser and each such Purchaser agrees,
severally and not jointly, that it will purchase from the Company on the Closing
Date the number of shares of Preferred Stock set forth opposite such Purchaser's
name on Schedule 1 hereto at a price per share and for the
-3-
<PAGE>
aggregate purchase price (the "Purchase Price") set forth on Schedule 1.
The Preferred Stock shall have the terms set forth in the Certificate
of Designations.
(b) Unless this Agreement shall have been terminated and the
transactions herein contemplated shall have been abandoned pursuant to Section
6.2 hereof, the closing with respect to the purchase and sale of the Preferred
Stock (the "CLOSING") shall take place on such date (the "CLOSING DATE") and at
such time as the Company shall direct on one Business Day's prior notice to the
Purchasers. The Closing shall occur at the offices of Simpson Thacher &
Bartlett, 425 Lexington Avenue, New York, New York 10017, or at such other place
as the parties may mutually agree. At the Closing, the Company will deliver to
each Purchaser one or more duly executed stock certificates, registered in such
Purchaser's name (or the name of a nominee designated by such Purchaser),
representing the number of shares of Preferred Stock set forth opposite such
Purchaser's name on Schedule 1, against payment by such Purchaser of the
purchase price therefor by wire transfer to the Company in immediately available
funds, in the amount of the Purchase Price therefor, representing payment by
such Purchaser in full for its Preferred Stock.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
------------------------------
Section 3.1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants, as of the date hereof and as of the Closing
Date, as follows:
(a) ORGANIZATION AND GOOD STANDING. Each of the Company and its
Material Subsidiaries is a limited or general partnership or corporation, as the
case may be, duly organized, validly existing and in good standing under the
laws of the State of Delaware or other jurisdiction of its incorporation or
organization. Each of the Company and its Material Subsidiaries is duly
qualified or licensed and in good standing as a foreign corporation, and
authorized to do business, in each jurisdiction in which the ownership or
leasing of its respective properties or the character of its respective
operations makes such qualification necessary, except where failure to obtain
such qualification, license, authorization or good standing would not
individually or in the aggregate reasonably be expected to have a material
adverse effect upon the financial condition, properties, assets, business or
results of operations of the Company and its Subsidiaries (taken as a whole).
Each of the Company and its Material Subsidiaries has all requisite power and
authority to own its respective assets and to carry on its respective businesses
as presently conducted except where a lack of such
-4-
<PAGE>
power or authority would not reasonably be expected to have a material adverse
effect on the financial condition, properties, assets, business or results of
operations of the Company and its Subsidiaries (taken as a whole). The Company
has furnished to any Purchaser which has requested in writing prior to the date
hereof, and to all other Purchasers on the Closing Date, true and correct copies
of the Company's Certificate of Incorporation and By-Laws as in effect on the
date of this Agreement. Prior to the Closing, the Certificate of Designations
will have been filed with the Secretary of State of the State of Delaware in
accordance with Delaware General Corporation Law, and the Company shall have
made no other amendment to or modification of its Certificate of Incorporation
or By-Laws since the date of this Agreement.
(b) CORPORATION AUTHORIZATIONS. The company has all requisite
corporate power and authority to execute, deliver and perform its obligations
under this Agreement and the Registration Rights Agreement. The execution and
delivery by the Company of this Agreement and the Registration Rights Agreement
and the consummation of the transactions contemplated hereby and thereby have
been duly and validly authorized by the Board of Directors of the Company and no
other corporate proceedings on the part of the Company are necessary for the
execution and delivery of this Agreement and the Registration Rights Agreement
and the consummation of the transactions contemplated hereby and thereby on the
Closing Date.
(c) CAPITALIZATION. As of the date hereof (but without giving effect
to any exercise of options or other rights to purchase or acquire capital stock
of the Company pursuant to employee stock option plans from and after March 4,
1994), the authorized capital stock of the Company consists of 50,000,000 shares
of Class A Common Stock, par value $.01 per share (of which 10,866,773 shares
are issued and outstanding), 20,000,000 shares of Class B Common Stock, par
value $.01 per share (of which 12,411,532 shares are issued and outstanding),
and 10,000,000 shares of preferred stock, par value $.01 per share (of which
110,622 shares, designated as Series C Preferred Stock, are issued and
outstanding). All of the outstanding shares of capital stock are duly and
validly issued, fully paid and non-assessable and were not issued in violation
of any of the preemptive rights of other stockholders. Except as set forth on
Schedule 3.1(c), there are no (i) outstanding options, warrants, scrip, rights
to subscribe to, calls or commitments of any character whatsoever, in each case
issued by the Company, relating to, or securities or rights, in each case issued
by the Company, convertible into, shares of any capital stock of the Company, or
contracts, commitments, written understandings or written arrangements by which
the Company is or may become bound to issue additional shares of its capital
stock or options, warrants or rights to purchase or acquire any shares of its
capital stock or (ii) voting trusts or other written agreements or
understandings with respect to the voting of the capital stock
-5-
<PAGE>
of the Company or its Material Subsidiaries to which the Company is a party.
Except as set forth in Schedule 3.1(c), all of the issued and outstanding
capital stock of each of the Company's Material Subsidiaries (other than
directors' qualifying shares, if any) is owned by the Company or its
Subsidiaries, in each case free and clear of any Liens or contractual
restrictions on transfer and all shares of such capital stock are duly and
validly issued, fully paid and non-assessable.
(d) NO MATERIAL ADVERSE CHANGE. Except as disclosed by the Company in
the Form 10-K (as defined below) or in writing prior to the date hereof, except
as to matters of a general economic or political nature or which relate
generally to the cable industry, there has been no material adverse change or
any development which could be reasonably expected to result in a material
adverse change in the financial condition, properties, assets business or
results of operations of the Company and its Subsidiaries (taken as a whole)
subsequent to December 31, 1993.
(e) CONFLICTING AGREEMENTS AND OTHER MATTERS. Assuming the compliance
with state and foreign securities laws by, the accuracy of the representations
and warranties of, and the performance of the agreements by, the Purchasers set
forth in Section 3.2, neither the execution and delivery of this Agreement and
the Registration Rights Agreement, nor fulfillment of nor compliance with the
terms and provisions hereof or thereof, nor the issuance of the Shares, nor the
payment of dividends on the Shares as contemplated by the Certificate of
Designations, will (i) violate any provision of any United States federal or
state statute, rule or regulation or any order, writ, judgment, injunction,
decree, determination or award of any United States federal or state court or
governmental authority presently in effect or in effect on the Closing Date
having applicability to the Company assuming receipt or making of all consents,
approvals, filings, registrations or notices as may be required under any
applicable law in connection with (A) the issuance of the Exchange Share
Preferred Stock or other preferred securities of the Company issuable upon
exchange of the Shares pursuant to Section IX(D) of the Certificate of
Designations ("OTHER EXCHANGE SHARES"), (B) the issuance of Class A Common Stock
upon conversion of the Shares or (C) the fulfillment by the Company of its
obligations under the Registration Rights Agreement and except such violations
as would not reasonably be expected to have a material adverse effect on the
financial condition, properties, assets, business or results of operations of
the Company and its Subsidiaries (taken as a whole), PROVIDED, HOWEVER, that the
Company makes no representation as to the validity of any indemnification or
contribution provision or as to the legality under Section 170 of the Delaware
General Corporation Law of any future dividends, (ii) conflict with or result in
a breach of or constitute a default under the Certificate of Incorporation or
By-laws of the Company, (iii) require any consent, approval or notice (except
for such consents, approvals or notices as have previously been made or
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obtained) under, or conflict with or result in a breach of or constitute a
default under, any note, bond, mortgage, license, indenture or loan or credit
agreement, or any other agreement or instrument, to which the Company or any of
its Material Subsidiaries is a party on the date hereof or by which any of their
respective properties is bound on the date hereof, except such conflicts or
defaults as would not reasonably be expected to have a material adverse effect
on the financial condition, properties, assets, business or results of
operations of the Company and its Subsidiaries (taken as a whole); PROVIDED,
HOWEVER, that the Company makes no representation with respect to any consent,
approval or notice that may be required in the future pursuant to any decision,
directive or other action by any governmental authority made after the Closing
Date, or (iv) result in or require the creation or imposition of any material
Lien upon or with respect to any of the properties now owned by the Company or
any of its respective Material Subsidiaries.
(f) DUE EXECUTION, ETC. This Agreement constitutes, and the
Registration Rights Agreement will constitute when executed and delivered by the
Company on the Closing Date, legal, valid and binding obligations of the
Company, enforceable in accordance with their terms, (i) subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights generally and
to general principles of equity, (ii) except that the remedies of specific
performance and injunctive and other forms of equitable relief are subject to
certain equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought, (iii) except that rights to indemnity and
contribution under the Registration Rights Agreement may be limited by federal
or state securities laws and (iv) assuming this Agreement and the Registration
Rights Agreement constitute legal, valid and binding obligations of the
Purchasers.
