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Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
CENTURY COMMUNICATIONS CORP.
(Exact name of registrant as specified in its charter)
New Jersey 06-1158179
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification Number)
organization)
50 Locust Avenue
New Canaan, Connecticut 06840
(203) 972-2000
(Address, including zip code, and telephone number,
including area code, of registrant's
principal executive offices)
Bernard P. Gallagher
Century Communications Corp.
50 Locust Avenue
New Canaan, Connecticut 06840
(203) 972-2000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
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David Z. Rosensweig David F. Kroenlein
Leavy Rosensweig & Hyman Whitman Breed Abbott & Morgan
11 East 44th Street 200 Park Avenue
New York, New York 10017 New York, New York 10166
(212) 983-0400 (212) 351-3000
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Approximate date of commencement of the proposed sale to the public: From
time to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
maximum maximum aggre-
Title of each class of Amount to offering price gate offering Amount of
securities to be registered be registered per unit (1) price (1) registration fee
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Class A Common Stock, $.01 par value........... 3,581,632 shs. $8.625 $30,891,576 $10,653
====================================================================================================================================
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(1) Estimated pursuant to Rule 457(c) solely for the purpose of determining the
registration fee on the basis of the closing price reported on NASDAQ/NMS on
February 28, 1995.
The registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
SUBJECT TO COMPLETION, DATED MARCH 3, 1995
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PROSPECTUS
3,581,632 Shares
CENTURY COMMUNICATIONS CORP.
CLASS A COMMON STOCK
This Prospectus relates to the offering from time to time of up to
3,581,632 shares (the "Shares") of Class A Common Stock, par value $.01 per
share (the "Class A Common Stock"), of Century Communications Corp. (the
"Company") by the persons named herein (the "Selling Shareholders"), who became
shareholders of the Company as a result of the mergers, effective March 1, 1995,
of each of Kootenai Cable, Inc. ("Kootenai") and Pullman TV Cable Co. Inc.
("Pullman") with subsidiaries of the Company that resulted in Kootenai and
Pullman becoming wholly owned subsidiaries of the Company. The Company will not
receive any proceeds from the sale of the Shares by the Selling Shareholders.
The Company is paying the expenses of registration of the Shares.
It is anticipated that sales of Shares by the Selling Shareholders
will be made in one of three ways: (1) through broker-dealers, (ii) through
agents or (iii) directly to one or more purchasers. The period of distribution
of the Shares may occur over an extended period of time. See "PLAN OF
DISTRIBUTION."
The Class A Common Stock of the Company is quoted on the National
Association of Securities Dealers Automated Quotation System -- National Market
System ("NASDAQ/NMS") under the symbol CTYA. On February 28, 1995, the closing
price for the Class A Common Stock reported on NASDAQ/NMS was $8.625 per share.
See "Investment Considerations" for a discussion of certain factors that
should be considered by prospective investors.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
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The date of this Prospectus is , 1995.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
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AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (together with all
amendments and exhibits, referred to as the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
Shares. This Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. For further information pertaining
to the Shares, the Class A Common Stock and the Company, reference is made to
the Registration Statement.
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Commission. Such reports, proxy statements and other information can be
inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
Commission's Regional Offices at 7 World Trade Center, Suite 1300, New York, New
York 10048, and 500 West Madison, Suite 1400, Chicago, Illinois 60661. Copies of
such material can be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Annual Report on Form 10-K for the fiscal year ended May 31,
1994, the Quarterly Reports on Form 10-Q for the fiscal quarters ended August
31, 1994 and November 30, 1994 and the Current Report on Form 8-K, dated
December 31, 1994, filed by the Company with the Commission pursuant to the
Exchange Act are incorporated herein by reference.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of the
offering of the Shares shall be deemed to be incorporated by reference in this
Prospectus and to be a part hereof from the respective date of filing of each
such document. Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is, or is deemed to be,
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon written or oral request, a copy of any or all of
the documents incorporated by reference herein, other than certain exhibits to
such documents. Requests for such documents should be directed to Scott N.
Schneider, Senior Vice President and Treasurer, Century Communications Corp., 50
Locust Avenue, New Canaan, Connecticut 06840. The Company's telephone number is
(203) 972-2000.
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INVESTMENT CONSIDERATIONS
Before purchasing the Shares, a prospective investor should consider,
among other things, the following factors.
Leverage; Capital Requirements
In recent years, the Company and its subsidiaries have incurred
substantial indebtedness in connection with the acquisition, construction and
start-up expenses of cellular telephone systems as well as the acquisition,
upgrade and extension of cable television systems. At November 30, 1994, the
Company and its subsidiaries had $1,410,877,000 of long-term debt (exclusive of
current maturities of $1,643,000), including indebtedness under two credit
agreements executed by subsidiaries of the Company and various banks (the
"Credit Agreements") and under a note agreement executed by a subsidiary of the
Company in December 1992 (the "Note Agreement"). Reflecting net losses in prior
periods, the common stockholders' deficiency as stated on the Company's
consolidated balance sheet at November 30, 1994 was $213,041,000. The Company's
assets, including its cable television franchises and cellular telephone
licenses, are recorded on its balance sheet at historical cost. The Company
believes that the current fair value of such assets is significantly in excess
of their historical cost. Accordingly, the Company does not believe that the
common stockholders' deficiency affects the current fair value of the Company.
The cable television and cellular telephone businesses are capital
intensive. While cash generated from operations is expected to fund an
increasing portion of the working capital requirements, capital expenditures and
debt service obligations of the Company and its subsidiaries, the Company will
require additional funds from bank borrowings and other sources. At November 30,
1994, subsidiaries of the Company had approximately $730,000,000 of potential
unused borrowing capacity under their bank lines of credit (the "Credit
Agreements"). In the past, the Company has funded the principal obligations on
its long-term debt by refinancing the principal with expanded bank lines of
credit. Although to date the Company has been able to obtain financing on
satisfactory terms, there can be no assurance that this will continue to be the
case in the future. The Indentures for the Company's outstanding issues of
publicly-held debt (the "Indentures") impose certain restrictions on the
incurrence of indebtedness. See "Restrictive Covenants; Consequences of Default"
below.
