Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is
entered into as of this 12th day of April, 2001, by and between CoreComm
Limited, a Delaware corporation (the "Company") and NTL Incorporated, a
Delaware corporation (the "Purchaser").
WHEREAS, the Purchaser intends to purchase $15,000,000 of
aggregate principal amount of 10.75% Unsecured Convertible PIK Notes due
2011 of the Company (the "Convertible Notes"), pursuant to the terms and
conditions of a letter agreement, dated as of April 12, 2001 (the "Purchase
Agreement");
WHEREAS, the Convertible Notes are convertible into
shares of the Company's common stock, par value $0.01 per share (the
"Common Stock");
WHEREAS, the Purchaser will receive as interest on the
Convertible Notes on each interest payment date specified in the
Convertible Notes an additional principal amount of the Convertible Notes
(the "PIK Notes" and together with the Convertible Notes, the "Company
Convertible Notes"), which PIK Notes will be convertible into shares of
Common Stock at a conversion price to be established upon issuance, subject
to the terms and conditions of the respective PIK Notes;
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 Xxxxxxx.xxx, 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);
WHEREAS, the Company entered into a Registration Rights
Agreement (the "Booth Agreement"), dated 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);
WHEREAS, the Company entered into a Registration Rights
Agreement (the "Chase Agreement"), dated as of December 15, 2000, and
amended and restated as of April 12, 2001, with Chase Securities Inc. for
its benefit;
WHEREAS, the company entered into a Registration Rights
Agreement (the "Xxxxxx Xxxxxxx Agreement"), dated as of January 25, 2001,
with Xxxxxx Xxxxxxx Senior Funding Inc. for its benefit; and
WHEREAS, as a condition to Purchaser's obligation to
close the transactions contemplated under the Purchase Agreement, the
Company has agreed to enter into this Agreement with the Purchaser.
NOW, THEREFORE, in consideration of the foregoing, the
parties to this Agreement hereby agree as follows:
1. (a) Shelf Registration. On and after September 29,
2001, the Purchaser shall be entitled to request the
Company one time in writing to cause to be filed with
the Securities and Exchange Commission (the "SEC") a
registration statement registering under Rule 415 under
the Securities Act of 1933, as amended (the "Securities
Act") the resale of all of the shares of Common Stock
issuable upon conversion of the Company Convertible
Notes ("Subject Stock") (such registration the "Shelf
Registration"). The Company shall use its best efforts
to cause such Shelf Registration to be declared
effective under the Securities Act as soon as
practicable following the filing thereof, and shall use
its best efforts to cause such Shelf Registration to
remain continuously effective under the Securities Act
for a period of five years from the date it is declared
effective (or such shorter period that will terminate
when all of the Subject Stock covered by the Shelf
Registration has been sold), subject to the provisions
of Section 2(b) and Section 2(c)(3)(B)(iii). Subject to
the provisions of Section 2(b) and Section
2(c)(3)(B)(iii), the Company agrees, if necessary, to
supplement or make amendments to the Shelf Registration,
if required by the registration form used by the Company
for the Shelf Registration or by the instructions
applicable to such registration form or by the
Securities Act or the rules or regulations thereunder.
(b) Demand Registration. In the event that the
Shelf Registration cannot be declared effective or, if
it is declared effective and is not maintained as
effective for the period required by Section 1(a), (i)
beginning on the date that is the twelve-month
anniversary of the date of this Agreement, the Purchaser
shall be entitled to request the Company up to two times
in writing to register for resale under the Securities
Act any or all of the shares of Subject Stock and (ii)
beginning on the date that is the forty-eight month
anniversary of the date of this Agreement, the Purchaser
shall be entitled to request the Company up to one
additional time in writing to register the resale under
the Securities Act of any or all of the shares of
Subject Stock. In the event that the Shelf Registration
can be declared effective, the Purchaser shall only be
entitled to one such request beginning after the period
during which the Shelf Registration must be kept
effective. The Company shall use its best efforts to
cause the shares of Subject Stock specified in such
request to be registered as soon as reasonably
practicable so as to permit the sale thereof, and in
connection therewith shall prepare and file a Form S-3
registration statement or such other form as the Company
is eligible to use (or any successor form of
registration statement to such Form S-3 or other
available registration statement) with the SEC under the
Securities Act to effect such registration; provided,
however, that each such request shall (i) specify the
number of shares of Subject Stock intended to be offered
and sold, (ii) express the present intention of the
Purchaser to offer or cause the offering of such shares
of Subject Stock for distribution, (iii) describe the
nature or method of the proposed offer and sale thereof,
(iv) contain the undertaking of the Purchaser to provide
all such information and materials and take all such
action as may be required in order to permit the Company
to comply with all applicable requirements of the SEC
and to obtain any desired acceleration of the effective
date of such registration statement and (v) if the
request is to register 1,500,000 shares of Subject Stock
or more, contain the undertaking of the Purchaser to
sell such securities, if possible, through an
underwritten public offering with a nationally
recognized investment bank(s) acceptable to the Company.
