Exhibit 4.1
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of
the 15th day of December, as amended and restated as of April 12, 2001, by
and between CoreComm Limited, a Delaware corporation (the "Company"), and
Chase Securities Inc. (the "Grantee").
WHEREAS, capitalized terms used but not defined herein shall have
the meanings ascribed thereto in Section 13 of this Agreement;
WHEREAS, as of December 15, 2000, the Company (i) granted a
warrant (the "Old Warrant") to Grantee to acquire shares of common stock,
$0.01 par value per share, of the Company (the "Common Stock") and (ii)
entered into a registration rights agreement (the "Original Registration
Rights Agreement") relating to the Common Stock to be issued upon exercise
of the Old Warrant;
WHEREAS, as of the date hereof the Grantee has surrendered the Old
Warrant to the Company for cancelation;
WHEREAS, as of the date hereof the Company granted two warrants
(each, a "Warrant") to Grantee to acquire shares of Common Stock;
WHEREAS, each Warrant is exercisable into an aggregate of up to
3,850,000 shares of Common Stock (subject to the anti-dilution adjustments
contained in Section 4 of each Warrant), upon the payment to the Company of
an exercise price of $0.01 per share (any shares of Common Stock issued
upon exercise of a Warrant, collectively, the "Grantee Common Stock
Registrable Shares");
WHEREAS, the Company and Grantee have determined that it is in
their respective best interests to amend and restate the Original
Registration Rights Agreement to relate to the Grantee Common Stock
Registrable Shares hereunder;
WHEREAS, the Company entered into a Registration Rights Agreement
(the "ATX Agreement"), dated as of September 29, 2000 with the former
stockholders of ATX Telecommunications Services, Inc., a Delaware
corporation, for the benefit of the holders of the Registrable Securities
(as defined in the ATX Agreement);
WHEREAS, the Company entered into a Registration Rights Agreement
(the "Voyager Agreement"), dated as of September 29, 2000 with the former
stockholders of ▇▇▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation, listed on
Schedule I to the Voyager Agreement for the benefit of the holders of the
Registrable Securities (as defined in the Voyager Agreement); and
WHEREAS, the Company entered into a Registration Rights Agreement
(the "Booth Agreement"), as of September 28, 2000 with Booth American
Company, a Michigan corporation for the benefit of the holder of the
Subject Stock (as defined in the Booth Agreement).
NOW, THEREFORE, in consideration of the mutual covenants
and agreements contained herein and of other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Agreement intending to be legally bound
hereby agree as follows:
1. Incidental or "Piggyback" Registration Rights.
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(a) Notice of Registration. If the Company, at any time shall
determine to register any of its Common Stock for sale in an Underwritten
Offering for its own account (other than a registration relating to (i) a
registration of an employee compensation plan or arrangement on Form S-8
(or any successor form) or any dividend reinvestment plan, or (ii) a
registration of securities on Form S-4 (or any successor form) including,
without limitation, in connection with a proposed issuance in exchange for
securities or assets of, or in connection with a merger or consolidation
with another corporation) (a "Company Registration"), or shall register any
of its Common Stock pursuant to a demand request for registration by any
holder of the Common Stock (a "Third Party Demand Registration"), the
Company will promptly deliver to the Grantee written notice thereof, and
include in such registration (subject to Section 1(b) of this Agreement)
all the Grantee Common Stock Registrable Shares specified in a written
request delivered by the Grantee to the Company within ten days after such
Grantee's receipt of such written notice from the Company ("Incidental
Registration"). The right of the Grantee to have Grantee Common Stock
Registrable Shares included in a registration pursuant to this Section 1(a)
shall be conditioned upon such Grantee entering into (together with the
Company and/or the other holders, if any, distributing their securities
through such underwriting) an underwriting agreement in customary form with
the managing underwriter or underwriters selected for such underwriting by
the Company or by the stockholders who have demanded such registration (the
"Company Underwriter").