(g) LITIGATION, PROCEEDINGS, ETC. Except as set forth on Schedule
3.1(g), there is no action, suit, notice of violation, proceeding or, to the
best knowledge of the Company, any investigation, pending or, to the best
knowledge of the Company, threatened against or affecting the Company or any of
its Material Subsidiaries or any of their respective properties before or by any
court, governmental or administrative agency or regulatory authority (Federal,
State, county, local or foreign) which relates to or challenges the legality,
validity or enforceability of this Agreement, the Registration Rights Agreement
or the Shares or which (i) would (individually or in the aggregate) reasonably
be expected to have a material adverse effect on the financial condition,
properties, assets, business or results of operations of the Company and its
Subsidiaries (taken as a whole), or (ii) would (individually or in the
aggregate) reasonably be expected to impair the ability of the Company to
perform fully on a timely basis any obligations which it has under this
Agreement or the Registration Rights Agreement.
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(h) NO DEFAULT OR VIOLATION. Neither the Company nor any of its
Material Subsidiaries (i) is in default under or in violation of any indenture,
loan or credit agreement or any other agreement or instrument to which it is a
party or by which it or any of its properties is bound, except such conflicts or
defaults as would not reasonably be expected to have a material adverse effect
on the financial condition, properties, assets, business or results of
operations of the Company and its Subsidiaries (taken as a whole), (ii) is in
violation of any order of any court, arbitrator or governmental body, except for
such violations as would not reasonably be expected to have a material adverse
effect on the financial condition, properties, assets, business or results of
operations of the Company and its Subsidiaries (taken as a whole), or (iii) is
in violation of any statute, rule or regulation of any governmental authority
which would (individually or in the aggregate) reasonably be expected to (x)
materially adversely affect the legality, validity or enforceability of this
Agreement or the Registration Rights Agreement, (y) have a material adverse
effect on the financial condition, properties, assets, business, or results of
operations of the Company and its Subsidiaries (taken as a whole) or (z)
materially adversely impair the Company's ability or obligation to perform fully
on a timely basis any obligation which it has under this Agreement or the
Registration Rights Agreement.
(i) STATUS OF SHARES. The Shares have been duly authorized by all
necessary corporate action on the part of the Company, and such Shares, when
delivered to the Purchasers at the Closing against payment therefor as provided
herein, will be validly issued, fully paid and non-assessable, and the issuance
of such Shares is not and will not be subject to preemptive rights of any other
stockholder of the Company. The shares of Class A Common Stock issuable upon
conversion of the Shares and the shares of Exchange Share Preferred Stock or any
Other Exchange Shares issuable upon exchange of the Shares, in any such case, if
and when issued, will have been duly authorized by all necessary corporate
action on the part of the Company, and such shares, if and when delivered to the
holders of the Shares converting or exchanging their Shares, will be validly
issued, fully paid and non-assessable, and the issuance of such shares upon
conversion or exchange of the Shares is not and will not be subject to
preemptive rights of any other stockholder of the Company.
(j) GOVERNMENTAL CONSENTS, ETC. Except as may be required by any
state securities or Blue Sky laws or as disclosed in Schedule 3.1(j) or as may
be required under any applicable law in connection with the fulfillment by the
Company of its obligations under the Registration Rights Agreement, and assuming
the accuracy of the representations and warranties of, and the performance by,
the Purchasers of the representations, warranties and agreements set forth in
Section 3.2, no authorization, consent, approval, waiver, license, qualification
or formal exemption from, nor any filing, declaration, qualification or
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registration with, any court, governmental agency or regulatory authority or any
securities exchange is required in connection with the execution, delivery or
performance by the Company of this Agreement and the issuance, sale or delivery
of (x) the Shares, (y) the issuance of Class A Common Stock upon conversion of
the Shares or (z) the issuance of the Exchange Share Preferred Stock or Other
Exchange Shares, except for the filing with the Secretary of State of the State
of Delaware of the Certificate of Designations or, in the case of clause (z),
the filing with the filing with the Secretary of State of the State of Delaware
of the Exchange Share Certificate of Designations or the certificate of
designations relating to a series of Other Exchange Shares, which will be duly
effected prior to the time required for the due consummation of the transactions
contemplated hereby and by the Certificate of Designations and subject in all
respects to the assumptions and proviso in Section 3.1(e)(i). The Company and
each of its Material Subsidiaries have made all filings and given all notices to
governmental authorities and obtained all necessary ordinances, registrations,
declarations, approvals, orders, trademarks, patents, trade names, service
marks, licenses, trade secrets, consents, qualifications, franchises,
certificates, permits and authorizations from any foreign, Federal, State or
local government or governmental agency, department, commission, board, bureau,
instrumentality or body or any governmental official, body or tribunal, to own
or lease their respective properties and to conduct their respective facilities
and businesses as now being conducted except where failure to do so would not
reasonably be expected to have a material adverse effect on the financial
condition, properties, assets, business or results of operations of the Company
and its Subsidiaries (taken as a whole). All such material authorizations,
ordinances, consents, approvals, waivers, orders, trademarks, patents, trade
names, service marks, trade secrets, franchise, permits, certifications,
licenses, qualifications, exemptions, filings, declarations and registrations
have been obtained or made, as the case may be, and are in full force and effect
and not the subject of any pending or, to the Company's knowledge, threatened
attack by appeal or direct proceeding or otherwise, except those which would not
reasonably be expected to have a material adverse effect on the financial
condition, properties, assets, business or results of operations of the Company
and its Subsidiaries (taken as a whole).
(k) ERISA. In reliance upon and subject to the accuracy of the
representations of the Purchasers contained in Section 3.2(d) hereof, the
execution and delivery of this Agreement and Registration Rights Agreement and
the sale of the Shares to be purchased by the Purchasers is not a prohibited
transaction (within the meaning of Section 406 of ERISA or Section 4975 of the
Code) on the part of the Company or any of its Subsidiaries which is not exempt
by statute, regulation or class exemption. The Company is in compliance in all
material respects with all presently applicable provisions of ERISA; no
"reportable event" (as defined in ERISA) has occurred with
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respect to any "pension plan" (as defined in ERISA) for which the Company would
have any material liability and the Company has delivered to each Purchaser a
copy of any notice of any such "reportable event" filed with the Pension Benefit
Guaranty Corporation within the last three years; the Company has not incurred
and does not expect to incur liability under (i) Title IV of ERISA with respect
to termination of, or withdrawal from, any "pension plan" or (ii) Sections 412
(whether or not waived) or 4971 of the Code; and each "pension plan" for which
the Company would have any liability that is intended to be qualified under
Section 401(a) of the Code is so qualified in all material respects and nothing
has occurred, whether by action or by failure to act, which would cause the loss
of such qualification.
(l) SEC REPORTS. The Company has filed all reports required to be
filed by it within the last 12 months under the Exchange Act on a timely basis,
or has received a valid extension of such time of filing; the Company's draft
Annual Report on Form 10-K for the fiscal year ended December 31, 1993 (a copy
of which has been supplied to the Purchasers) (collectively, the "Form 10-K"),
will, upon filing, comply as to form in all material respects with the rules
and regulations of the Commission under the Exchange Act and will not on the
date of filing 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 the light of the circumstances under which they were
made, not misleading. The Company has not filed any Current Reports on Form 8-K
since December 31, 1993.
(m) FINANCIAL STATEMENTS. The Company's consolidated statements of
condition as at December 31, 1993 and 1992, and the related consolidated
statements of income, changes in stockholders' equity and cash flows for each of
the three years in the period ending December 31, 1993, all as included in the
Form 10-K, have been prepared in all material respects in accordance with
generally accepted accounting principles consistently followed throughout the
periods involved (except as indicated in the notes thereto) and fairly present,
the consolidated financial condition, results of operations, changes in
stockholders' equity and cash flows of the Company and its Subsidiaries as of
the dates and for the periods shown thereby, and the Company had no material
liabilities, contingent or otherwise, not reflected in the balance sheet as of
December 31, 1993, other than any such liabilities incurred in the ordinary
course of business since December 31, 1993.
(n) COMPLIANCE WITH LAWS. The Company and its Material Subsidiaries
are in compliance in all material respects with all laws and regulations,
including, without limitation, those relating to communications, broadcasting,
environmental matters, equal employment opportunity, and employee safety, in all
jurisdictions in which the Company and its Material Subsidiaries are presently
doing business and where the failure
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to effect such compliance would reasonably be expected to have a material
adverse effect on the business, operations or financial condition, properties,
assets, business or results of operations of the Company and its Subsidiaries
(taken as a whole).
(o) TAXES. Federal income tax returns of the Company and its
Material Subsidiaries have been closed through the fiscal year ended December
31, 1991. The Company and its Material Subsidiaries (i) have filed or been
included in, and will, before the Closing Date, file or be included in, all
returns, declarations and reports and information returns and statements
required to be filed by them before the Closing Date relating to any Taxes (as
defined below) with respect to any income, properties or operations of the
Company or any of its Subsidiaries before the Closing Date (collectively,
"RETURNS") and all such Returns were, or will be, correct and complete in all
material respects and (ii) have timely paid or made provision for all Taxes that
have been shown as due and payable on the Returns that have been filed and are
not delinquent in the payment of any amount of Taxes attributable to settlements
with governmental authorities. The term "Tax" or "Taxes" means with respect to
any person a net income, gross income, gross receipts, sales, use, ad valorem,
franchise, profits, license, withholding, payroll, employment, excise,
severance, stamp, transfer, occupation, premium, property or windfall profit
tax, custom duty or other tax, governmental fee or other like assessment or
charge of any kind whatsoever, together with any interest and any penalty,
addition to tax or additional amount imposed by any jurisdiction or other taxing
authority (domestic or foreign) on such person.