Restrictive Covenants; Consequences of Default
The Credit Agreements, the Note Agreement and the Indentures contain
various financial and operating covenants, including, among other things,
maintenance of certain financial ratios, restrictions on the ability of certain
subsidiaries of the Company to incur indebtedness or liens, to make certain
capital expenditures and to transfer funds to the Company and limits on certain
other corporate actions. The Indentures also contain various covenants,
including, among other things, restrictions on the ability of the Company to
incur indebtedness and to make loans or capital contributions to, or to act as a
guarantor for, certain of its subsidiaries and affiliates, which presently
consist of those subsidiaries and affiliates engaged in the cellular telephone
and related businesses. The ability of the Company and its subsidiaries to
comply with such provisions may be affected by events beyond their control.
In the event of a default under the agreements pursuant to which the
outstanding debt securities of the Company and its subsidiaries are issued, the
holders of such debt or the trustee acting on their behalf could elect to
declare all of such debt securities, together with accrued interest, to be due
and payable. Under certain of such agreements, the creditors would also have
other remedies available, including foreclosure on the capital stock of the
Company's subsidiaries which is pledged to secure such debt.
The Company is currently in compliance with the financial and
operating covenants contained in the Credit Agreements, the Note Agreement and
the Indentures and management believes it is not presently at risk of
noncompliance. However, there can be no assurance that this will continue to be
the case.
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Cellular Telephone Industry
Although numerous cellular telephone systems are operational in the
United States and other countries, the industry has only a limited operating
history. The Company, through its 33.9%-owned subsidiary, Centennial Cellular
Corp. ("Centennial Cellular"), owns or controls non-wireline cellular telephone
systems in 29 markets in six geographic areas ("controlled systems") and
minority interests in six limited partnerships which own wireline cellular
telephone systems which primarily serve the Sacramento Valley and San Francisco
Bay Area in California ("minority owned systems"). See "The Company." The
Company's cellular telephone systems compete in each market with a wireline or a
non-wireline system, as the case may be, as well as with other current and
developing mobile radio technologies and other communications services. All of
the controlled systems have experienced net operating losses and negative cash
flow. The Company anticipates that such losses and negative cash flow will
continue over the next several years and there can be no assurance that future
cellular telephone operations will be profitable. While all of the controlled
systems and the minority owned systems are operational, each of them is still in
the developmental or start-up phase and substantial additional expenditures for
construction and development will be required. Centennial Cellular may seek
various sources of external financing to meet its current and future needs,
including bank financing, joint ventures and partnerships, and public and
private placements of debt and equity securities of Centennial Cellular. If it
is unable to do so, the growth of the controlled systems will be impeded or, in
the case of minority owned systems, Centennial Cellular's percentage interest
could be diluted.
Control by Certain Stockholders
The ownership interest in the Company of Leonard Tow and certain
trusts for the benefit of members of his family (the "Tow Trusts") and Sentry
Insurance a Mutual Company ("Sentry Insurance"), constituting approximately
96.4% of the combined voting power of both classes of Common Stock, presently
gives such persons the power to elect all but one member of the Board of
Directors of the Company and to control the vote on all other matters submitted
to a vote of the Company's stockholders. See "Description of Capital
Stock--Common Stock--Voting Rights." Leonard Tow and the Tow Trusts on the one
hand and Sentry Insurance on the other hand have entered into a Principal
Stockholders' Agreement providing that Sentry Insurance will vote its shares of
Common Stock for the election of up to two directors designated by Leonard Tow,
and that Leonard Tow and the Tow Trusts will vote the shares of Common Stock
owned or controlled by them in favor of up to two directors designated by Sentry
Insurance. The Principal Stockholders' Agreement also provides that neither
Sentry Insurance nor Leonard Tow and the Tow Trusts may sell, assign or transfer
their shares of Common Stock in a public sale without first offering the shares
to the other party or parties to the Principal Stockholders' Agreement. See
"Description of Capital Stock--Principal Stockholders' Agreement."
Under certain of the Credit Agreements, an event of default occurs if
Leonard Tow ceases to be the chief executive officer of each of the Company and
the Company's principal operating subsidiaries and the Company and the Company's
principal operating subsidiaries fail to appoint a reasonably acceptable
successor to him within 30 days of his ceasing to hold such office or if Leonard
Tow and/or members of his immediate family or trusts for their benefit cease to
own, in the aggregate, stock of the Company having at least 331/3% of the
combined voting power of both classes of Common Stock and 331/3% of the issued
and outstanding shares of stock of the Company.
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THE COMPANY
The Company is principally engaged through its operating subsidiaries
in the business of owning and operating cable television and cellular telephone
systems. The Company also owns and operates four radio stations, two of which
are owned and operated by a joint venture which is 50% owned by the Company and
50% owned by an unaffiliated entity.
At November 30, 1994, the Company owned and operated 56 cable
television systems in 24 states and Puerto Rico. At that date, the Company's
cable systems passed approximately 1,713,000 homes and served a total of
approximately 995,000 primary basic subscribers. The cable system in Puerto Rico
and one other cable system are owned 50% by the Company and 50% by unaffiliated
entities. At November 30, 1994, these two systems passed approximately 432,000
homes and served approximately 205,000 primary basic subscribers.
On August 30, 1991, Citizens Cellular Company ("Citizens Cellular"),
a wholly owned subsidiary of Citizens Utilities Company ("Citizens"), was merged
with and into Century Cellular Corp., an indirect wholly owned subsidiary of the
Company that owned or controlled non-wireline cellular telephone systems in five
geographic areas, the name of which was changed on February 7, 1992 to
Centennial Cellular Corp. The Company has a 1.96% equity interest in Citizens
and Leonard Tow, Chairman of the Board, Chief Executive Officer and Chief
Financial Officer of the Company, is Chairman of the Board, Chief Executive
Officer and Chief Financial Officer of Citizens. Citizens Cellular owned
minority interests in limited partnerships which own wireline cellular telephone
systems in six geographic areas. Upon consummation of the merger, Centennial
Cellular, as the surviving corporation, became the owner of all of the cellular
telephone properties previously owned by Centennial Cellular and Citizens
Cellular as well as the paging and two-way mobile radio systems owned by
Centennial Cellular. Centennial Cellular owns or controls non-wireline cellular
telephone systems in 29 markets in six geographic areas representing
approximately 5.04 million net pops and minority interests in six limited
partnerships which own wireline cellular telephone systems which primarily serve
the Sacramento Valley and San Francisco Bay Area in California representing
approximately 1.08 million net pops. "Net pops" means the population of a
cellular market, based upon the 1990 Census Report of the Bureau of the Census,
United States Department of Commerce, multiplied by the Company's percentage
ownership interest in an entity licensed by the Federal Communications
Commission ("FCC") to construct or operate a cellular telephone system in that
market.