(b) Cutback. If the lead managing underwriter of an offering
covered by Section 1(a) of this Agreement shall advise the Company in
writing on or before the date five days prior to the date then scheduled
for such offering that, in its opinion, the amount of Common Stock
(including Grantee Common Stock Registrable Shares) requested to be
included in such registration exceeds the amount which can be sold in such
offering without adversely affecting the distribution of the Common Stock
being offered, then the Company will include in such registration:
(i) in the case of a Company Registration, first, any
shares proposed to be offered by the Company; second, the shares
of Common Stock which have been requested to be registered by the
holders requesting such registration pursuant to the ATX
Agreement, the Voyager Agreement and/or the Booth Agreement (the
"Existing Agreements"), as applicable, allocated, if necessary,
pro rata among such holders requesting such registration on the
basis of the number of shares of Common Stock Beneficially Owned
by such holder at the time; and third, the shares of Common Stock
which have been requested to be registered by the Grantee and any
other holder of common shares entitled to incidental or piggyback
registration ("Other Registration"), allocated, if necessary, pro
rata among such holders requesting such registration on the basis
of the number of shares of Common Stock Beneficially Owned by such
holder at the time; and
(ii) in the case of a Third Party Demand Registration,
first, any shares proposed to be offered by the stockholder or
stockholders exercising their right to cause the Company to
proceed with such Third Party Demand Registration (the "Initiating
Third Party Holders"); second, any shares proposed to be offered
by the Company; third, the shares of Common Stock which have been
requested to be registered by the holders requesting such
registration pursuant to the Existing Agreements, excluding any
shares Beneficially Owned by the Initiating Third Party Holders,
to be included in such registration, allocated, if necessary, pro
rata among such holders requesting such registration on the basis
of the number of shares of Common Stock Beneficially Owned by such
holder at the time; and fourth, the shares of Common Stock which
have been requested to be registered by the Grantee and any other
holder entitled to Other Registration, allocated, if necessary,
pro rata among such holders requesting such registration on the
basis of the number of shares of Common Stock Beneficially Owned
by such holder at the time;
provided, however, that in the event the Company will not, by virtue of the
implementation of the foregoing cutback mechanism, include in any such
registration all of the Grantee Common Stock Registrable Shares requested
to be included in such registration, the Grantee may, upon written notice
to the Company given within three days of the date the Grantee is first
notified of such matter, reduce the amount of the Grantee Common Stock
Registrable Shares the Grantee desires to have included in such
registration, whereupon only the Grantee Common Stock Registrable Shares,
if any, the Grantee desires to have included will be considered for such
inclusion.
2. Obligations of the Company.
(a) If, and whenever, the Company is required under the Existing
Agreements to use its best efforts to effect or cause the registration of
any shares of Common Stock under the Securities Act, the Company shall (i)
prepare and, as soon as reasonably possible, file with the SEC a
registration statement with respect to the shares of Common Stock, and
shall use its best efforts to cause such registration statement to become
effective as promptly as possible; provided, however, that the Company may
discontinue any registration of its securities which is being effected
pursuant to an Incidental Registration at any time prior to the effective
date of the registration statement relating thereto and, except as
otherwise provided in the Existing Agreements, to remain effective until
the earlier of the sale of the shares of Common Stock so registered or such
time as the holders may sell all of the shares of Common Stock so
registered pursuant to Rule 144 of the Securities Act within a three-month
period, (ii) prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection
therewith as may be reasonably necessary to make and to keep such
registration statement effective and to comply with the provisions of the
Securities Act with respect to the sale or other disposition of all
securities proposed to be registered pursuant to such registration
statement until the earlier of the sale of the shares of Common Stock so
registered or such time as the holders may sell all of the shares of Common
Stock so registered pursuant to Rule 144 of the Securities Act within a
three- month period and (iii) take all such other action either necessary
or desirable to facilitate the shares of Common Stock held by the holders
so registered to be disposed of in accordance with the method of
disposition described herein.