(p) INFORMATION PROVIDED TO THE PURCHASERS. No fact (other than
matters of a general economic or political nature or which relate generally to
the cable industry) is known to the Company which materially and adversely
affects the business, assets or liabilities, financial condition, results of
operations or business of the Company and its Material Subsidiaries taken as a
whole which has not been set forth in the Financial Statements or otherwise
disclosed to the Purchasers in writing (in the Form 10-K or otherwise) prior to
the Closing Date.
Section 3.2. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.
(a) INVESTMENT INTENT. Each Purchaser, severally and not jointly and
as to itself only, represents and warrants to, and covenants and agrees with,
the Company that the Preferred Stock to be acquired by it hereunder is being
acquired for its own account for investment and with no intention of
distributing or reselling such Preferred Stock or any part thereof or interest
therein in any transaction which would be in violation of the securities laws of
the United States of America or any State. Each Purchaser acknowledges and
agrees that the certificates representing the Shares shall bear a legend
substantially in the
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form of Annex I hereto. Each Purchaser, severally and not jointly and as to
itself only, represents and warrants to the Company that it has not offered any
of the Shares, Exchange Shares, Other Exchange Shares or shares of Class A
Common Stock to any Person, except to not more than five "accredited investors"
as defined in Rule 501(a) under the Securities Act that are financial
institutions.
(b) ACCREDITED INVESTOR. Each Purchaser, severally and not jointly
and as to itself only, represents and warrants to, and covenants and agrees
with, the Company that (i) at the time it was offered the Shares, it was, (ii)
at the date hereof, it is, and (iii) at the Closing Date, it will be, an
"accredited investor" as defined in Rule 501(a) under the Securities Act, and
has such knowledge, sophistication and experience in business and financial
matters so as to be capable of evaluating the merits and risks of the
prospective investment in the Preferred Stock, and has so evaluated the merits
and risks of such investment, is able to bear the economic risk of such
investment and, at the present time, is able to afford a complete loss of such
investment.
(c) AUTHORITY. Each Purchaser, severally and not jointly and as to
itself only, represents and warrants to the Company that (i) the purchase of the
indicated Shares by it has been duly and properly authorized and this Agreement
has been duly executed and delivered by it or on its behalf and constitutes the
valid and legally binding obligation of such Purchaser, enforceable against the
Purchaser in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights generally and to
general principles of equity; (ii) neither the execution and delivery of this
Agreement and the Registration Rights Agreement nor the fulfillment of nor
compliance with the terms and provisions hereof or thereof, nor the purchase of
the indicated Shares conflicts with or violates its charter, by-laws or any law,
regulation or court order applicable to it; and (iii) the purchase of the
indicated Shares does not impose any penalty or other onerous condition on such
Purchaser under or pursuant to any applicable law or governmental regulation.
(d) PROHIBITED TRANSACTIONS. Each Purchaser, severally and not
jointly and as to itself only, also represents and warrants to the Company that
the Shares to be purchased by it are not being acquired, directly or indirectly,
with the assets of any "employee benefit plan", within the meaning of Section
3(3) of ERISA (a "Benefit Plan") or, if the assets of a Benefit Plan are being
used, directly or indirectly, for such acquisition, neither the acquisition nor
holding of such Shares will result in a nonexempt prohibited transaction under
ERISA or the Code.
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(e) ACCESS TO INFORMATION. Each Purchaser acknowledges that it has
been afforded (i) the opportunity to ask such questions as it has deemed
necessary of, and to receive answers from, representatives of the Company
concerning the terms and conditions of the offering of the Preferred Stock and
the merits and risks of investing in the Preferred Stock; (ii) access to
information about the Company and the Company's financial condition, results of
operations, business, properties, management and prospects sufficient to enable
it to evaluate its investment in the Preferred Stock; and (iii) the opportunity
to obtain such additional information which the Company possesses or can acquire
without unreasonable effort or expense.
ARTICLE IV
CONDITIONS PRECEDENT TO CLOSING
Section 4.1 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE PURCHASERS.
The obligation of each Purchaser to purchase the Shares to be purchased by it
hereunder is subject, on the Closing Date, to the prior or simultaneous
satisfaction or waiver of the following conditions:
(a) Such Purchaser shall have received opinions, addressed to it and
each other Purchaser and dated the Closing Date, of Sullivan & Cromwell, special
counsel for the Company, and Robert S. Lemle, Esq., General Counsel of the
Company, substantially in the form of Exhibits D-1 and D-2 hereto.
(b) The representations and warranties made by the Company herein
shall be true and correct in all material respects (except for changes permitted
or contemplated by this Agreement) on and as of the Closing Date with the same
effect as though such representations and warranties had been made on and as of
the Closing Date and the Company shall have complied in all material respects
with all agreements hereunder required to be performed by it at or prior to the
Closing Date.
(c) Except as disclosed by the Company in the Form 10-K or in writing
prior to the date hereof, and except as to matters of a general economic or
political nature or which relate generally to the cable industry, there shall
not have occurred any material adverse change or any development involving a
prospective material adverse change in the financial condition, business,
assets, properties or results of operations of the Company and its Subsidiaries
(taken as a whole) subsequent to December 31, 1993.
(d) As to each Purchaser, the purchase of and payment for the Shares
to be purchased by such Purchaser hereunder (i) shall not be prohibited or
enjoined (temporarily or permanently) by any applicable law or governmental
regulation and (ii) shall not subject such Purchaser to any penalty, or in its
reasonable
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judgment, other onerous condition under or pursuant to any applicable law or
governmental regulation that would materially reduce the benefits to the
Purchaser of the purchase of the Shares (PROVIDED, HOWEVER, that such
regulation, law or onerous condition was not in effect in such form at the date
of this Agreement).
(e) The Certificate of Designations shall have been filed with the
Secretary of State of Delaware and become effective in accordance with the
Delaware General Corporation Law.
(f) The Closing Date shall not be later than 5:00 P.M., New York City
time, on April 15, 1994.
(g) On the Closing Date, such Purchaser shall have received a
certificate, dated the Closing Date, signed by the chairman or a vice chairman
of the board of directors of the Company or the president or chief executive
officer of the Company and by the chief financial officer of the Company to the
effect set forth in Sections 4.1(b), (c) and (k).
(h) On the Closing Date, such Purchaser shall have received a
certificate, dated the Closing Date, signed by the secretary or an assistant
secretary of the Company and certifying (i) that attached thereto is a true,
complete and correct copy of (A) the Company's Certificate of Incorporation and
By-Laws and (B) resolutions duly adopted by the Board of Directors of the
Company authorizing the execution and delivery of this Agreement and the
Registration Rights Agreement and the issuance of the Preferred Stock, (ii) the
incumbency of officers executing this Agreement and the Registration Rights
Agreement, and (iii) that attached thereto is a specimen of the stock
certificate for the Preferred Stock.
(i) The Company shall have entered into the Registration Rights
Agreement for the benefit of the Purchasers, and such Purchaser shall have
received a copy of such Registration Rights Agreement duly executed by the
Company in favor of such Purchaser.
(j) The Company shall, on or before the Closing Date, repurchase,
repay or redeem (or take irrevocable actions to do so) $100,000,000 aggregate
principal amount of the Company's indebtedness, which repurchase, repayment or
redemption may be effected by a temporary repayment of the Company's revolving
credit facility.
(k) SIMULTANEOUS CLOSINGS. On the Closing Date the Company shall
issue and sell, and the Purchaser shall purchase, Shares having an aggregate
liquidation preference not less than $100,000,000.
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Section 4.2. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY. The
obligation of the Company to issue and sell the Preferred Stock to be issued by
it hereunder is subject, as to each Purchaser severally and not jointly, on the
Closing Date, to the prior or simultaneous satisfaction or waiver of the
following conditions:
(a) The representations and warranties made by such Purchaser herein
shall be true and correct in all material respects (except for changes expressly
provided for in this Agreement) on and as of the Closing Date with the same
effect as though such representations and warranties had been made on and as of
the Closing Date.
(b) As to the Company, the sale of the Preferred Stock hereunder (i)
shall not be prohibited or enjoined (temporarily or permanently) by any
applicable law or governmental regulation and (ii) shall not subject the Company
to any penalty, or in its reasonable judgment, other onerous condition under or
pursuant to any applicable law or governmental regulation that would materially
reduce the benefits to the Company of the sale of the Shares to such Purchaser
(PROVIDED, HOWEVER, that such regulation, law or onerous condition was not in
effect in such form at the date of this Agreement).
(c) The Closing Date shall not be later than 5:00 P.M., New York City
time, on April 15, 1994.
(d) The Certificate of Designations shall have been filed with the
Secretary of State of Delaware and become effective in accordance with the
Delaware General Corporation Law.
ARTICLE V
COVENANTS
Section 5.1. FURNISHING OF INFORMATION. As long as a Purchaser owns
Preferred Stock, the Company will promptly furnish to such Purchaser all reports
filed by it pursuant to Section 13(a) or 15(d) of the Exchange Act (or if the
Company is not as the time required to file reports pursuant to said Section
13(a) or 15(d), annual and quarterly reports comparable to those required by
Sections 13(a) or 15(d) of the Exchange Act), and any compliance certificates
delivered by it pursuant to any agreement or instrument relating to senior
indebtedness of the Company.