Centennial Cellular has two classes of Common Stock, Class A Common
Stock and Class B Common Stock. The holders of the Class A Common Stock are
entitled to one vote per share and the holders of the Class B Common Stock are
entitled to fifteen votes per share. The Company owns 81.2% of the outstanding
Class B Common Stock and 100% of the outstanding Second Series Convertible
Redeemable Preferred Stock of Centennial Cellular, and Citizens owns 18.8% of
the outstanding Class B Common Stock and 100% of the outstanding Convertible
Redeemable Preferred Stock of Centennial Cellular. The Company and Citizens own
74.2% and 17.2%, respectively, of the combined voting power of both classes of
Common Stock as of February 19, 1995 and, if the Company and Citizens each
converts the preferred stock owned by it, the Company will own 59.4%, and
Citizens will own 33.9%, of such voting power. As a result of such ownership and
in accordance with an agreement with Citizens, the Company has the ability to
nominate at least a majority and elect all of the directors of Centennial
Cellular and retains control of Centennial Cellular.
The Company expects to continue to consider acquisitions of or
investments in cable television systems, cellular telephone systems (through its
cellular subsidiaries) and other communications-related properties.
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The Company's principal executive offices are located at 50 Locust
Avenue, New Canaan, Connecticut 06840 and its telephone number is (203)
972-2000.
Recent Developments
On November 28, 1994, the Company entered into an agreement to
acquire the cable television systems serving Anaheim, Hermosa Beach/Manhattan
Beach, Fairfield and Rohnert Park/Yountville, California, for an aggregate
purchase price of $286,000,000, subject to adjustment, payable in cash. At
September 30, 1994, such cable television systems served an aggregate of
approximately 135,000 primary basic subscribers. The obligation of the Company
to consummate this transaction is subject to certain closing conditions,
including the approval of the relevant franchise authorities of both the
transfer and extension of the relevant franchises and other regulatory
approvals. The Company anticipates completing this acquisition by September 30,
1995.
On March 1, 1995, the Company acquired cable television systems, including
the Kootenai and Pullman systems, located in California, Colorado, Idaho,
Montana and Washington for a purchase price consisting of approximately
$56,000,000 (subject to adjustment) in cash ($18,000,000 of which was paid to
the sellers and $38,000,000 of which was used to satisfy certain liabilities
relating to the acquired cable television systems) and the issuance of the
Shares (valued at $12.25 per share, subject to post-closing adjustment based on
the price performance of the Class A Common Stock). At August 1, 1994, such
cable television systems served an aggregate of approximately 44,000 primary
basic subscribers.
Centennial Cellular Corp., the Company's 33.9%-owned subsidiary, is
currently participating in the bidding with respect to the FCC auction of the
personal communication system (PCS) license to serve the Commonwealth of Puerto
Rico and the U.S. Virgin Islands. The latest bid submitted by Centennial was
approximately $55,000,000. There is no assurance that Centennial will be
successful in obtaining such license through such bidding and Centennial has no
obligation to submit additional bids.
In February 1994, the Company through a wholly owned subsidiary
("Australian Holding Company") invested approximately $58,000,000 in a company
(the "Licensee") that presently owns a 91.5% interest in one of two licenses
issued by the Australian Broadcasting Authority authorizing the satellite
delivery of television programming on a paid subscription basis ("Satellite Pay
TV"). In addition, subsequent to year-end, the Company acquired for
approximately $15,000,000, through the Australian Holding Company, the
additional 8.5% interest in the license. With respect to the operation of the
Satellite Pay TV business, the Australian Holding Company has an agreement in
principle to cooperate with the other Satellite Pay TV license holder ("Second
License Holder") in the areas of marketing, distribution facilities (including
joint use of facilities for transmitting programming), subscriber management,
and other areas of operation as contemplated by the Australian Broadcast Service
Act. In addition, the Licensee has agreed to jointly use facilities for the
distribution of programming in Australia through the use of MMDS licenses owned
by the Second License Holder ("MMDS Venture"). The Licensee's initial interest
in the MMDS Venture accrued by reason of said joint use facilities is
approximately 25%, which may be increased by virtue of additional capital
contributions. The agreements relating to the cooperation with the Second
License Holder and the MMDS Venture are subject to regulatory review and
approval. There is no assurance such approval will be received. The Company has
also acquired, subsequent to May 31, 1994, an approximate 2% economic interest
in the Second License Holder for approximately $10,000,000.
In July 1994, the Company entered into an agreement to acquire a 50%
economic interest in an Australian company which is a franchisee (the
"Franchisee") of the Second License Holder. The franchise provides for the
exclusive distribution rights to certain programming as well as the use of
subscriber billing systems and distribution facilities. Pursuant to such
agreement, the Company agreed to invest up to $55,000,000 for the acquisition by
the Franchisee of MMDS licenses covering the franchised areas. The licenses were
acquired for approximately $12,000,000 through an auction process conducted by
the Australian Government. The Company has also agreed to fund up to
approximately $11,000,000 of working capital needs of the Franchisee on terms
that reflect the market for commercial banking facilities. Subject to certain
conditions precedent, the agreement provided further that the Company would
merge its Australian Holding Company with the Franchisee through transfer of its
interests in such Holding Company for interests in the Franchisee. The merger
was completed in February 1995. After completion
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of such merger, the Company has an approximate 75% to 77% economic interest in
the combined entity. Pursuant to the terms of an amending agreement entered into
on the completion date, the Franchisee acquired the outstanding shares of the
Licensee and the aforementioned 8.5% interest in the license. The assets
associated with the Company's investments in Australia are in the development
stage and are not yet operational.