(b) Notwithstanding the foregoing, if the Company shall furnish to
the Grantee a certificate signed by its Chairman, Chief Executive Officer
or Chief Financial Officer stating that (i) filing a registration statement
or maintaining effectiveness of a current registration statement would have
a material adverse effect on the Company or its stockholders in relation to
any material financing, acquisition or other corporate transaction, and the
Company has determined in good faith that such disclosure is not in the
best interests of the Company and its stockholders, or (ii) the Company has
determined in good faith that the filing or maintaining effectiveness of a
current registration statement would require disclosure of material
information the Company has a valid business purpose of retaining as
confidential, the Company shall be entitled to postpone filing or suspend
the use by the Grantee of the registration statement for a reasonable
period of time, but not in excess of 60 consecutive calendar days. The
Company shall be entitled to exercise such suspension rights one time in
any calendar year.
(c) In connection with any registration statement on which the
Grantee has validly requested inclusion, the following provisions shall
apply:
(1) The Company shall furnish to the Grantee, prior to the filing
thereof with the SEC, a copy of any registration statement, and each
amendment thereof and each amendment or supplement, if any, to the
prospectus included therein and shall use its reasonable efforts to reflect
in each such document, when so filed with the SEC, such comments as the
Grantee and its counsel reasonably may propose.
(2) The Company shall take such action as may be necessary so that
(i) any registration statement and any amendment thereto and any prospectus
forming part thereof and any amendment or supplement thereto (and each
report or other document incorporated therein by reference) complies in all
material respects with the Securities Act and the Exchange Act, (ii) any
registration statement and any amendment thereto does not, when it becomes
effective, contain 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 not misleading, and (iii) any prospectus forming part of
any registration statement, and any amendment or supplement to such
prospectus, does not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(3) (A) With respect to any registration statement, the Company
shall advise the Grantee and, if requested by the Grantee, confirm such
advice in writing:
(i) when a registration statement and any amendment
thereto has been filed with the SEC and when the registration
statement or any post-effective amendment thereto has become
effective; and
(ii) of any request by the SEC for amendments or
supplements to the registration statement or the prospectus
included therein or for additional information.
(B) The Company shall advise the Grantee and, if
requested by the Grantee, confirm such advice in writing of:
(i) the issuance by the SEC of any stop order suspending
effectiveness of such registration statement or the initiation of
any proceedings for that purpose;
(ii) the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities
included therein for sale in any jurisdiction or the initiation of
any proceeding for such purpose; and
(iii) the happening of any event that requires the making
of any changes in such registration statement or the prospectus so
that, as of such date, the registration statement and the
prospectus do not contain an untrue statement of a material fact
and do not omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the case
of the prospectus, in the light of the circumstances under which
they were made) not misleading (which advice shall be accompanied
by an instruction to suspend the use of the prospectus relating to
the Grantee Common Stock Registrable Shares until the requisite
changes have been made).
(4) The Company shall use its best efforts to prevent the
issuance, and if issued to obtain the withdrawal, of any order suspending
the effectiveness of the registration statement relating to the Grantee
Common Stock Registrable Shares at the earliest possible time.
(5) The Company shall furnish to the Grantee with respect to the
registration statement relating to the Grantee Common Stock Registrable
Shares, without charge, such number of copies of such registration
statement and any post-effective amendment thereto, including financial
statements and schedules, and all reports, other documents and exhibits
(including those incorporated by reference) as the Grantee shall reasonably
request.
(6) The Company shall furnish to the Grantee such number of copies
of any prospectus (including any preliminary prospectus and any amended or
supplemented prospectus) relating to the Grantee Common Stock Registrable
Shares, in conformity with the requirements of the Securities Act, as the
Grantee may reasonably request in order to effect the offering and sale of
the shares of Grantee Common Stock Registrable Shares to be offered and
sold, but only while the Company shall be required under the provisions
hereof to cause the registration statement to remain current, and the
Company consents (except during the continuance of any event described in
Sections 2(b) or 2(c)(3)(B)(iii) to the use of the prospectus or any
amendment or supplement thereto by the Grantee in connection with the
offering and sale of the Grantee Common Stock Registrable Shares covered by
the prospectus or any amendment or supplement thereto.