Section 5.2. HOME OFFICE PAYMENTS. As long as a Purchaser shall hold
shares of Preferred Stock with an original aggregate purchase price of
$5,000,000 or more, the Company will pay all amounts payable with respect to
such Shares (other than amounts payable upon redemption which shall be payable
against surrender of the Preferred Stock certificates) before 12:00 noon,
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New York time, on the date any such payment is due, by wire transfer of
immediately available funds to the account of such Purchaser in a bank in the
United States or to such other account in the United States as, in any such
case, such Purchaser may designate in writing to the Company from time to time a
reasonable time prior to the payment date.
Section 5.3. FILING OF EXCHANGE SHARE CERTIFICATE OF DESIGNATIONS.
Not later than 30 days after the Closing Date, the Company shall file the
Exchange Share Certificate of Designations, substantially in the form attached
hereto as Exhibit B, with the Secretary of State of the State of Delaware.
Section 5.4. ANNUAL TAX ADJUSTMENT CALCULATION. As soon as
practicable after the time of the filing of the U.S. federal income tax return
(the "Return") of the Company beginning with the first Return filed after the
Closing, the Company will provide annually to the Holder a written notice
describing the amounts that would be payable by the Company to the Holder with
respect to the Tax Adjustment for such Return year.
ARTICLE VI
MISCELLANEOUS
Section 6.1. SURVIVAL OF PROVISIONS. The representations, warranties
and covenants of the Company and the Purchasers made herein and each of the
provisions of Articles V and VI shall remain operative and in full force and
effect regardless of (a) any investigation made by or on behalf of any Purchaser
or the Company, as the case may be, or (b) acceptance of any of the Preferred
Stock and payment by the Purchasers therefor and retirement thereof.
Section 6.2. TERMINATION. This Agreement may be terminated (as
between the party electing so to terminate it and the counterparty to which
termination is directed) by giving written notice of termination to the
applicable counterparty at any time prior to the Closing Date:
(a) By the Company if any of the conditions specified in Section
4.2 of this Agreement has not been met or waived by the Company
pursuant to the terms of this Agreement by 3:00 P.M., New York City
time on April 15, 1994; or
(b) By any Purchaser if any of the conditions specified in
Section 4.1 of this Agreement has not been met or waived by such
Purchaser pursuant to the terms of this Agreement by 3:00 P.M., New
York City time on April 15, 1994.
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Section 6.3. NO WAIVER; MODIFICATIONS IN WRITING.
(a) No failure or delay on the part of the Company or any Purchaser
in exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies provided for herein are cumulative
and are not exclusive of any remedies that may be available to the Company or
any Purchaser at law or in equity. No waiver of or consent to any departure by
the Company or any Purchaser from any provision of this Agreement shall be
effective unless signed in writing by the Company on the one hand or Purchasers
holding 60% of the Shares calculated on the basis of liquidation preferences,
PROVIDED that notice of any such waiver shall be given to each party hereto as
set forth below. Except as otherwise provided herein, no amendment,
modification or termination of any provision of this Agreement shall be
effective unless signed in writing by or on behalf of the Company on the one
hand or Purchasers holding 60% of the Shares. Any amendment, supplement or
modification of or to this Agreement, any waiver of any provision of this
Agreement, and any consent to any departure from the terms of any provision of
this Agreement, shall be effective only in the specific instance and for the
specific purpose for which made or given. Except where notice is specifically
required by this Agreement, no notice to or demand on any party hereto in any
case shall entitle any other party hereto to any other or further notice or
demand in similar or other circumstances.
Section 6.4. COMMUNICATIONS. All notices and demands provided for
hereunder shall be in writing, and shall be given by registered or certified
mail, return receipt requested, telex, telegram, telecopy, courier service or
personal delivery, and, if to any Purchaser, addressed to such Purchaser as
shown on the execution pages hereof or to such other address as such Purchaser
may designate to the Company in writing and, if to the Company shall be given
at: One Media Crossways Woodbury, New York 11797 Attention: General Counsel,
or to such other address as the Company may designate in writing, and shall be
deemed given when received.
Section 6.5. COSTS, EXPENSES AND TAXES. The Company shall pay or
reimburse each of the Purchasers for (a) the reasonable fees and expenses of
counsel to the Purchasers in connection with (i) the negotiation, preparation,
execution and delivery of this Agreement, the Registration Rights Agreement and
the other documents contemplated hereby or referred to herein or therein, and
the issuance of the Shares and (ii) any amendment, modification or waiver of any
of the terms of this Agreement, the Registration Rights Agreement or any of such
other documents, (b) all reasonable costs and expenses of the Purchasers
(including reasonable counsels' fees) in connection with the enforcement of this
Agreement, the Registration Rights Agreement and the other
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documents contemplated by or referred to herein or therein in the event of an
enforcement action arising from any bankruptcy or insolvency of the Company or
from any action or dispute between the Company and any of its creditors in which
the Purchasers reasonably determine that their intervention is reasonably
required in order to protect their rights and interests hereunder or thereunder;
and (c) all stamp, documentary or other similar taxes, assessments or charges
levied by any governmental or revenue authority in respect of this Agreement,
the Registration Rights Agreement or any other document referred to herein.
Section 6.6 EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement.
Section 6.7. BINDING EFFECT; ASSIGNMENT. The rights and obligations
of any Purchaser under this Agreement may not be assigned to, or assumed by, as
the case may be, any other Person except that a Purchaser may assign its rights
and obligations under Article V to a Permitted Transferee (as defined in the
Certificate of Designations) and the Company may assign its rights and
obligations with the prior written consent of Purchasers holding 60% or more of
the Shares, which consent shall not be unreasonably withheld. Except as
expressly provided in this Agreement, this Agreement shall not be construed so
as to confer any right or benefit upon any Person other than the parties to this
Agreement, and their respective successors and permitted assigns. This
Agreement shall be binding upon the Company and each Purchaser, and their
respective successors and permitted assigns.
SECTION 6.8. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
Section 6.9 SEVERABILITY OF PROVISIONS. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 6.10. HEADINGS. The Article and Section headings and Table
of Contents used or contained in this Agreement are for convenience of reference
only and shall not affect the construction of this Agreement.
-18-
<PAGE>
Section 6.11 INTEGRATION. This Agreement (including the exhibits and
schedules hereto) constitutes the entire agreement among the parties with
respect to the purchase and sale of the Preferred Stock and there are no
promises or undertakings with respect thereto relative to the subject matter
hereof not expressly set forth or referred to herein or in the Registration
Rights Agreement.
-19-
<PAGE>
PREFERRED STOCK PURCHASE AGREEMENT SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by its officers hereunto duly authorized, as of the date first above
written.
CABLEVISION SYSTEMS CORPORATION
By: /s/
___________________________________
Name:
Title:
-20-
<PAGE>
PREFERRED STOCK PURCHASE AGREEMENT SIGNATURE PAGE
Accepted and Agreed as of
the date first above written
TORONTO-DOMINION INVESTMENTS, INC.
By: /s/
______________________________
Name:
Title:
Address:
909 Fannin Street
Suite 1700
Houston, Texas 77010
Telecopier: (713) 951-9921
Attention: Ms. Carol Clause, President
-21-
<PAGE>
EXHIBIT 10.57
REGISTRATION RIGHTS AGREEMENT
By and Among
CABLEVISION SYSTEMS CORPORATION,
as Issuer
and
EACH OF THE PURCHASERS
REFERRED TO HEREIN
____________________
Dated as of March 30, 1994
____________________
<PAGE>
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINED TERMS . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Certain Definitions . . . . . . . . . . . . . . . . . . 1
1.2 Other Definitional Provisions . . . . . . . . . . . . . 4
SECTION 2. REGISTRATION UNDER THE SECURITIES ACT . . . . . . . . . . . . 5
2.1 Demand Registration . . . . . . . . . . . . . . . . . . 5
2.2 Automatic Registration. . . . . . . . . . . . . . . . . 5
2.3 Registration of Dividend Shares . . . . . . . . . . . . 6
2.4 Change of Control Registration. . . . . . . . . . . . . 7
2.5 Registration of Other Exchange Shares . . . . . . . . . 7
2.6 Costs and Expenses, etc.. . . . . . . . . . . . . . . . 7
2.7 Extension . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 3. REGISTRATION PROCEDURES . . . . . . . . . . . . . . . . . . . 8
3.1 Procedures. . . . . . . . . . . . . . . . . . . . . . . 8
3.2 Holders' Obligations. . . . . . . . . . . . . . . . . . 11
3.3 Selection of Underwriters, etc. . . . . . . . . . . . . 13
SECTION 4. LIMITATIONS ON SALE RIGHTS. . . . . . . . . . . . . . . . . . 13
4.1 Notification of Sales . . . . . . . . . . . . . . . . . 13
4.2 Extension of Sale Window. . . . . . . . . . . . . . . . 14
4.3 Commencement of New Sale Window . . . . . . . . . . . . 14
4.4 Certain Sales . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5. INDEMNIFICATION; CONTRIBUTION . . . . . . . . . . . . . . . . 14
5.1 Indemnification by the Company. . . . . . . . . . . . . 14
5.2 Indemnification by Holders. . . . . . . . . . . . . . . 15
5.3 Conduct of Indemnification Proceedings. . . . . . . . . 15
5.4 Contribution. . . . . . . . . . . . . . . . . . . . . . 16
SECTION 6. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 17
6.1 Commission Filings. . . . . . . . . . . . . . . . . . . 17
6.2 Remedies. . . . . . . . . . . . . . . . . . . . . . . . 17
6.3 No Inconsistent Agreements. . . . . . . . . . . . . . . 17
6.4 Amendments and Waivers. . . . . . . . . . . . . . . . . 18
6.6 Successors and Assigns. . . . . . . . . . . . . . . . . 18
6.7 Severability. . . . . . . . . . . . . . . . . . . . . . 18
6.8 Headings. . . . . . . . . . . . . . . . . . . . . . . . 18
6.9 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . 19
6.10 Counterparts. . . . . . . . . . . . . . . . . . . . . . 19
6.11 Entire Agreement. . . . . . . . . . . . . . . . . . . . 19
-i-
<PAGE>
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of March 30, 1994 among
Cablevision Systems Corporation, a Delaware corporation (the "COMPANY"), and the
persons listed on schedule 1 hereto (each, a "PURCHASER"; collectively, the
"PURCHASERS").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the parties hereto have entered into a Preferred Stock
Purchase Agreement dated as of the date hereof (the "STOCK PURCHASE AGREEMENT"),
which provides for the sale by the Company to the Purchasers of the Company's
Series E Redeemable Exchangeable Convertible Preferred Stock, par value $.01 per
share (the "SHARES"); and
WHEREAS, in order to induce the Purchasers to enter into the Stock
Purchase Agreement, the Company has agreed to provide the registration rights
set forth in this Agreement, the execution of which is a condition to the
closing under the Stock Purchase Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. DEFINED TERMS
1.1 CERTAIN DEFINITIONS. (a) Unless otherwise defined herein, terms
which are defined in the Certificate of Designations (as defined below) and used
herein are so used as so defined.