STOCK DISTRIBUTIONS AND DIVIDEND POLICY
In recent years, in recognition of improvements in earnings before
depreciation, amortization, interest and taxes ("operating cash flow"), the
Company has from time to time made pro rata distributions of common stock to its
stockholders, as discussed below. The effect of such distributions is to
increase the number of shares outstanding and reduce the proportionate
investment in the Company represented by each share. For accounting purposes,
since the Company continues to report net losses and has an accumulated deficit,
an amount equal to the aggregate par value ($.01 per share) of the shares
distributed is transferred from additional paid in capital to the common stock
account. If the Company had retained earnings, the accounting treatment would be
to transfer an amount equal to the market value of the shares issued from
retained earnings to additional paid-in capital. Since the Company has neither
retained earnings nor current earnings, the stock distributions represent a
reallocation of the shareholder's investment over an increased number of shares
and do not represent distributions of corporate earnings and profits.
On June 18, 1992, the Board of Directors of the Company declared a
three percent stock distribution on the Company's Class A Common Stock and Class
B Common Stock payable to the respective stockholders of record on July 3, 1992,
which was distributed on July 24, 1992.
On October 28, 1992, the Board of Directors of the Company declared a
five percent stock distribution on the Company's Class A Common Stock and Class
B Common Stock payable to the respective stockholders of record on November 11,
1992, which was distributed on December 2, 1992.
On February 16, 1993, the Board of Directors of the Company declared
a three percent stock distribution on the Company's Class A Common Stock and
Class B Common Stock payable to the respective stockholders of record on March
1, 1993, which was distributed on March 22, 1993.
On July 2, 1993, the Board of Directors of the Company declared a
five percent stock distribution on the Company's Class A Common Stock and Class
B Common Stock payable to the respective stockholders of record on July 15,
1993, which was distributed on August 6, 1993.
On October 28, 1993, the Board of Directors of the Company declared a
three percent stock distribution on the Company's Class A Common Stock and Class
B Common Stock payable to the respective stockholders of record on November 10,
1993, which was distributed on December 1, 1993.
The Company has never paid a cash dividend on its common stock. The
Company is currently restricted from paying cash dividends by certain of its
debt instruments. Its ability to do so is further limited by provisions of
credit agreements entered into by certain of its subsidiaries that limit the
amount of cash that may be upstreamed to the Company.
DESCRIPTION OF CAPITAL STOCK
The Company's authorized Capital Stock consists of 400,000,000 shares
of Class A Common Stock, 300,000,000 shares of Class B Common Stock, par value
$.01 per share (the "Class B Common Stock" and, together with the Class A Common
Stock, the "Common Stock"), and 100,000,000 shares of preferred stock, par value
$.01 per share (the "Preferred Stock"). As of February 19, 1994, 24,451,676
shares of Class A Common Stock were issued and outstanding (excluding treasury
shares) and 65,406,115 shares of Class B Common Stock were issued and
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outstanding. At such date, 42,272,059 shares of Class B Common Stock were owned
by Leonard Tow, Chairman of the Board, Chief Executive Officer and Chief
Financial Officer of the Company, and certain trusts for the benefit of members
of his family and 23,134,056 shares were owned by Sentry Insurance. No shares of
Preferred Stock are outstanding and there is no agreement or understanding that
would require the issuance of any series of such stock.
Common Stock
Dividends
If all cumulative dividends shall have been paid as declared or set
apart for payment upon shares of Preferred Stock then outstanding, if any,
holders of shares of Class A Common Stock and Class B Common Stock are entitled
to receive such dividends as may be declared by the Company's Board of Directors
out of funds legally available for such purpose. No dividend may be declared or
paid in cash or property on any share of Class B Common Stock, however, unless
simultaneously the same dividend is paid on each share of Class A Common Stock.
Dividends can be declared and paid on shares of Class A Common Stock without
being declared and paid on the shares of Class B Common Stock. In the case of
any stock dividend, holders of Class A Common Stock are entitled to receive the
same percentage dividend (payable in shares of Class A Common Stock) as the
holders of Class B Common Stock receive (payable in shares of Class B Common
Stock). See "Stock Distributions and Dividend Policy."
Voting Rights
Holders of shares of Class A Common Stock and Class B Common Stock
vote as a single class on all matters submitted to a vote of the stockholders,
with each share of Class A Common Stock entitled to one vote and each share of
Class B Common Stock entitled to ten votes except (i) for the election of
directors and (ii) as otherwise required by law. Under New Jersey law, the
affirmative vote of the holders of a majority of the outstanding shares of Class
A Common Stock is required to approve, among other matters, an amendment of the
certificate of incorporation if the rights or preferences of such holders would
be subordinated or otherwise adversely affected thereby. In the election of
directors, the holders of Class A Common Stock, voting as a separate class, are
entitled to elect one director. The holders of Class A Common Stock and Class B
Common Stock, voting as a single class with each share of Class A Common Stock
entitled to one vote and each share of Class B Common Stock entitled to ten
votes, are entitled to elect the remaining directors. Holders of Class A Common
Stock and Class B Common Stock are not entitled to cumulate votes in the
election of directors. The ownership interest in the Company of Leonard Tow and
the Tow Trusts and Sentry Insurance, constituting approximately 96.4% of the
combined voting power of both classes of Common Stock, gives such persons the
power to elect all but one Class A director as described above and to control
the vote on all other matters submitted to a vote of the Company's stockholders.
Liquidation Rights
Upon liquidation, dissolution or winding up of the Company, the
holders of the Class A Common Stock are entitled to share ratably with the
holders of Class B Common Stock in all assets available for distribution after
payment in full of creditors and after the preferential rights of holders of
shares of Preferred Stock then outstanding, if any, have been satisfied.
Other Provisions
Each share of Class B Common Stock is convertible at the option of
its holder into one share of Class A Common Stock at any time, and converts
automatically into one share of Class A Common Stock upon sale or other transfer
prior to December 31, 2010 to a person other than an associate. The holders of
Class A Common Stock and Class B Common Stock are not entitled to preemptive or
subscription rights. Neither the Class A Common Stock nor the Class B Common
Stock may be subdivided, consolidated, reclassified, or otherwise changed unless
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concurrently the other class of shares is subdivided, consolidated,
reclassified, or otherwise changed in the same proportion and in the same
manner.