(7) Prior to any offering of Grantee Common Stock Registrable
Shares pursuant to any registration statement, the Company shall use its
reasonable best efforts to register or qualify the shares of Grantee Common
Stock Registrable Shares covered by such registration statement under the
securities or blue sky laws of such states as the Grantee shall reasonably
request, maintain any such registration or qualification current until the
earlier of the sale of the shares of Grantee Common Stock Registrable
Shares so registered or 90 days subsequent to the effective date of the
registration statement, and do any and all other acts and things either
reasonably necessary or advisable to enable the Grantee to consummate the
public sale or other disposition of the shares of Grantee Common Stock
Registrable Shares in jurisdictions where the Grantee desires to effect
such sales or other disposition; provided, however, that the Company shall
not be required to (A) take any action that would subject it to the general
jurisdiction of the courts of any jurisdiction in which it is not then
subject, (B) subject itself to taxation in any such jurisdiction, (C) file
a general consent to service of process in any such jurisdiction, (D)
provide any undertakings that could cause the Company undue expense or
burden, (E) make any change in its charter or bylaws, which in each case
the Board of Directors of the Company determines to be contrary to the best
interests of the Company and its stockholders, or (F) qualify as a foreign
corporation in any jurisdiction where the Company is not then qualified.
(8) In connection with any offering of shares of Grantee Common
Stock Registrable Shares registered pursuant to this Agreement, the Company
shall (x) furnish the Grantee, at the Company's expense, on a timely basis
with certificates free of any restrictive legends representing ownership of
the shares of Grantee Common Stock Registrable Shares being sold in such
denominations and registered in such names as the Grantee shall request,
and (y) instruct the transfer agent and registrar of the Grantee Common
Stock Registrable Shares to release any stop transfer orders with respect
to the shares of Grantee Common Stock Registrable Shares.
(9) Upon the occurrence of any event contemplated by paragraph
2(c)(3)(B)(iii) above, the Company shall promptly prepare a post-effective
amendment to any registration statement or an amendment or supplement to
the related prospectus or file any other required document so that, as
thereafter delivered to purchasers of the Grantee Common Stock Registrable
Shares included therein, the prospectus will not include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading. If the Company notifies the Grantee
of the occurrence of any event contemplated by Sections 2(b) or
2(c)(3)(B)(iii) above, the Grantee shall suspend the use of the prospectus,
for a period not to exceed sixty (60) calendar days in accordance with
Section 2(b), until the requisite changes to the prospectus have been made.
(10) The Company shall, if requested, promptly include or
incorporate in a prospectus supplement or post-effective amendment to a
registration statement, such information as the managing underwriters
administering an underwritten offering of the Grantee Common Stock
Registrable Shares registered thereunder reasonably request to be included
therein and to which the Company does not reasonably object and shall make
all required filings of such prospectus supplement or post-effective
amendment as soon as practicable after they are notified of the matters to
be included or incorporated in such prospectus supplement or post-effective
amendment.
(11) If requested, the Company shall enter into an underwriting
agreement with a nationally recognized investment banking firm or firms
reasonably acceptable to the Company containing representations,
warranties, indemnities and agreements then customarily included by an
issuer in underwriting agreements with respect to secondary underwritten
distributions, and in connection therewith, if an underwriting agreement is
entered into, cause the same to contain indemnification provisions and
procedures substantially identical to those set forth in Section 4 of this
Agreement (or such other provisions and procedures acceptable to the
managing underwriters, if any) with respect to all parties to be
indemnified pursuant to Section 4 of this Agreement.