(b) The following terms shall have the following meanings:
"AGREEMENT" shall mean this Registration Rights Agreement, as amended,
supplemented or otherwise modified from time to time.
"CERTIFICATE OF DESIGNATIONS" shall mean the certificate of
designations relating to the Shares, the form of which is attached as
Exhibit A to the Stock Purchase Agreement.
"CLASS A COMMON STOCK" shall mean the Class A Common Stock, par value
$.01 per share, of the Company.
"CLOSING DATE" shall mean the Closing Date as defined in the Stock
Purchase Agreement.
"COMMISSION" shall mean the Securities and Exchange Commission.
<PAGE>
2
"CONVERSION SHARES" shall mean the shares of Class A Common Stock,
which are issuable from time to time upon conversion of the Shares in
accordance with the Certificate of Designations.
"COMPANY" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"DIVIDEND SHARES" shall mean the shares of Class A Common Stock, par
value $.01 per share, of the Company, which may be issued by the Company
from time to time in lieu of cash as dividends on the Shares or on Exchange
Shares in accordance with the certificate of designations for any such
series of preferred stock of the Company.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"HOLDER" shall mean the Purchasers and such of their respective
permitted successors and Permitted Transferees who acquire Shares, Exchange
Shares and/or Conversion Shares from such Purchasers in accordance with and
subject to the terms of the Stock Purchase Agreement and the Certificate of
Designations.
"PERSON" shall mean an individual, partnership, corporation, trust, or
unincorporated organization, or a government or agency or political
subdivision thereof.
"PROSPECTUS" shall mean the prospectus included in the Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement with respect to the
terms of the offering of any of the Exchange Shares and/or Conversion
Shares covered by the Registration Statement, and by all other amendments
and supplements to such prospectus, including post-effective amendments,
and in each case including all material incorporated by reference therein.
"PURCHASERS" shall have the meaning set forth in the preamble.
"REGISTER", "REGISTERED" and "REGISTRATION" refer to a registration of
Registrable Securities effected by preparing and filing a registration
statement in compliance with the Securities Act and the declaration or
ordering of the effectiveness of such registration statement.
"REGISTRABLE SECURITIES" shall mean any Conversion Shares, Exchange
Shares or securities of the Company issuable upon exchange of the Shares
pursuant to Section IX(D) of the Certificate of Designations ("Other
Exchange Shares") at any time owned or held by a Holder, or to be
<PAGE>
3
owned or held by a Holder upon the conversion or exchange of the Shares
pursuant to the Certificate of Designations; PROVIDED that, as to any
particular securities, such securities will cease to be Registrable
Securities when (i) they have been sold to the public pursuant to an
effective registration statement or pursuant to Rule 144 promulgated under
the Securities Act by the Commission or any similar rule then in effect,
(ii) they have not been disposed of pursuant to an effective Registration
Statement within three years from the date such Registration Statement is
declared effective by the Commission, or such longer period as the
Company's obligation to keep such Registration Statement effective is
extended in accordance with Section 3.2(c) hereof, or (iii) such
Registrable Securities shall have ceased to be outstanding under the
Certificate of Designations or the certificate of designations under which
the Exchange Shares or Other Exchange Shares are issued.
"REGISTRATION EXPENSES" shall mean any and all expenses incident to
performance of or compliance with this Agreement by the Company, including
without limitation: (i) all Commission or National Association of
Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or
blue sky laws (including reasonable fees and disbursements of counsel in
connection with blue sky qualification of any of the Registrable
Securities), (iii) all expenses incurred by the Company in preparing,
printing and distributing any Registration Statement, any Prospectus, any
amendments or supplements thereto, and other documents relating to the
performance of and compliance with this Agreement by the Company, (iv) all
fees and expenses incurred by the Company in connection with the listing,
if any, of the Registrable Securities on any securities exchange or
quotation system, (v) the fees and disbursements of counsel for the Company
and of the independent public accountants of the Company, including the
expenses of any special audits or "cold comfort" letters required by or
incident to such performance and compliance, and (vi) the reasonable fees
and expenses of one counsel to the Holders, which counsel shall be selected
by the Required Holders; PROVIDED that underwriting discounts and selling
commissions, fees and expenses and any transfer taxes on any Holder's
Registrable Securities incurred in connection with any registration and
sale of Registrable Securities shall not be Registration Expenses.
"REGISTRATION STATEMENT" shall mean a registration statement of the
Company on an appropriate form under the Securities Act, as filed by the
Company with the Commission, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
<PAGE>
4
"REQUIRED HOLDERS" shall mean the Holders of 60% of the aggregate
number of Shares, Exchange Shares and Imputed Shares (as defined below)
outstanding and, for purposes of Section 6.2, a majority of the Shares,
Exchange Shares and Imputed Shares affected by any amendment, modification,
supplement, waiver or consent to departure referred to therein. For
purposes of this definition, (i) "IMPUTED SHARES" means the Conversion
Shares but holders of Conversion Shares shall, for purposes of computations
involving Required Holders, act as holders of Imputed Shares on the basis
of the average rate at which Shares were converted into Imputed Shares and
Conversion Shares shall cease to be Imputed Shares when they are no longer
Registrable Securities and (ii) Shares, Exchange Shares and Conversion
Shares owned of record or beneficially by the Company or any affiliate of
the Company shall be disregarded and deemed not to be outstanding for
purposes of this definition.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended
from time to time.
"SHARES" shall have the meaning set forth in the preamble.
"STOCK PURCHASE AGREEMENT" shall have the meaning set forth in the
preamble.
"UNDERWRITER" shall mean each underwriter, including a managing
underwriter, of an Underwritten Offering. Any managing underwriter of an
offering of Registrable Securities must be a nationally recognized
investment banking firm in good regulatory standing in all appropriate
jurisdictions and reasonably acceptable to the Company.
"UNDERWRITTEN OFFERING" shall mean a sale of Registrable Securities by
the Holders thereof to an Underwriter or Underwriters for reoffering to the
public.
1.2 OTHER DEFINITIONAL PROVISIONS. (a) Terms defined in the
singular shall have a comparable meaning when used in the plural, and vice
versa.
(b) All matters of an accounting nature in connection with this
Agreement and the transactions contemplated hereby shall be determined in
accordance with generally accepted accounting principles.
(c) As used herein, the neuter gender shall also denote the masculine
and feminine, and the masculine gender shall also denote the neuter and
feminine, where the context so permits.
(d) The words "hereof," "herein" and "hereunder", and words of
similar import, when used in this Agreement shall refer
<PAGE>
5
to this Agreement as a whole and not to any particular provision of this
Agreement, and section, subsection, paragraph, schedule and exhibit references
are to this Agreement unless otherwise specified.
SECTION 2. REGISTRATION UNDER THE SECURITIES ACT
2.1 DEMAND REGISTRATION. (a) From and after the Closing Date, upon
the written request of the Required Holders, the Company shall cause to be
registered in accordance with Section 2.1(c) an indeterminate number of
Registrable Securities which are Exchange Shares, which Registrable Securities
shall have a proposed maximum aggregate offering price of at least $125,000,000
(the "DEMAND SHARES").
(b) To facilitate the requested registration under Section 2.1(a),
the Company shall cause the registration statement to be filed under this
Section 2.1 to be a "shelf" registered offering pursuant to Rule 415 of the
Securities Act (unless such Rule shall be inapplicable to the proposed
registration) covering all of the Demand Shares, which registration statement
shall provide for the sale by the Holders, from time to time, of the Demand
Shares in brokers' transactions, block sales, fixed price offerings or
otherwise.