Preferred Stock
The 100,000,000 shares of authorized and unissued Preferred Stock may
be issued with such designations, voting powers, preferences and relative,
participating, optional or other special rights, and qualifications, limitations
and restrictions of such rights, as the Company's Board of Directors may
authorize, including but not limited to: (i) the distinctive designation of each
series and the number of shares that will constitute such series; (ii) the
voting rights, if any, of shares of such series; (iii) the dividend rate on the
shares of such series, any restriction, limitation or condition upon the payment
of such dividends, whether dividends shall be cumulative and the dates on which
dividends are payable; (iv) the prices at which, and the terms and conditions on
which, the shares of such series may be redeemed, if such shares are redeemable;
(v) the purchase or sinking fund provisions, if any, for the purchase or
redemption of shares of such series; (vi) any preferential amount payable upon
shares of such series in the event of the liquidation, dissolution or winding-up
of the Company or the distribution of its assets; and (vii) the prices or rates
of conversion at which, and the terms and conditions on which, the shares of
such series may be converted into other securities, if such shares are
convertible.
Principal Stockholders' Agreement
In connection with the formation of the Company as a holding company
in New Jersey, the then-existing stockholders of the Company entered into a
Principal Stockholders' Agreement. This agreement contains provisions which
generally restrict Sentry Insurance on the one hand, and Leonard Tow and the Tow
Trusts on the other hand, from selling, assigning or transferring their shares
of Common Stock in a public sale (as defined) without first offering the shares
to the other party or parties to the Principal Stockholders' Agreement, and in
the case of any other sale, to the Company and then the other party or parties
to the Principal Stockholders' Agreement. The agreement also contains provisions
that obligate each of Leonard Tow and the Tow Trusts and Sentry Insurance to
vote for the election of one director designated by the other if the number of
directors of the Company not elected solely by the holders of Class A Common
Stock is three or fewer, or two directors designated by the other if the number
of directors not elected solely by the holders of Class A Common Stock is four
or more, as long as Sentry Insurance or Leonard Tow and the Tow Trusts,
respectively, hold not less than 25% of the combined voting power of the Common
Stock.
Transfer Agent
The Transfer Agent and Registrar for the Class A Common Stock is
Mellon Securities Trust Company, Ridgefield Park, New Jersey.
THE SELLING SHAREHOLDERS
The Shares are being offered on behalf of the Selling Shareholders,
who acquired such shares as a result of the mergers, effective March 1, 1995, of
Kootenai and Pullman with subsidiaries of the Company. The
-10-
<PAGE>
names of the Selling Shareholders and the number of Shares acquired by each of
them, all of which are being registered for resale hereunder, are as follows:
<TABLE>
<CAPTION>
Shareholders Number of Shares
- ------------ ----------------
<S> <C>
Donald A. Adams 47,580
Robert K. Allison 347,160
Gerald Buford Estate 83,266
Jay R. Busch 77,645
Samuel P. Evans 304,337
Philip J. Fagan, Jr. 59,476
Mary Ford 11,895
Richard S. Henderson 11,895
Bruce Hensel 47,580
Robert G. Holman and Rebecca B. Holman 75,177
J. Paige Jenner and Maureen M. Jenner 314,375
B. J. Koenig 71,371
Richard Marshall 166,532
Craig O. McCaw 118,951
John Linton Muraglia 172,806
Hugh McCulloh 295,537
Elsa Patricia McCulloh 295,299
Robert L. Nagel 214,965
Barbara P. Raemer 23,790
Donald G. Reiman 23,790
Gordon Rock 461,352(1)
Shirley Reynolds-Rock 190,322
Gary Ross 11,895
Allen E. Royce 11,895
Jo C. Shepherd 118,951
Barbara R. Walker, Executor of the
will of Wallace W. Walker 23,790
</TABLE>
- -----------------
(1) Includes 71,371 Shares held as custodian for each of Gregory Reynolds-Rock
and Dana Reynolds-Rock.
-11-
<PAGE>
Except for John Linton Muraglia, who holds 1,000 shares of Class A
Common Stock, as trustee for Meridian Communications, Inc., the Selling
Shareholders do not own any shares of Class A Common Stock other than the Shares
referred to above.
PLAN OF DISTRIBUTION
The Shares are being sold by the Selling Shareholders for their own
account; the Company will not receive any proceeds from the sales of the Shares
by the Selling Shareholders. The Selling Shareholders are not restricted as to
the price or prices at which they may sell the Shares. The aggregate proceeds to
the Selling Shareholders from the sale of the Shares will be the purchase price
of such Shares sold less the aggregate agents' or brokers' discounts or
commissions and other expenses of issuance and distribution not borne by the
Company. Further, the Selling Shareholders are not restricted as to the number
of Shares which may be sold at any one time.
The Selling Shareholders, or their pledgees, donees, transferees or
other successors, may sell the Shares in any of three ways: (i) through
broker-dealers; (ii) through agents or (iii) directly to one or more purchasers.
The distribution of the Shares may be effected from time to time in one or more
transactions (which may involve crosses or block transactions) (A) in the
over-the-counter market, (B) in transactions otherwise than in the
over-the-counter market or (C) through the writing of options on the Shares
(whether such options are listed on an options exchange or otherwise). Any of
such transactions may be effected at market prices prevailing at the time of
sale, at prices related to such prevailing market prices, at negotiated prices
or at fixed prices. The Selling Shareholders may effect such transactions by
selling Shares to or through broker-dealers, and such broker-dealers may receive
compensation in the form of discounts, concessions or commissions from the
Selling Shareholders and/or commissions from purchasers of Shares for whom they
may act as agent (which discounts, concessions or commissions as to a particular
broker-dealer might be in excess of those customary in the types of transactions
involved). There is no plan to offer such Shares through underwriters or any
existing arrangement between the Selling Shareholders and any broker or dealer.