(12) In the event of an underwritten public offering, then the
Company shall (i) make reasonably available for inspection by Grantee and
its counsel, any underwriter participating in any distribution pursuant to
such registration statement, and any attorney, accountant or other agent
retained by the Grantee or any such underwriter, all relevant financial and
other records, pertinent corporate documents and properties of the Company
and its subsidiaries, (ii) cause the Company's officers, directors and
employees to make reasonably available for inspection all relevant
information reasonably requested by Grantee or any such underwriter,
attorney, accountant or agent in connection with any such registration
statement, in each case, as is customary for similar due diligence
examinations; provided, however, that any such information shall be
protected by a mutually agreeable confidentiality agreement, (iii) obtain
opinions of counsel to the Company and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory to
the managing underwriters, if any) addressed to the Grantee and the
underwriters, if any, covering such matters as are customarily covered in
opinions requested in underwritten offerings and such other matters as may
be reasonably requested by the Grantee and underwriters (it being agreed
that the matters to be covered by such opinion or written statement by such
counsel delivered in connection with such opinions shall include in
customary form, without limitation, as of the date of the opinion and as of
the effective date of the registration statement or most recent
post-effective amendment thereto, as the case may be, the absence from such
registration statement and the prospectus included therein, as then amended
or supplemented, including the documents incorporated by reference therein,
of an untrue statement of a material fact or the omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein (in the case of the prospectus, in the light of the
circumstances under which they were made) not misleading, (iv) use its best
efforts to obtain "cold comfort" letters and updates thereof from the
independent public accountants of the Company (and, if necessary, any other
independent public accountants of any subsidiary of the Company or of any
business acquired or to be acquired by the Company for which financial
statements and financial data are, or are required to be, included in the
registration statement), addressed to the Grantee and the underwriters, if
any, in customary form and covering matters of the type customarily covered
in "cold comfort" letters in connection with primary underwritten
offerings, and (v) deliver such documents and certificates as may be
reasonably requested by the Grantee and the managing underwriters, if any,
and with any customary conditions contained in the underwriting agreement
or other agreement entered into by the Company.
(13) The Company will use its reasonable best efforts to cause the
Grantee Common Stock Registrable Shares to be admitted for quotation on the
Nasdaq National Market or other stock exchange or trading system on which
the Common Stock primarily trades on or prior to the effective date of any
registration statement hereunder.
(14) With a view to making available the benefits of certain rules
and regulations of the Commission which may at any time permit the sale of
the Grantee Common Stock Registrable Shares to the public without
registration, the Company agrees to:
(A) Make and keep public information available, as those
terms are understood and defined in and interpreted under Rule 144
(or any successor provision) of the Securities Act, at all times;
and
(B) During the term of this Agreement, to furnish to the
Grantee upon request (i) a copy of the most recent annual or
quarterly report of the Company, and (ii) such other reports and
documents of the Company as the Grantee may reasonably request in
availing itself of any rule or regulation of the SEC allowing the
Grantee to sell Grantee Common Stock Registrable Shares without
registration.
3. Expenses.
The Company shall pay all fees and expenses incurred in connection
with the performance of its obligations under Section 1 hereof, including,
without limitation, all Commission and blue sky registration and filing
fees, printing expenses, transfer agents' and registrars' fees, and the
reasonable fees and disbursements of the Company's outside counsel and
independent accountants incurred in connection with the preparation, filing
and amendment of any registration statement authorized by this Agreement
(but excluding underwriters' and brokers' discounts and commissions and
fees of the Grantee and underwriter's counsel and related costs).