(c) The Company shall use its best efforts to file a registration
statement covering the Demand Shares as soon as practicable after receipt of the
written request of the Required Holders, but in no event later than 30 days
after the receipt of such request, and shall use its best efforts to cause such
registration statement to be declared effective pursuant to the Securities Act
as soon as practicable, but in no event later than 60 days after the filing
thereof. The Company shall use its best efforts to maintain the effectiveness
of such Registration Statement (or another Registration Statement covering the
Demand Shares) for a period of three years from the effective date thereof.
2.2 AUTOMATIC REGISTRATION. (a) If, after April 1, 1995 and prior
to April 1, 1996, the conversion rights of the Holders shall not be in abeyance
pursuant to Section VII(G) of the Certificate of Designations, the Company shall
cause to be registered in accordance with Section 2.2(d) an indeterminate number
of Registrable Securities (which Registrable Securities shall include both
Exchange Shares and Conversion Shares), which Registrable Securities shall have
a proposed maximum aggregate offering price of at least $125,000,000.
(b) No later than April 1, 1996, the Company shall cause to be
registered in accordance with Section 2.2(e) an indeterminate number of
Registrable Securities (which Registrable Securities shall include both Exchange
Shares and Conversion Shares), which Registrable Securities shall have a
proposed
<PAGE>
6
maximum aggregate offering price of at least $125,000,000; PROVIDED, HOWEVER,
that, if the Company shall have caused the registration of the Registrable
Securities pursuant to Section 2.2(a) or if all of the Registrable Securities
are Exchange Shares and the Company shall have caused the registration of the
Registrable Securities pursuant to Section 2.1(a), which registration statement,
in either case, remains effective, the Company shall not be required to effect a
registration of such Registrable Securities pursuant to this Section 2.2(b).
(c) To facilitate the requested registration under Section 2.2(a) or
2.2(b), the Company shall cause the registration statement to be filed under
this Section 2.2 to be a "shelf" registered offering pursuant to Rule 415 of the
Securities Act (unless such Rule shall be inapplicable to the proposed
registration) covering all of the Registrable Securities, which registration
statement shall provide for the sale by the Holders, from time to time, of the
Registrable Securities in brokers' transactions, block sales, fixed price
offerings or otherwise.
(d) If the Company shall be required to register Registrable
Securities pursuant to Section 2.2(a), the Company shall use its best efforts to
file a registration statement (or, if a Registration Statement shall then be
effective pursuant to Section 2.1, the Company shall file a post-effective
amendment thereto) covering the Registrable Securities as soon as practicable
following the date on which the conversion rights of the Holders shall not be
suspended pursuant to Section VII(G) of the Certificate of Designations, but in
no event later than 15 days thereafter, and shall use its best efforts to cause
such registration statement (or post-effective amendment) to be declared
effective pursuant to the Securities Act as soon as practicable, but in no event
later than 60 days after the filing thereof. The Company shall use its best
efforts to maintain the effectiveness of such Registration Statement (or another
Registration Statement covering the Registrable Securities) for a period of
three years from the effective date thereof.
(e) If the Company shall be required to register Registrable
Securities pursuant to Section 2.2(b), the Company shall use its best efforts to
maintain the effectiveness of such Registration Statement (or another
Registration Statement covering the Registrable Securities) for a period of
three years from the effective date thereof.
2.3 REGISTRATION OF DIVIDEND SHARES. If, at any time, the Company
elects to issue Dividend Shares, prior to the declaration and payment of such
Dividend Shares, the Company shall have caused a registration statement covering
such Dividend Shares to be declared effective and such Registration Statement
shall be and remain effective on the date of payment thereof and for the period
of at least 10 Business Days thereafter.
<PAGE>
7
2.4 CHANGE OF CONTROL REGISTRATION. On or prior to the occurrence of
a Trigger Date, the Company shall use its best efforts to file a registration
statement (or, if a Registration Statement shall then be effective pursuant to
this Section 2, the Company shall, if necessary, file a post-effective amendment
thereto) covering the Registrable Securities and shall use its best efforts to
cause such registration statement (or post-effective amendment) to be declared
effective pursuant to the Securities Act as soon as practicable, but in no event
later than 60 days after the filing thereof. The Company shall use its best
efforts to maintain the effectiveness of such Registration Statement (or another
Registration Statement covering the Registrable Securities) for a period of
three years from the effective date thereof.
2.5 REGISTRATION OF OTHER EXCHANGE SHARES. If a Holder shall hold
Registrable Securities which are Other Exchange Shares, the Company shall use
its best efforts to file a registration statement (or, if a Registration
Statement shall then be effective pursuant to this Section 2, the Company shall,
if necessary, file a post-effective amendment thereto) covering such Other
Exchange Shares within 15 days of the date of the issuance of the Alternate
Exchange Shares or such later date that is the second Business Day following the
expiration of any "black-out" period specified in the underwriting agreement
covering the Alternate Exchange Shares and shall use its best efforts to cause
such registration statement (or post-effective amendment) to be declared
effective pursuant to the Securities Act as soon as practicable, but in no event
later than 60 days after the filing thereof. The Company shall use its best
efforts to maintain the effectiveness of such Registration Statement (or another
Registration Statement covering the Registrable Securities) for a period of
three years from the effective date thereof.
2.6 COSTS AND EXPENSES, ETC. (a) The Company shall pay all
Registration Expenses in connection with any registration of Registrable
Securities pursuant to this Agreement.
(b) Upon any sale of Registrable Securities by a Holder, such Holder
shall pay all brokerage commissions, underwriting discounts and commissions,
transfer taxes, if any, and fees and expenses related thereto relating to the
sale or disposition of such Holder's Registrable Securities.
2.7 EXTENSION. Notwithstanding anything herein to the contrary, if
the notice demanding or the event requiring a registration of Registrable
Securities is received or occurs after January 15 of any year, then the time for
filing a registration statement covering such Registrable Securities shall be
extended to March 31 of such year.
<PAGE>
8
SECTION 3. REGISTRATION PROCEDURES
3.1 PROCEDURES. In the case of each registration, qualification or
compliance effected by the Company pursuant to this Agreement, the Company shall
keep each Holder participating in such registration advised in writing as to the
initiation and progress of each such registration, qualification and compliance
and as to the completion thereof. In addition, at its expense, the Company
shall:
(a) prepare and file with the Commission, within the time period
specified in Section 2, a Registration Statement on any appropriate form
under the Securities Act, which Registration Statement shall comply as to
form in all material respects with the requirements of the applicable form
and include or incorporate by reference all financial statements required
by the Commission to be filed or incorporated by reference therewith, and
use its best efforts to cause such Registration Statement to become
effective and remain effective in accordance with Section 2;
(b) prepare and file with the Commission such amendments and post-
effective amendments to such Registration Statement as and when required by
the rules, regulations or instructions applicable to the registration form
used by the Company for such Registration Statement or by the Securities
Act or by any other rules and regulations thereunder for shelf registration
statements and as may be necessary to keep such Registration Statement
effective for the applicable period;
(c) cause each Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule
424 under the Securities Act to the extent required thereby;
(d) furnish to each Holder of Registrable Securities, each Broker
through whom Registrable Securities are sold and each Underwriter of an
Underwritten Offering, without charge, as many copies of each Prospectus,
including each preliminary prospectus, and any amendment or supplement
thereto, and such other documents as such Holder, Broker or Underwriter may
reasonably request, in order to facilitate the public sale or other
disposition of the Registrable Securities;
(e) use its best efforts to register or qualify the Registrable
Securities under all applicable state securities or "blue sky" laws of such
jurisdictions as any Holder of Registrable Securities included in the
Registration Statement, each Broker or the managing Underwriter of an
Underwritten Offering shall reasonably request in writing; PROVIDED,
HOWEVER, that the Company shall not be required to (i) qualify generally
to do business as a foreign
<PAGE>
9
corporation or as a broker-dealer in any jurisdiction where it would not
otherwise be required to qualify but for this provision, (ii) subject
itself to taxation in any such jurisdiction or (iii) submit to the general
service of process in any such jurisdiction;
(f) notify each Holder of Registrable Securities, each Broker and
each Underwriter of an Underwritten Offering promptly and, if requested by
the recipient of such notice, confirm such advice in writing, (i) when such
Registration Statement has become effective and when any post-effective
amendments thereto become effective, (ii) of any request by the Commission
or any state securities authority for amendments and supplements to such
Registration Statement or to any Prospectus or for additional information,
(iii) of the issuance by the Commission or any state securities authority
of any stop order suspending the effectiveness of such Registration
Statement or the initiation of any proceedings for that purpose, (iv) if
the Company receives any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or
the initiation of any proceeding for such purpose, and (v) of the
occurrence of any event during the period the 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 in order
to make the statements therein not misleading;
(g) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of such Registration Statement at the
earliest possible time;
(h) upon request, furnish to each Holder, each Broker and each
Underwriter of an Underwritten Offering, without charge, as many conformed
copies of such Registration Statement and any post-effective amendment
thereto (and, if an Underwriter or Broker shall reasonably request, a
signed copy of such Registration Statement or post-effective amendment
thereto), including financial statements and schedules, all documents
incorporated therein by reference and at least one copy of all exhibits, as
such Holder, Broker or Underwriters may reasonably request;
(i) cooperate with the selling Holders of Registrable Securities, any