In connection with any sales, the Selling Shareholders and any
broker-dealer participating in such sales may be deemed to be underwriters
within the meaning of the Securities Act. Any commissions paid or any discounts
or concessions allowed to any such broker-dealers, and, if any such
broker-dealers purchase shares as principal, any profits received on the resale
of such shares, may be deemed to be underwriting discounts and commissions under
the Securities Act. The Selling Shareholders may indemnify any broker-dealer
that participates in transactions involving the sale of the Shares against
certain liabilities, including liabilities arising under the Securities Act.
The Selling Shareholders must comply with the requirements of the
Securities Act and the Exchange Act and the rules and regulations thereunder in
offers and sales of their Shares. In particular, the Selling Shareholders may
not: (i) pay commissions or finder's fees to anyone other than normal brokers'
commissions paid to their brokers who execute their orders for sales; (ii) bid
for or purchase for their own account or the account of any affiliate or induce
others to bid for or purchase any of the Company's shares, including the Shares,
until the Shares have been sold; or (iii) make any bids for or purchases of such
shares, directly or indirectly, for the purpose of stabilizing the price of the
Class A Common Stock. Additionally, the Selling Shareholders, including brokers
through whom their sales are made as well as dealers who purchase Shares being
offered hereby for resale, must comply with the Prospectus delivery requirements
of the Securities Act during the term of this offering.
LEGAL MATTERS
The legality of the shares of Class A Common Stock offered will be
passed upon for the Company by Leavy Rosensweig & Hyman, New York, New York.
David Z. Rosensweig, a partner in the firm of Leavy Rosensweig & Hyman, is the
Secretary and a director of the Company.
-12-
<PAGE>
EXPERTS
The consolidated financial statements and related financial statement
schedules incorporated in this Prospectus by reference from the Company's Annual
Report on Form 10-K for the fiscal year ended May 31, 1994 have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their report which is
incorporated herein by reference and have been so incorporated in reliance upon
the report of such firm given upon their authority as experts in auditing and
accounting.
-13-
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses in connection with the offering of the Shares,
other than underwriting discounts and commissions, are as follows:
<TABLE>
<S> <C>
SEC registration fee.............................................................................................$10,653
Legal fees and expenses.......................................................................................... 7,500*
Accounting fees and expenses...................................................................................... 5,000*
Miscellaneous expenses........................................................................................... 3,000*
-------
Total..................................................................................................$26,153*
-------
-------
</TABLE>
- ---------------
* Estimated
Item 15. Indemnification of Directors and Officers.
Section 14A:3-5 of the New Jersey Business Corporation Act provides the
following with respect to the indemnification of directors, officers and
employees:
(1) As used in this section,
(a) "Corporate agent" means any person who is or was a director,
officer, employee or agent of the indemnifying corporation or of any
constituent corporation absorbed by the indemnifying corporation in a
consolidation or merger and any person who is or was a director, officer,
trustee, employee or agent of any other enterprise, serving as such at the
request of the indemnifying corporation, or of any such constituent
corporation, or the legal representative of any such director, officer,
trustee, employee or agent;
(b) "Other enterprise" means any domestic or foreign corporation,
other than the indemnifying corporation, and any partnership, joint
venture, sole proprietorship, trust, or other enterprise, whether or not
for profit, served by a corporate agent;
(c) "Expenses" means reasonable costs, disbursements and counsel
fees;
(d) "Liabilities" means amounts paid or incurred in satisfaction of
settlements, judgments, fines and penalties;
(e) "Proceeding" means any pending, threatened or completed civil,
criminal, administrative or arbitrative action, suit or proceeding, and
any appeal therein and any inquiry or investigation which could lead to
such action, suit or proceeding; and
(f) References to "other enterprises" include employee benefit plans;
references to "fines" include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at the
request of the indemnifying corporation" include any service as a
corporate agent which imposes duties on, or involves services by, the
corporate agent with respect to an employee benefit plan, its
participants, or beneficiaries; and a person who acted in good faith and
in a manner the person reasonably believed to be in
II-1
<PAGE>
the interest of the participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in a manner "not opposed to the best
interests of the corporation" as referred to in this section.
(2) Any corporation organized for any purpose under any general or special
law of this State shall have the power to indemnify a corporate agent against
his expenses and liabilities in connection with any proceeding involving the
corporate agent by reason of his being or having been such a corporate agent,
other than a proceeding by or in the right of the corporation, if
(a) such corporate agent acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation; and
(b) with respect to any criminal proceeding, such corporate agent had
no reasonable cause to believe his conduct was unlawful. The termination
of any proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere or its equivalent shall not of itself create a
presumption that such corporate agent did not meet the applicable
standards of conduct set forth in paragraphs 14A:3-5(2)(a) and
14A:3-5(2)(b).
(3) Any corporation organized for any purpose under any general or special
law of this State shall have the power to indemnify a corporate agent against
his expenses in connection with any proceeding by or in the right of the
corporation to procure a judgment in its favor which involves the corporate
agent by reason of his being or having been such corporate agent, if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation. However, in such proceeding no
indemnification shall be provided in respect of any claim, issue or matter as to
which such corporate agent shall have been adjudged to be liable to the
corporation, unless and only to the extent that the Superior Court or the court
in which such proceeding was brought shall determine upon application that
despite the adjudication of liability, but in view of all circumstances of the
case, such corporate agent is fairly and reasonably entitled to indemnity for
such expenses as the Superior Court or such other court shall deem proper.
(4) Any corporation organized for any purpose under any general or special
law of this State shall indemnify a corporate agent against expenses to the
extent that such corporate agent has been successful on the merits or otherwise
in any proceeding referred to in subsections 14A:3-5(2) and 14A:3-5(3) or in
defense of any claim, issue or matter therein.
(5) Any indemnification under subsection 14A:3-5(2) and, unless ordered by
a court, under subsection 14A:3-5(3), may be made by the corporation only as
authorized in a specific case upon a determination that indemnification is
proper in the circumstances because the corporate agent met the applicable
standard of conduct set forth in subsection 14A:3-5(2) or subsection 14A:3-5(3).