4. Indemnification and Contribution.
(a) Indemnification by the Company. In the case of any offering
registered pursuant to this Agreement, the Company agrees to indemnify and
hold the Grantee, its directors, officers, employees, representatives and
agents, and each underwriter (if any) of shares of Grantee Common Stock
Registrable Shares under such registration statement and each person who
controls any of the foregoing within the meaning of Section 15 of the
Securities Act harmless against any and all losses, claims, damages,
liabilities or amounts paid in settlement as permitted by this Agreement to
which they or any of them may become subject under the Securities Act or
any other statute or common law or otherwise, and to reimburse them, from
time to time upon request, for any legal or other expenses incurred by them
in connection with investigating any claims and defending any actions,
insofar as any such losses, claims, damages, liabilities or actions shall
arise out of or shall be based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the registration statement
(or any amendment thereto) relating to the sale of such shares of Grantee
Common Stock Registrable Shares, including all documents incorporated
therein by reference, or the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (ii) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus
(as amended or supplemented if the Company shall have filed with the
Commission any amendment thereof or supplement thereto), if used prior to
the effective date of such registration statement or contained in the
prospectus (as amended or supplemented if the Company shall have filed with
the Commission any amendment thereof or supplement thereto), if used within
the period during which the Company shall be required to keep the
registration statement to which such prospectus relates current pursuant to
the terms of this Agreement, or the omission or alleged omission to state
therein a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that the indemnification agreement contained
in this Section 4(a) shall not apply to such losses, claims, damages,
liabilities or actions which shall arise from the sale of shares of Grantee
Common Stock Registrable Shares to any person if such losses, claims,
damages, liabilities or actions shall arise out of or shall be based upon
any such untrue statement or alleged untrue statement, or any such omission
or alleged omission, if such statement or omission shall have been (x) made
in reliance upon and in conformity with information furnished in writing to
the Company by or on behalf of the Grantee or any such underwriter
specifically for use in connection with the preparation of the registration
statement or any such amendment thereof or any preliminary prospectus or
prospectus contained in such registration statement or any such amendment
thereof or supplement thereto, or (y) made in any preliminary prospectus,
and the prospectus contained in the registration statement as declared
effective or in the form filed by the Company with the Commission pursuant
to Rule 424 of the Securities Act shall have corrected such statement or
omission and a copy of such prospectus shall have been sent or given to
such person at or prior to the confirmation of such sale to him.
(b) Indemnification by the Grantee. In the case of each offering
registered pursuant to this Agreement, the Grantee agrees, in the same
manner and to the same extent as set forth in Section 4(a) of this
Agreement to indemnify and hold harmless the Company, its directors,
officers, employees, representatives and agents, and each underwriter (if
any) of shares of Grantee Common Stock Registrable Shares under such
registration statement and each person who controls any of the foregoing
within the meaning of Section 15 of the Securities Act with respect to any
statement in or omission from such registration statement or any
preliminary prospectus (as amended or as supplemented, if amended or
supplemented as aforesaid) or prospectus contained in such registration
statement (as amended or as supplemented, if amended or supplemented as
aforesaid), if such statement or omission shall have been made in reliance
upon and in conformity with information furnished in writing to the Company
by or on behalf of the Grantee specifically for use in connection with the
preparation of the registration statement or any such amendment thereof or
any preliminary prospectus or prospectus contained in such registration
statement or any such amendment thereof or supplement thereto.
(c) Notice of Claims. Each party indemnified under Section 4(a) or
Section 4(b) of this Agreement shall, promptly after receipt of notice of
the commencement of any action, suit, claim, proceeding or investigation
(collectively, a "Claim") against such indemnified party in respect of
which indemnity may be sought, notify the indemnifying party in writing of
the commencement thereof, enclosing a copy of all papers served on such
indemnified party. The failure of any indemnified party so to notify
promptly an indemnifying party of any such Claim shall not relieve the
indemnifying party from any liability in respect of such action which it
may have to such indemnified party on account of the indemnity agreement
contained in Section 4(a) or Section 4(b) of this Agreement, unless the
indemnifying party was prejudiced by such failure, and in no event shall
relieve the indemnifying party from any other liability which it may have
to such indemnified party. In case any such Claim shall be brought against
any indemnified party and it shall notify promptly an indemnifying party of
the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it may wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party; provided
that if any indemnified party or parties reasonably determine(s) after
consultation with, and based on the advice of, outside, qualified legal