(c) Incidental or "Piggy-Back" Registration
Rights.
(1) Notice of Registration. In the
event that the Shelf Registration cannot be declared
effective, at any time beginning on the date that is the
twelve-month anniversary of the date of this Agreement
and thereafter from time to time, until the sixty month
anniversary of this Agreement, if the Company 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 adopted in the
ordinary course of business 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 other than the Purchaser
(a "Third Party Demand Registration"), the Company will
promptly give to the Purchaser written notice thereof,
and include in such registration (subject to the
restrictions contained in other registration rights
agreements to which the Company is a party and Section
1(c)(2)) all the Subject Stock specified in a written
request delivered by the Purchaser to the Company within
ten days after such Stockholder's receipt of such
written notice from the Company (an "Incidental
Registration"). If at any time after giving written
notice of its intention to register any securities and
prior to the effective date of the registration
statement filed in connection with such registration,
the Company shall determine for any reason either not to
register or to delay registration of such securities,
the Company may, in its sole election, give written
notice of such determination to each holder of Subject
Stock and, thereupon, (A) in the case of a determination
not to register, shall be relieved of its obligation to
register any Subject Stock in connection with such
registration (but not from its obligations under Section
3), without prejudice, however, to the rights of any
holder of Subject Stock entitled to do so to request
that such registration be effected as a registration
under Section 1(a) or Section 1(b) and (B) in the case
of a determination to delay registering, shall be
permitted to delay registering any Subject Stock, for
the same period as the delay in registering such other
securities. The right of the Purchaser to have Subject
Stock included in a registration pursuant to this
Section 1(c)(1) shall be conditioned upon the Purchaser
entering into (together with the Company and/or the
other holders, if any, distributing their Company
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.
(2) Cutback. If the lead managing
underwriter of an offering covered by Section 1(c)(1)
shall advise the Company 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
Subject Stock) requested to be included in such
registration statement exceeds the amount which can be
sold in such offering without adversely affecting the
success of such offering, then the Company will include
in such registration:
(i) in the case of a Company
Registration, first, any shares of
Common Stock 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; third, the shares of Common
Stock which have been requested to be
registered by the holders requesting
such registration pursuant to the
Chase Agreement and the Xxxxxx Xxxxxxx
Agreement ("Other First Priority
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; fourth, the
shares of Common Stock which have been
requested to be registered by the
Purchaser ("Other Second Priority
Registration"); and fifth, the shares
of Common Stock which have been
requested to be registered by any
other holder entitled to incidental or
piggyback registration after the date
of this Agreement ("Other Third
Priority 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 such time; and
(ii) in the case of a Third Party
Demand Registration, first, any shares
of Common Stock 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 of Common Stock
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; fourth, the shares of Common
Stock which have been requested to be
registered by the holders entitled to
Other First Priority 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; fifth, the shares of Common
Stock which have been requested to be
registered by the Purchaser entitled
to Other Second Priority Registration;
and sixth, the shares of Common Stock
which have been requested to be
registered by any holder entitled to
Other Third Priority 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 Subject Stock requested
to be included in such registration, the
Purchaser may, upon written notice to the
Company given within three days of the date the
Purchaser is first notified of such matter,
reduce the amount of Subject Stock the Purchaser
desires to have included in such registration,
whereupon only the Subject Stock, if any, the
Purchaser desires to have included will be
considered for such inclusion.
2. Obligations of the Company.
(a) Whenever the Company is required by the
provisions of this Agreement to use its best efforts to
effect the registration of any Subject 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
Subject Stock, and shall use its best efforts to cause
such registration statement to become effective and to
remain effective until the earlier of the sale of the
shares of Subject Stock so registered or such time as
Purchaser may sell all of the shares of Subject Stock
pursuant to Rule 144 within a three-month period (other
than in the case of the Shelf Registration, which shall
be kept effective in accordance with Section 1(a)), (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 Subject
Stock so registered or such time as Purchaser may sell
all of the shares of Subject Stock pursuant to Rule 144
within a three-month period (other than in the case of
the Shelf Registration, which shall be kept effective in
accordance with Section 1(a)), and (iii) take all such
other action either necessary or desirable to permit the
shares of Subject Stock held by the Purchaser to be
registered and disposed of in accordance with the method
of disposition described herein.