Broker and the Underwriters of an Underwritten Offering, if any, to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends;
and enable such Registrable Securities to be registered in such names as
the selling Holders or the Underwriters of an Underwritten Offering, if
any, may
<PAGE>
10
reasonably request at least three business days prior to any sale of
Registrable Securities;
(j) during the period when the Company has agreed to use its best
efforts to keep the Registration Statement continuously effective pursuant
to Section 2, if any event contemplated by Section 3.1(f)(v) shall occur,
or, if for any other reason it shall be necessary during such period to
amend or supplement such Prospectus to comply with the Securities Act, use
its best efforts to prepare and file with the Commission a supplement to
the Prospectus or, if necessary, a post-effective amendment to the
Registration Statement or an amendment to any document incorporated therein
by reference or a report on the appropriate form under the Exchange Act so
that thereafter such Prospectus will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading and will comply with the Securities Act;
(k) enter into an underwriting agreement with an Underwriter or
Underwriters, as the case may be, providing for the sale of the Registrable
Securities in an Underwritten Offering and/or enter into a sales agency
agreement providing for, among other things, the appointment by the Holders
of a nationally recognized investment banking firm reasonably satisfactory
to the Company to act as sales agent on their behalf, or, in the case of
sales of Registrable Securities through a Broker, enter into a terms
agreement with a Broker, each of which agreements shall be customary in
form, substance and scope and shall contain customary representations,
warranties, covenants and indemnities and require customary opinions of
counsel and accountants' "COLD COMFORT" letters and certificates; and use
its best efforts to obtain any such opinions of counsel and accountants'
"COLD COMFORT" letters referred to in such underwriting agreement, sales
agency agreement or terms agreement, and take all such other reasonable
actions in connection therewith in order to expedite or facilitate the
disposition of the Registrable Securities as contemplated by such
agreements;
(l) make available to its security holders, as soon as practicable,
an earnings statement covering a period of at least twelve months which
satisfies the provisions of Section 11(a) of the Securities Act (including,
at the option of the Company, Rule 158 thereunder);
(m) upon the reasonable request of the selling Holders in connection
with an Underwritten Offering, provide to such Holders and the managing
Underwriter thereof (and any of their respective legal counsel) reasonable
access to appropriate Company officers and employees, its attorneys
<PAGE>
11
and its independent public accountants to answer questions and to supply
information reasonably requested by any such Holder or managing
Underwriters in connection with the Registration Statement and/or the
Prospectus as they shall reasonably determine to be necessary to enable
them to conduct a reasonable investigation within the meaning of the
Securities Act; PROVIDED that the Company shall only be required to provide
such access and supply such information two times in any 12 month period;
(n) upon the reasonable request of the selling Holders in connection
with an Underwritten Offering in which the aggregate offering price of the
Registrable Securities proposed to be sold is at least $25,000,000,
participate in informational "road show" meetings arranged by such Holders
or managing Underwriter thereof; PROVIDED that the Company shall only be
required to participate in one series of such "road-show" meetings in any
12 month period;
(o) within a reasonable time prior to the filing of the Registration
Statement, any amendment to the Registration Statement or supplement to a
Prospectus, (PROVIDED that this clause (o) shall not apply to the filing of
any document incorporated by reference in such Registration Statement or
Prospectus), provide copies of such document to the selling Holders of
Registrable Securities, any Broker and the Underwriters or managing
Underwriters of an Underwritten Offering, if any, and make such of the
representatives of the Company as shall be reasonably requested available
for discussion of such document; and
(p) if the Registrable Securities are Conversion Shares and if
requested by the selling Holders, cause such Registrable Securities to be
listed on the principal securities exchange or quotation system, if any, on
which securities of the Company shall then be listed.
3.2 HOLDERS' OBLIGATIONS. (a) If Registrable Securities owned by a
Holder are included in any registration, such Holder shall furnish the Company
such information regarding itself and the distribution proposed by such Holder
as the Company may reasonably request, including, without limitation, providing
the Company with questionnaires, as are customary for similar transactions, and
which the Company may reasonably request or as may be required by applicable
securities laws and regulations, and as shall be required in connection with any
registration, qualification or compliance referred to in this Agreement. Each
Holder of Registrable Securities for which any registration is being effected
agrees to notify the Company promptly as practicable of any inaccuracy or change
in information previously furnished by such Holder to the Company or of the
happening of any event, in either case as a result of which any Prospectus
relating to such registration contains an
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12
untrue statement of a material fact regarding such Holder or the distribution of
such Registrable Securities or omits to state any material fact regarding such
Holder or the distribution of such Registrable Securities required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and to furnish to the
Company promptly any additional information required to correct and update any
previously furnished information or required such that such prospectus shall not
contain, with respect to such Holder or the distribution of such Registrable
Securities, an 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 the light of the circumstances under which they were made, not misleading.
(b) Each Holder agrees that, upon receipt of any notice from the
Company of the occurrence of any event of the kind described in Section
3.1(f)(iii) or 3.1(f)(v), such 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
contemplated by Section 3.1(j), and, if so directed by the Company, such Holder
will deliver to the Company (at the expense of the Company) all copies in its
possession, other than permanent file copies then in such Holder's possession,
of the Prospectus current at the time of receipt of such notice.
(c) Each Holder agrees that, upon receipt of any notice from the
Company that it is in the process of a registered offering of securities and the
Company reasonably deems it to be advisable to temporarily discontinue
disposition of Registrable Securities pursuant to the Registration Statement (a
"SUSPENSION NOTICE"), such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to any Registration Statement and shall not be
entitled to the benefits provided under Section 5 with respect to any sales made
by it in contravention of this paragraph, until further notice from the Company
that disposition of Registrable Securities may resume; PROVIDED that such
further notice will be given within 120 days of the Suspension Notice; PROVIDED
FURTHER that, if a Trigger Date shall occur during the period between the
delivery of the Suspension Notice and the end of the 120 day period referred to
above, the Company shall deliver such further notice as soon as reasonably
practicable following such Trigger Date; and PROVIDED FURTHER that any
Suspension Notice must be based upon a good faith determination of the Board of
Directors of the Company or the Executive Committee thereof that such Suspension
Notice is necessary. If the Company shall give any Suspension Notice, the
Company shall extend the period during which the Registration Statement shall be
maintained effective pursuant to this Agreement by the number of days during the
period from and including the date of the giving of such notice to and including
the date when the Holders shall have received notice that the Suspension Notice
has been withdrawn.
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13
3.3 SELECTION OF UNDERWRITERS, ETC. If a Registration Statement
relates to Registrable Securities of more than one Holder, those Holders will
enter into a written agreement or arrangement, in form reasonably satisfactory
to the Company, providing for the coordination of their sales through one
Broker, Underwriter or syndicate of Underwriters. Any such Broker or
Underwriter shall be selected by the such Holders (and be reasonably acceptable
to the Company) and shall be a nationally recognized investment banking firm in
good regulatory standing in all appropriate jurisdictions.
SECTION 4. LIMITATIONS ON SALE RIGHTS
4.1 NOTIFICATION OF SALES. Whenever a Holder intends to sell
Registrable Securities pursuant to an effective Registration Statement, such
Holder shall give the Company notice of any such intention no later than 45 days
prior to the day on which such Holder intends to make the first such sale (the
"FIRST SALE DATE") and sales may only be made during the period referred to in
the next succeeding sentence. Commencing on the First Sale Date and continuing
for a period of 60 consecutive days (such period, as it may be extended pursuant
to Section 4.2, the "SALE WINDOW"), any Holder may elect to sell Registrable
Securities pursuant to such Registration Statement by giving the Company not
less than two full Business Days' prior written notice thereof (a "SALE
NOTICE"), which shall specify whether the sale is to be through a Broker, in an
Underwritten Offering or otherwise. Notwithstanding the foregoing, each Holder
agrees that, upon receipt of a Suspension Notice from the Company setting forth
the occurrence of an event described in Section 3.1(f)(v) and the Company
reasonably deems it to be advisable to discontinue temporarily disposition of
Registrable Securities pursuant to the Registration Statement, such Holder will
forthwith discontinue disposition of Registrable Securities pursuant to any
Registration Statement and shall not be entitled to the benefits provided under
Section 5 with respect to any sales made by it in contravention of this
paragraph, until further notice from the Company that disposition of Registrable
Securities may resume; PROVIDED that such further notice will be given within
120 days of the Suspension Notice; PROVIDED FURTHER that, if a Trigger Date
shall occur during the period between the delivery of the Suspension Notice and
the end of the 120 day period referred to above, the Company shall deliver such
further notice as soon as reasonably practicable following such Trigger Date;
and PROVIDED FURTHER that any Suspension Notice must be based upon a good faith
determination of the Board of Directors of the Company or the Executive
Committee thereof that such Suspension Notice is necessary. If the Company
shall give any Suspension Notice pursuant to this Section 4, the Company shall
extend the Sale Window by the number of days during the period from and
including the date of the giving of such notice to and including the date when
the Holders shall have received notice that the Suspension Notice has been
withdrawn.