counsel that there may be legal defenses available to such indemnified
party that are different from or in addition to those available to such
indemnifying party or that representation of such indemnifying party and
any indemnified party by the same counsel would present a conflict of
interest under applicable rules of attorney professional conduct, then such
indemnifying party shall not be entitled to assume such defense. If an
indemnifying party assumes the defense of an action in accordance with and
as permitted by the provisions of this paragraph, such indemnifying party
shall not be liable to such indemnified party under Section 4(a) or Section
4(b) of this Agreement for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof
other than reasonable costs of investigation. In no event shall the
indemnifying party be liable for the fees and expenses of more than one
counsel (in addition to local counsel) separate from its own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity provided for in this Section 4 is for
any reason held to be unavailable to the indemnified parties although
applicable in accordance with its terms, the Company and Grantee shall
contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity incurred by the
Company and the Grantee as incurred; provided that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11 (f) of the
Securities Act) shall be entitled to contribution from any person that was
not guilty of such fraudulent misrepresentation. As between the Company, on
the one hand, and the Grantee, on the other hand, such parties shall
contribute to such aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by such indemnity agreement in such
proportion as shall be appropriate to reflect the relative fault of the
Company, on the one hand, and the Grantee, on the other hand, with respect
to the statements or omissions which resulted in such loss, liability,
claim, damage or expense, or action in respect thereof, as well as any
other relevant equitable considerations. The relative fault of the Company,
on the one hand, and of the Grantee, on the other hand, shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company, on the one
hand, or by on behalf of the Grantee, on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Grantee
agree that it would not be just and equitable if contribution pursuant to
this Section 4 were to be determined by pro rata allocation or by any other
method of allocation that does not take into account the relevant equitable
considerations. For purposes of this Section 4(d), each person who controls
the Company or the Grantee within the meaning of Section 15 of the
Securities Act shall have the same rights to contribution as the Grantee or
the Company, as the case may be. No party shall be liable for contribution
with respect to any action, suit, proceeding or claim settled without its
written consent.
(e) The Company may require, as a condition to entering into any
underwriting agreement with respect to the registration of Grantee Common
Stock Registrable Shares, that the Company shall have received an
undertaking reasonably satisfactory to it from each underwriter named in
any such underwriting agreement, severally and not jointly, to comply with
the provisions of paragraphs (a) through (d) of this Section 4.
(f) The obligations of the Company and the Grantee under this
Section 4 shall survive (1) during the pending of any investigation with
respect to a Claim and (2) the completion of any offering of Grantee Common
Stock Registrable Shares in a registration statement.
5. Notices. All consents, notices, documents, certificates,
information and legal process to be delivered to or served upon
any party to this Agreement shall be in writing and (a) delivered
personally, (b) sent by facsimile transmission, (c) sent by
registered or certified mail, postage prepaid, or (d) sent by
recognized overnight courier to the applicable party hereto at the
address stated below or in accordance with the last unrevoked
written direction from such party to the other party(ies) hereto.
Unless otherwise provided herein, all notices shall be deemed to
have been given on (1) the date of receipt (or if delivery is
refused, the date of such refusal) if delivered personally or by
courier, (2) three days after the date of posting if sent by
registered or certified mail, postage prepaid or (3) if
transmitted by facsimile, the date that confirmation of
transmission is received by the sending party.
(x) if to the Company, to it at:
CoreComm Limited
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Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(y) if to the Grantee, to it at:
Chase Securities Inc.
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
All such notices and communications shall be effective when received by the
addressee.
6. Governing Law. This Agreement shall be governed in all respects by
the internal laws of the State of Delaware as applied to contracts
entered into solely between residents of, and to be performed
entirely within, such state, and without reference to principles
of conflicts of laws or choice of laws.
7. Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the
subject matter hereof and supersedes all prior agreements and
understandings among the parties relating to the subject matter
hereof.
8. Amendments and Waivers. The provisions of this Agreement 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 holders that
Beneficially Own, in the aggregate, 50% or more of the Common
Stock Registrable Shares.
9. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their
respective successors and assigns, subject to the assignment
provisions contained in Section 12 of this Agreement.
10. Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall
remain in full force and effect and shall in no way be affected,
impaired or invalidated.