(b) Notwithstanding the foregoing, if the Company
shall furnish to the Purchaser a certificate signed by
its Chairman, Chief Executive Officer or Chief Financial
Officer, dated the date of its delivery to the Purchaser
stating that (i) filing a registration statement or
maintaining effectiveness of a current registration
statement could reasonably be expected to 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, (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,
(iii) the Company has had declared effective by the SEC
another registration statement within ninety days of the
date of its certificate, (iv) under applicable rules,
regulations or Staff policies, practices and procedures
of the SEC, the Company is not permitted to file or
obtain or maintain effectiveness of a current
registration statement or (v) within ninety days of the
date of its certificate the Company plans on engaging in
an underwritten offering for its own account, the
Company shall be entitled to postpone filing or suspend
the use by the Purchaser of the registration statement
and the prospectus forming a part thereof and direct
that sales under such registration statement be
suspended for a reasonable period of time, but not in
excess of ninety consecutive calendar days. The Company
shall be entitled to exercise such suspension rights one
time in any calendar year. The Company shall not be
required to effect the Shelf Registration pursuant to
Section 1(a) or a demand registration pursuant to
Section 1(b) if as a result of such registration a
registration statement in respect of such securities
could reasonably be expected to be declared effective by
the SEC within ninety days of the effective date of any
registration effected pursuant to Section 2.1(b) of the
ATX Agreement, but only until such time (if any) as such
restriction shall no longer be effective (as a result of
the termination of or any amendment to the ATX Agreement
or otherwise).
(c) In connection with any registration
statement, the following provisions shall apply:
(1) The Company shall furnish to the
Purchaser, 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
Purchaser 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 Securities Exchange Act
of 1934, as amended and the respective rules and regulations
thereunder, (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) The Company shall advise the
Purchaser and, if requested by the Purchaser, 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
Purchaser and, if requested by the Purchaser, confirm
such advice in writing of:
(i) the issuance by the SEC of any
stop order suspending
effectiveness of the
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 the 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
Subject Stock 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 Subject Stock at the earliest possible
time.
(5) The Company shall furnish to the
Purchaser with respect to the registration statement relating to
the Subject Stock, 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 Purchaser shall reasonably request.
(6) The Company shall furnish to the
Purchaser such number of copies of any prospectus (including any
preliminary prospectus and any amended or supplemented prospectus)
relating to the Subject Stock, in conformity with the requirements
of the Securities Act, as the Purchaser may reasonably request in
order to effect the offering and sale of the shares of Subject
Stock 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 Section 2(b) or
Section 2(c)(3)(B)(iii) to the use of the Prospectus or any
amendment or supplement thereto by the Purchaser in connection
with the offering and sale of the Subject Stock covered by the
Prospectus or any amendment or supplement thereto.
(7) Prior to any offering of Subject Stock
pursuant to any registration statement, the Company shall use its
reasonable best efforts to register or qualify the shares of
Subject Stock covered by such registration statement under the
securities or blue sky laws of such states as the Purchaser shall
reasonably request, maintain any such registration or
qualification current until the earlier of the sale of the shares
of Subject Stock so registered or ninety 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 Purchaser to consummate the public sale or other
disposition of the shares of Subject Stock in jurisdictions where
the Purchaser desires to effect such sales or other disposition;
provided, however, that the Company shall not be required to take
any action that would subject it to the general jurisdiction of
the courts of any jurisdiction in which it is not to subject or to
qualify as a foreign corporation in any jurisdiction where the
Company is not so qualified.
(8) In connection with any offering of shares
of Subject Stock registered pursuant to this Agreement, the
Company shall (x) furnish the Purchaser, at the Company's expense,
on a timely basis with certificates free of any restrictive
legends representing ownership of the shares of Subject Stock
being sold in such denominations and registered in such names as
the Purchaser shall request, and (y) instruct the transfer agent
and registrar of the Subject Stock to release any stop transfer
orders with respect to the shares of Subject Stock.
(9) Upon the occurrence of any event
contemplated by Section 2(c)(3)(B)(iii), 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 Subject Stock 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
Purchaser of the occurrence of any event contemplated by Section
2(b) or Section 2(c)(3)(B)(iii), the Purchaser shall suspend the
use of the prospectus, for a period not to exceed ninety 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 Subject Stock 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 statement 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 national 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 (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.
(12) In the event the Purchaser proposes to
conduct an underwritten public offering, then the Company shall
(i) make reasonably available for inspection by Purchaser and its
counsel, any underwriter participating in any distribution
pursuant to such registration statement, and any attorney,
accountant or other agent retained by the Purchaser 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 Purchaser 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 Purchaser 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 Purchaser 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 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
Purchaser 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 Purchaser 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 best efforts to
cause the Subject Stock 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.