Unless otherwise provided in the certificate of incorporation or bylaws, such
determination shall be made
(a) By the board of directors or a committee thereof, acting by a
majority vote of a quorum consisting of directors who were not parties to
or otherwise involved in the proceeding; or
(b) If such a quorum is not obtainable, or, even if obtainable and
such quorum of the board of directors or committee by a majority vote of
the disinterested directors so directs, by independent legal counsel, in a
written opinion, such counsel to be designated by the board of directors;
or
(c) By the shareholders if the certificate of incorporation or
by-laws or a resolution of the board of directors or of the shareholders
so directs.
(6) Expenses incurred by a corporate agent in connection with a proceeding
may be paid by the corporation in advance of the final disposition of the
proceeding as authorized by the board of directors upon receipt of an
undertaking by or on behalf of the corporate agent to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified as
provided in this section.
II-2
<PAGE>
(7) (a) If a corporation upon application of a corporate agent has failed
or refused to provide indemnification as required under subsection 14A:3-5(4) or
permitted under subsections 14A:3-5(2), 14A:3-5(3) and 14A:3-5(6), a corporate
agent may apply to a court for an award of indemnification by the corporation,
and such court
(i) may award indemnification to the extent authorized under subsections
14A:3-5(2) and 14A:3-5(3) and shall award indemnification to the extent
required under subsection 14A:3-5(4), notwithstanding any contrary
determination which may have been made under subsection 14A:3-5(5); and
(ii) may allow reasonable expenses to the extent authorized by, and
subject to the provisions of, subsection 14A:3-5(6), if the court shall
find that the corporate agent has by his pleadings or during the course of
the proceeding raised genuine issues of fact or law.
(b) Application for such indemnification may be made
(i) in the civil action in which the expenses were or are to be
incurred or other amounts were or are to be paid; or
(ii) to the Superior Court in a separate proceeding. If the application
is for indemnification arising out of a civil action, it shall set forth
reasonable cause for the failure to make application for such relief in
the action or proceeding in which the expenses were or are to be incurred
or other amounts were or are to be paid.
The application shall set forth the disposition of any previous
application for indemnification and shall be made in such manner and form
as may be required by the applicable rules of court or, in the absence
thereof, by direction of the court to which it is made. Such application
shall be upon notice to the corporation. The court may also direct that
notice shall be given at the expense of the corporation to the
shareholders and such other persons as it may designate in such manner as
it may require.
(8) The indemnification and advancement of expenses provided by or granted
pursuant to the other subsections of this section shall not exclude any other
rights, including the right to be indemnified against liabilities and expenses
incurred in proceedings by or in the right of the corporation, to which a
corporate agent may be entitled under a certificate of incorporation, by-law,
agreement, vote of shareholders, or otherwise; provided that no indemnification
shall be made to or on behalf of a corporate agent if a judgment or other final
adjudication adverse to the corporate agent establishes that his acts or
omissions (a) were in breach of his duty of loyalty to the corporation or its
shareholders, as defined in subsection (3) of N.J.S.14A:2-7, (b) were not in
good faith or involved a knowing violation of law or (c) resulted in receipt by
the corporate agent of an improper personal benefit.
(9) Any corporation organized for any purpose under any general or special
law of this State shall have the power to purchase and maintain insurance on
behalf of any corporate agent against any expenses incurred in any proceeding
and any liabilities asserted against him by reason of his being or having been a
corporate agent, whether or not the corporation would have the power to
indemnify him against such expenses and liabilities under the provisions of this
section. The corporation may purchase such insurance from, or such insurance may
be reinsured in whole or in part by, an insurer owned by or otherwise affiliated
with the corporation, whether or not such insurer does business with other
insureds.
(10) The powers granted by this section may be exercised by the
corporation, notwithstanding the absence of any provision in its certificate of
incorporation or bylaws authorizing the exercise of such powers.
(11) Except as required by subsection 14A:3-5(4), no indemnification shall
be made or expenses advanced by a corporation under this section, and none shall
be ordered by a court, if such action would be inconsistent with a provision of
the certificate of incorporation, a bylaw, a resolution of the board of
directors or of the shareholders, an agreement or other proper corporate action
in effect at the time of the accrual of the alleged cause of action asserted in
the proceeding, which prohibits, limits or otherwise conditions the exercise of
indemnification powers by the corporation or the rights of indemnification to
which a corporate agent may be entitled.
II-3
<PAGE>
(12) This section does not limit a corporation's power to pay or reimburse
expenses incurred by a corporate agent in connection with the corporate agent's
appearance as a witness in a proceeding at a time when the corporate agent has
not been made a party to the proceeding.
Paragraph (2) of Article Eighth of the Restated Certificate of
Incorporation of the Company provides, in pertinent part, as follows:
The Corporation shall, to the fullest extent permitted by Section 14A:3-5
of the Business Corporation Act, as the same may be amended and
supplemented, indemnify any and all corporate agents whom it shall have
the power to indemnify under said Section from and against any and all of
the expenses, liabilities or other matters referred to in or covered by
said Section, and the indemnification provided for herein shall not be
deemed exclusive of any other rights to which those indemnified may be
entitled under any by-law, agreement, vote of stockholders or otherwise
and shall continue as to a person who has ceased to be a corporate agent
and shall inure to the benefit of the heirs, executors, administrators and
personal representatives of such a corporate agent. The term "corporate
agent" as used herein shall have the meaning attributed to it by Sections
14A:3-5 and 14A:5-21 of the Business Corporation Act and by any other
applicable provision of law.