11. Termination of Company Obligation. All registration rights and
obligations of the Company associated therewith provided in this
Agreement shall terminate upon the earlier of (A) the sale of all
the Grantee Common Stock Registrable Shares under an effective
registration statement and (B) the date of delivery to the Grantee
of a written opinion of counsel to the Company (which may be the
Company's in-house counsel), reasonably acceptable to the Grantee,
that Grantee is able to sell all of its Grantee Common Stock
Registrable Shares without registration under the Securities Act
or any successor provision thereto during any single three-month
period under Rule 144 of the Securities Act.
12. Assignment. The Grantee's right to have the Company register
Grantee Common Stock Registrable Shares pursuant to this Agreement
shall be automatically assignable by the Grantee to any transferee
or assignee (other than the transferee or assignee of such shares
in a registered transaction) of all or any portion of any Warrant
or the underlying Grantee Common Stock Registrable Shares if: (i)
the Grantee is permitted at such time under the terms of such
Warrant to sell, transfer, assign, pledge, hypothecate, encumber,
convey in trust, gift or otherwise dispose of all or any portion
of such Warrant or the underlying Grantee Common Stock Registrable
Shares proposed to be transferred or assigned, (ii) the Grantee
agrees in writing with the transferee or assignee to assign such
rights, and a copy of such agreement is furnished promptly to the
Company after such assignment, (iii) the Company is, prior to such
transfer or assignment, furnished with written notice of (a) the
name and address of such transferee or assignee and (b) the number
and type of Company securities with respect to which such
registration rights are being assigned, (iv) following such
transfer or assignment, the further disposition of such securities
of the Company by the transferee or assignee is restricted under
the Securities Act and applicable State securities laws, (v) at or
before the time the Company receives the written notice
contemplated by subsection (iii) above, the transferee or assignee
agrees in writing for the benefit of the Company to be bound by
all of the provisions contained herein (including any subsequent
Grantee becoming bound to the provisions contained in Section 4
and this Section 12), (vi) such transfer or assignment shall have
complied with all applicable terms and conditions of such Warrant,
(vii) such transfer or assignment shall have complied with all
applicable Federal and State securities laws and (viii) such
transferee or assignee shall be an "accredited investor" as that
term is defined in Rule 501 (a) of Regulation D promulgated under
the Securities Act. Following any permitted assignment of the
rights under this Section 12, the term "Grantee" as used in this
Agreement will be deemed to include such transferees or assignees.
13. Definitions. As used herein, the following terms shall have the
following respective meanings:
"Beneficial Ownership" shall have the meaning set forth
in Rule 13d-3 under the Exchange Act.
"Board of Directors" means the board of directors of the
Company.
"Commission" means the Securities and Exchange Commission
or any other federal agency at the time administering the Securities Act.
"Common Stock" means the common stock, par value $0.01
per share, of the Company or any other equity securities of the Company
into which such securities are converted, reclassified, reconstituted or
exchanged.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended, or any successor federal statute, and the rules and regulations
of the Commission promulgated thereunder, all as the same shall be in
effect at the relevant time.
"Person" means any individual, firm, corporation, limited
liability company, 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, and shall
include any successor (by merger or otherwise) of any such entity.
"Securities Act" means the Securities Act of 1933, or any
successor federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect at the relevant
time.
"Underwritten Offering" shall mean a sale of securities
of the Company to an underwriter or underwriters for re-offering to the
public, which shall include a road show and other customary selling
efforts.
14. No Third Party Beneficiary Rights. This Agreement is made solely
and specifically between and for the benefit of the Company and
the Grantee, except with respect to covered indemnitees under
Section 4 and permitted transferees and assignees under Section
12.
15. Joinder. A Person may become joined to this Agreement in
accordance with and compliance with the provisions of Section 12.
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SIGNATURE PAGE - REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly authorized and executed by their respective authorized officers
as of the date first set forth above.
CORECOMM LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
CHASE SECURITIES INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇
Title: Vice President