(d) With a view to making available the benefits
of certain rules and regulations of the SEC which may at any time
permit the sale of the Subject Stock to the public without
registration, the Company agrees to:
(1) 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
(2) During the term of this Agreement, to
furnish to the Purchaser 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 Purchaser may reasonably request
in availing itself of any rule or regulation of the
SEC allowing the Purchaser to sell any such
securities without registration.
3. Expenses. The Company shall pay all fees and expenses incurred
in connection with the performance of its obligations under
Section 1 and Section 2, including, without limitation, all SEC
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 Purchaser 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 Purchaser, each underwriter (if any) of
shares of Subject Stock under such registration statements 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 Subject Stock, 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 SEC 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 SEC 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 (if so used) 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 Subject Stock 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 the Purchaser or any such
underwriter specifically for use in connection with the
preparation of the registration statement or any such amendment
thereof of 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 SEC pursuant to Rule 424 under 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 Purchaser. In the case of each
offering registered pursuant to this Agreement, the Purchaser
agrees, in the same manner and to the same extent as set forth in
Section 4(a) to indemnify and hold harmless the Company and each
person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act, its directors and those officers
of the Company who shall have signed any such registration
statement 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 document (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
the Purchaser specifically for use in connection with the
preparation of such registration statement or any preliminary
prospectus or prospectus contained in such registration statement
or any such amendment thereof of supplement thereto.
(c) Notice of Claims. Each party indemnified under
Section 4(a) or Section 4(b) shall, promptly after receipt of
notice of the commencement of any action 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 omission of any indemnified party so to notify an indemnifying
party of any such action 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), unless the indemnifying
party was prejudiced by such omission, 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 action shall
be brought against any indemnified party and it shall notify 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
satisfactory to such indemnified party; provided that if any
indemnified party or parties reasonably determine 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, 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 Section 4(c), such indemnifying party shall
not be liable to such indemnified party under Section 4(a) or
Section 4(b) 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 of 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 Purchaser shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature
contemplated by said indemnity incurred by the Company and the
Purchaser 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 Purchaser, 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 Purchaser, 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
Purchaser, 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 Purchaser, 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 Purchaser 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 Purchaser within the meaning of
Section 15 of the Securities Act shall have the same rights to
contribution as the Purchaser 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 Subject Stock, 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 subsections (a) through
(d) of this Section 4.
(f) The obligations of the Company and the Purchaser
under this Section 4 shall survive the completion of any offering
of Subject Stock in a registration statement.
5. Notices. Any notice or other communication given under this
Agreement shall be sufficient if in writing and sent by registered
or certified mail, return receipt requested, postage prepaid, to a
party at its address set forth below (or at such other address as
shall be designated for such purpose by such party in a written
notice to the other party hereto):
(a) if to the Company, to it at:
CoreComm Limited
000 Xxxx 00xx Xxxxxx
26th Floor
New York, New York 10022
Attention: General Counsel
(b) if to the Purchaser, to it at:
NTL Incorporated
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
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; Amendments. 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.
Neither this Agreement nor any term hereof may be amended, waived,
discharged or terminated other than by a written instrument signed by the
party against whom enforcement of any such amendment, waiver, discharge or
termination is sought.
8. 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.
9. 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.
10. Termination of Company Obligation. All registration rights
provided hereunder shall terminate upon such time as, in the written
opinion of counsel to the Company (which may be the Company's in-house
counsel), reasonably acceptable to the Purchaser, upon the earlier of the
sale of the shares of Subject Stock so registered or such time as Purchaser
may sell all of the shares of Subject Stock pursuant to Rule 144 within a
three-month period.
11. No Transfer or Assignment or Registration Rights. The registration
rights set forth in this Agreement shall not be transferable or assignable
by the Purchaser, except to (i) any person or group approved in writing by
the Company, (ii) a corporation of which the Purchaser owns not less than
50% of the voting power entitled to be cast in the election of directors,
(iii) a nationally recognized investment banking firm in connection with a
hedging or other derivative transactions in Subject Stock or (iv) a person
or entity that, directly or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with the Purchaser;
provided, however, that each transferee agrees in writing prior to such
proposed transfer to be subject to all of the terms and conditions of this
Agreement and the Purchase Agreement, as determined to be applicable in the
sole discretion of the Company. Following any transfer of such rights
permitted by this Section 11, the term "Purchaser" as used in this
Agreement will be deemed to include such transferees.
SIGNATURE PAGE - REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective duly authorized
officers as of the date first set forth above.
CoreComm Limited, a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
NTL Incorporated, a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President