Section 6.1 of the By-laws of the Company, as amended, provides as
follows:
Section 6.1 Right of Indemnification. The Corporation, to the fullest
extent permitted by applicable law as then in effect, shall indemnify any
person (the "indemnitee") who was or is involved in any manner (including,
without limitation, as a party or a witness) or was or is threatened to be
made so involved in any threatened, pending or completed investigation,
claim, action, suit or proceeding, whether civil, criminal, administrative
or investigative (including, without limitation, any action or proceeding
by or in the right of the Corporation to procure a judgment in its favor)
(a "Proceeding") by reason of the fact that he or she is or was a director
or officer of the Corporation, or is or was serving at the request of the
Corporation as a director or officer of another corporation, or of a
partnership, joint venture, trust or other enterprise (including, without
limitation, service with respect to any employee benefit plan), whether the
basis of any such Proceeding is alleged action in an official capacity as
director or officer or in any other capacity while serving as a director or
officer, against all liability, loss and expenses (including, without
limitation, attorneys' fees, judgments, fines, and amounts paid or to be
paid in settlement) actually and reasonably incurred by him or her in
connection with such Proceeding. Such indemnification shall continue as to
a person who has ceased to be a director or officer and shall inure to the
benefit of his or her heirs, executors, administrators and legal
representatives. The right to indemnification conferred in this By-law
shall include the right to receive payment of any expenses incurred by the
indemnitee in connection with such Proceeding in advance of the final
disposition of the Proceeding, as herein set forth, consistent with
applicable law as then in effect. All rights to indemnification conferred
in this By-law, including rights to advancement of expenses and the
evidentiary, procedural and other provisions of this By-law, shall be
contract rights. The Corporation, by action of its Board of Directors, may
provide indemnification for employees, agents, attorneys and
representatives of the Corporation with the same, or with more or less,
scope and extent as herein provided for officers and directors. No
amendment to the Restated Certificate of Incorporation or amendment or
repeal of the By-laws purporting to have the effect of modifying or
repealing any of the provisions of this By-law in a manner adverse to the
indemnitee shall abridge or adversely affect any right to indemnification
or other similar rights and benefits with respect to any acts or omissions
occurring prior to such amendment or repeal. This By-law shall be
applicable to all Proceedings, whether arising from acts or omissions
occurring before or after the adoption of this By-law. The phrases "this
By-law" and "By-law" shall refer to this Article VI.
Item 16. Exhibits.
5 - Opinion of Leavy Rosensweig & Hyman.
23.1 - Consent of Deloitte & Touche LLP.
23.2 - Consent of Leavy Rosensweig & Hyman (included in Exhibit 5).
24 - Power of Attorney (included in Part II of the Registration
Statement).
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
II-4
<PAGE>
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
provided, however, that paragraphs (l)(i) and (l)(ii) do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section l5(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions
described under Item 15 above, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of
such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Company certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Town of New Canaan, State of Connecticut, on the 2nd day
of March, 1995.
CENTURY COMMUNICATIONS CORP.
By BERNARD P. GALLAGHER
-----------------------------
Bernard P. Gallagher,
President and Chief Operating
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Leonard Tow, Bernard P. Gallagher,
Scott N. Schneider and David Z. Rosensweig, and each of them, his true and
lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto such 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 in and about the premises, as fully to all intents and purposes as
they might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their substitutes, may lawfully
do or cause to be done by virtue hereof.
II-6
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons, in the capacities indicated, on March 2, 1995.
By LEONARD TOW
-----------------------------------------
Leonard Tow
Chairman of the Board, Chief Executive
Officer, Chief Financial Officer and
Director (principal executive and
financial officer)
By SCOTT N. SCHNEIDER
-----------------------------------------
Scott N. Schneider
Senior Vice President, Treasurer and
Chief Accounting Officer (principal
accounting officer) and Director
By LARRY C. BALLARD
-----------------------------------------
Larry C. Ballard
Director
By STEVEN R. BOEHLKE
-----------------------------------------
Steven R. Boehlke
Director
By BERNARD P. GALLAGHER
-----------------------------------------
Bernard P. Gallagher
Director
By WILLIAM M. KRAUS
-----------------------------------------
William M. Kraus
Director
By DAVID Z. ROSENSWEIG
-----------------------------------------
David Z. Rosensweig
Director
By ROBERT D. SIFF
-----------------------------------------
Robert D. Siff
Director
By PETER J. SOLOMON
-----------------------------------------
Peter J. Solomon
Director
By ANDREW TOW
-----------------------------------------
Andrew Tow
Director
By CLAIRE L. TOW
-----------------------------------------
Claire L. Tow
Director
II-7
<PAGE>
EXHIBIT 5
February 22, 1995
Century Communications Corp.
50 Locust Avenue
New Canaan, CT 06840
Re: Century Communications Corp. Shares of Class A Common Stock
Gentlemen:
We refer to the Registration Statement on Form S-3 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
filed by Century Communications Corp., a New Jersey corporation (the "Company"),
with the Securities and Exchange Commission (the "Commission"). The Registration
Statement covers 3,581,632 shares (the "Shares") of the Company's Class A Common
Stock, par value $.01 per share, to be issued the Company in connection with the
acquisition of certain cable television systems.
We are attorneys admitted to practice in the State of New York and we
are not, and do not purport to be, experts in the law of any other jurisdiction
other than Federal law. The opinions set forth in this opinion letter are
limited to the law of the State of New Jersey and Federal law. In rendering the
opinions set forth below, we have relied upon the opinion of New Jersey counsel
Connell, Foley & Geiser (the "New Jersey Opinion") as to all matters relating to
the laws of the State of New Jersey. To the extent that opinions set forth below
relate to matters governed by the laws of the State of New Jersey, such opinions
are subject to the qualifications and limitations expressed in the New Jersey
Opinion.
We have examined the original, or a photostatic or certified copy, of
such records of the Company, certificates of public officials and such other
documents as we have deemed relevant and necessary as the basis for the opinion
set forth below. In such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as certified
or photostatic copies and the authenticity of the originals of such copies.
<PAGE>
Century Communications Corp.
Page 2
Based upon our examination mentioned above, subject to the assumptions
stated and relying on statements of fact contained in the documents that we have
examined, we are of the opinion that the Shares proposed to be issued and sold
by the Company have been duly authorized for issuance and that the Shares, when
issued, will be validly issued, fully paid and non-assessable.
We consent to the filing of this opinion as an Exhibit to the
Registration Statement. In giving this consent, we do not admit that we are
within the category of persons whose consent is required under section 7 of the
Securities Act or the General Rules and Regulations of the Commission.
Very truly yours,
LEAVY, ROSENSWEIG & HYMAN
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Century Communications Corp. on Form S-3 of our report dated August 23, 1994,
appearing in the Annual Report on Form 10-K of Century Communications Corp. and
subsidiaries for the year ended May 31, 1994, and to the reference to us under
the heading 'Experts' in the Prospectus, which is part of this Registration
Statement.
DELOITTE & TOUCHE LLP
Stamford, Connecticut
March 2, 1995