<PAGE>
14
4.2 EXTENSION OF SALE WINDOW. So long as all of the Registrable
Securities have not been sold, upon not less than 15 days' prior written notice
given prior to the last day of the original Sale Window, a Holder may extend the
Sale Window for an additional 30 days from its original expiration date, so that
the Sale Window will expire on the date which is 90 days after the First Sale
Date.
4.3 COMMENCEMENT OF NEW SALE WINDOW. Notwithstanding Section 4.1,
from and after the expiration of any Sale Window until the date which is 135
days after the last day of such Sale Window, no Holder shall be permitted to
provide to the Company notice of a new First Sale Date. From and after such
135th day, any Holder may provide notice of a new First Sale Date pursuant to
Section 4.1.
4.4 CERTAIN SALES. Notwithstanding anything in this Agreement to the
contrary, registrations and sales of Dividend Shares and of Conversion Shares
following the occurrence of a Trigger Date shall not be subject to the foregoing
provisions of this Section 4.
SECTION 5. INDEMNIFICATION; CONTRIBUTION
5.1 INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify
and hold harmless each Person who participates as an underwriter within the
meaning of the Securities Act (including any Broker or securities dealer
participating in the distribution of Registrable Securities) (any such Person
being an "UNDERWRITER"), each Holder and each Person, if any, who controls any
Holder or Underwriter within the meaning of Section 15 of the Securities Act
against any losses, claims, damages, expenses or liabilities, joint or several,
to which such Underwriter, Holder or Person who controls any Holder or
Underwriter may become subject, under the Securities Act or otherwise, insofar
as such losses, claims, damages, expenses or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus, or any amendment or supplement 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;
and will reimburse each Underwriter, Holder or Person who controls any Holder or
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter, Holder or Person who controls any Holder or Underwriter in
connection with investigating or defending any such action or claim; PROVIDED,
HOWEVER, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability (i) arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement or the Prospectus or any such
amendment or supplement in reliance
<PAGE>
15
upon and in conformity with written information furnished to the Company by any
Underwriter, Holder or Person who controls any Holder or Underwriter expressly
for use therein, (ii) arises out of any transaction or activity consummated or
taken by the Holder after receipt of the notification provided for in Section
3.2 and prior to the delivery of the post-effective amendment, supplemented
Prospectus or amended document contemplated by Section 3.1(j); or (iii) results
solely from an untrue statement of a material fact contained in, or the omission
of a material fact from, a preliminary prospectus which untrue statement or
omission was corrected in the Prospectus, if the Underwriters or Holder sold
Registrable Securities to the person alleging such loss, claim, damage or
liability without sending or giving, at or prior to the written confirmation of
such sale, a copy of the Prospectus. As used in this Section, the term "HOLDER"
shall include the officers, directors and agents of any Holder.
5.2 INDEMNIFICATION BY HOLDERS. Each Holder agrees to indemnify and
hold harmless, and agrees to use reasonable efforts to cause each Underwriter to
indemnify and hold harmless, to the same extent as the foregoing indemnity from
the Company to such Holder, but only with respect to information furnished in
writing by such Holder or Underwriter or on such Holder's or Underwriter's
behalf expressly for use in the Registration Statement (or any amendment
thereto) or any Prospectus (or any amendment or supplement thereto); PROVIDED
that the obligations of any Holder or Underwriter to indemnify the Company shall
be limited to the proceeds received by such Holder or Underwriter from the sale
of such Registrable Securities pursuant to such Registration Statement.
5.3 CONDUCT OF INDEMNIFICATION PROCEEDINGS. If any action or
proceeding (including any governmental investigation) shall be brought or
asserted against any person entitled to indemnification under Section 5.1 or 5.2
above, the indemnified party shall give prompt written notice to the
indemnifying party, and the indemnifying party shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to the indemnified
party, and shall assume the payment of all expenses in connection with such
defense. The indemnified party or any controlling person of such indemnified
party shall have the right to employ separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of the indemnified party or such controlling person
unless (i) the indemnifying party shall have agreed to pay such fees and
expenses or (ii) the indemnifying party shall have failed to assume the defense
for such action or proceeding and to employ counsel reasonably satisfactory to
the indemnified party in any such action or proceeding or (iii) the named
parties to any such action or proceeding (including any impleaded parties)
include both the indemnified party or such controlling person and the
indemnifying party, and such indemnified party or such controlling person shall
have been advised in writing by counsel that counsel
<PAGE>
16
employed by the indemnifying party would, under applicable professional
standards, have a conflict in representing both the indemnifying party and the
indemnified party or such controlling person (in which case, if such indemnified
person or such controlling person notifies the indemnifying party in writing
that it elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense of
such action or proceeding on behalf of the indemnified party or such controlling
person); it being understood, however, that the indemnifying party shall not, in
connection with any one such action or proceeding or separate but substantially
similar or related actions or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys (together with
appropriate local counsel) at any time for such indemnified party or parties and
controlling persons thereof, which firm shall be designated, if the Holders (or
their controlling persons) are the indemnified parties, in writing by the
Required Holders who are then entitled to such indemnity in connection with such
action or proceeding and if the Company is the indemnified party, by the
Company. No party shall be liable for any settlement of any such action or
proceeding effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent, or if there is
a final judgment for the plaintiff in any such action or proceeding, the
indemnifying party agrees to indemnify and hold harmless such indemnified party
and such controlling person from and against any loss or liability (to the
extent stated above) by reason of such settlement or judgment.
5.4 CONTRIBUTION. If the indemnification provided for in this
Section 5 is unavailable to an indemnified party hereunder in respect of any
losses, claims, damages, liabilities or expenses, then each such indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities and expenses in such proportion as is appropriate
to reflect the relative fault of the indemnified party and the indemnifying
party in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of the indemnified party and the
indemnifying 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 such party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 5.4 were determined by PRO RATA allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this paragraph.
<PAGE>
17
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, expenses, liabilities, or judgments referred to above in this
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 5.4, no Holder shall be required
to contribute any amount in excess of the amount by which the total price at
which the Registrable Securities of such selling Holder were offered to the
public pursuant to the Registration Statement exceeds the amount of any damages
which such selling Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
found guilty by a court of competent jurisdiction of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not found guilty by a
court of competent jurisdiction of such fraudulent misrepresentation.
SECTION 6. MISCELLANEOUS
6.1 COMMISSION FILINGS. The Company covenants that it will file the
reports required to be filed by it under the Exchange Act and the rules and
regulations adopted by the Commission thereunder in a timely manner as
determined by applicable rules and interpretations under the Exchange Act. Upon
the written request of any Holder, the Company will deliver to such Holder a
written statement as to whether it has complied with such requirements.
6.2 REMEDIES. Each of the Company and each Holder, in addition to
being entitled to exercise all rights provided herein or in the Stock Purchase
Agreement or granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. Each of the Company
and each Holder agrees that monetary damages would not be adequate compensation
for any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agrees to waive in any action for specific performance the
defense that a remedy at law would be adequate.
6.3 NO INCONSISTENT AGREEMENTS. The Company has not entered into nor
will the Company on or after the date of this Agreement enter into any Agreement
which is inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof.
The rights granted to the Holders hereunder do not in any way conflict with the
rights granted to the holders of the Company's other issued and outstanding
securities under any such Agreements.
<PAGE>
18
6.4 AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of the
Required Holders.
6.5 NOTICES. (a) All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier or commercial courier guaranteeing next day
delivery (i) if to a Holder, initially at its address set forth in the Stock
Purchase Agreement and (ii) if to the Company, initially at its address set
forth in the Stock Purchase Agreement, and thereafter at such other address,
notice of which is given in accordance with the provisions of this Section 6.5.
(b) All such notices and communications shall be deemed to have been
duly given at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail postage prepaid, if mailed; when answered
back, if telexed; when receipt is acknowledged, if telecopied; and the next
business day after timely delivery to the courier, if sent by commercial courier
guaranteeing next day delivery.
6.6 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the permitted successors, assigns and transferees
of each of the parties; PROVIDED that nothing herein shall be deemed to permit
any assignment, transfer or other disposition of Shares or Registrable
Securities except in accordance with the terms of the Stock Purchase Agreement
and the Certificate of Designations. If any transferee of any Holder shall
acquire Shares or Registrable Securities, in any manner, whether by operation of
law or otherwise, such Shares or Registrable Securities shall be held subject to
all of the terms of this Agreement, and by taking and holding such Shares or
Registrable Securities such Person shall be conclusively deemed to have agreed
to be bound by and to perform all of the terms and provisions of this Agreement
and,if such acquisition was effected in accordance with the terms and provisions
of the Stock Purchase Agreement and the Certificate of Designations, such Person
shall be entitled to receive the benefits hereof.
6.7 SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
6.8 HEADINGS. The heading in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
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19
6.9 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
6.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same Agreement.
6.11 ENTIRE AGREEMENT. This Agreement is intended by the parties as
a final expression of their Agreement and is intended to be a complete and
exclusive statement of the Agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
premises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Company with
respect to securities sold pursuant to the Stock Purchase Agreement. This
Agreement supersedes all prior Agreements and understandings between the parties
with respect to such subject matter.
IN WITNESS WHEREOF, the parties have executed this statement as of the
date first written above.
CABLEVISION SYSTEMS CORPORATION
By: /s/
-------------------------------------
Title:
TORONTO-DOMINION INVESTMENTS,INC.,
as Purchaser
By: /s/
-------------------------------------
Title:
