Exhibit 4.9
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement" is entered into
as of this 28th day of September, 2000, between CoreComm Limited, a Bermuda
corporation (the "Company"), and Booth American Company, a Michigan
corporation (the "Purchaser").
WHEREAS, the Purchaser intends to purchase (a) 50,000 shares of 8.5%
Senior Convertible Preferred Stock, par value, $.01 per share (the "8.5%
Preferred Stock") of the Company, pursuant to the terms and conditions of a
Stock Purchase Agreement dated as of August 4, 2000 (the "Purchase
Agreement");
WHEREAS, each share of 8.5% Preferred Stock is convertible into
shares of the Company's Common Stock, par value $.01 (the "Common Stock");
WHEREAS, the Purchaser may receive as dividends on the 8.5% Preferred
Stock additional shares of preferred stock of a different series (together
with the 8.5% Preferred Stock, the "Preferred Stock") which is convertible
into Common Stock at a conversion price to be established upon issuance; and
WHEREAS, as a condition to Purchaser's obligation to close the
transactions contemplated under the Purchase Agreement, Company must 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. Beginning on the date that is the
twelve-month anniversary of this Agreement, the Purchaser shall be
entitled to request the Company one (1) time in writing to cause to
be filed with the Securities and Exchange Commission a Registration
Statement registering under Rule 415 under the Securities Act of
1933, as amended, (the "Securities Act") the sale or resale of all of
the shares of Preferred Stock and all of the Shares of Common Stock
issuable upon conversion (the Preferred Stock and such Common Stock
collectively the "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
(5) 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 increase pursuant
to Section 2(b). Subject to the provisions of Section 2(b), 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 (2) times in writing to
register for resale under the Securities Act any or all of the shares
of the Subject Stock and (ii) beginning on the date that is the
four-year anniversary of the date of this Agreement, the Purchaser
shall be entitled to request the Company up to one (1) additional
time in writing to register the resale under the Securities Act of
any or all of the shares of the Subject Stock. In the event that the
Shelf Registration can be declared effective, the Purchaser shall
only be entitled to one (1) 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 is then available (or any successor
form of registration statement to such Form S-3 or other available
registration statement) with the Securities and Exchange Commission
(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, 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 Company's
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
Section 1(c)(2)) all the Subject Stock specified in a written request
made by any one or more of the Stockholders within ten days after
such Stockholder's receipt of such written notice from the Company
("Incidental Registration"). The right of the Stockholder to have
Subject Stock included in a registration pursuant to this Section
1(c)(1) shall be conditioned upon such Stockholder 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") .
(2) Cutback. If the lead managing underwriter of an offering
covered by Section 1(c)(1) 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
Subject Stock) 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) subject to the registration rights agreements
between the Company and each of ATX Telecommunications
Services, Inc., a Delaware corporation, and Xxxxxxx.xxx,
Inc., a Delaware corporation (together, the "ATX-Voyager
Agreements"), in the case of a Company Registration, first,
any shares proposed to be offered by the Company; second,
Subject Stock requested to be registered by the Purchaser
and any other shares requested by other preferred
stockholders of the Company to be included in such
registration, allocated, if necessary, pro rata among the
Purchaser and such other preferred stockholders requesting
such registration on the basis of the number of shares
requested by each to be included in such registration; and
third, any other shares requested by other stockholders of
the Company to be included in such registration; and
(ii) subject to the ATX-Voyager Agreements, 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, and third, Subject Stock requested to be
registered by the Purchaser and any other shares requested
by other preferred stockholders of the Company, excluding
the Initiating Third Party Holders, to be included in such
registration, allocated, if necessary, pro rata among the
Purchaser and such other preferred stockholders requesting
such registration on the basis of the number of shares
requested by each to be included in such; and fourth, any
other shares requested by other stockholders of the Company
to be included in such registration;
provided, however, that in the event the Company will not, by virtue
of the foregoing cutback mechanism, include in any such registration
all of Subject Stock requested to be included in such registration,
the Purchaser may, upon written notice to the Company given within
three days of the time 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) herein), (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) herein), 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 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 shareholders, 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 Purchaser 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.
Upon each suspension under this Section 2(b), the period during which
the Company is required under Section 1(a) to maintain the
effectiveness of the Shelf Registration will increase by the same
number of days as such suspension.
(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 (the "Exchange
Act") 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 Sections 2(b) or 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 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 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
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 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 Sections 2(b) or
2(c)(3)(B)(iii) above, the Purchaser 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 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;
(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 Sections 1
and 2 hereof, 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) of this Agreement 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) of this Agreement 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) of this Agreement, 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 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 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 paragraphs (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 t the
other party hereto):
(a) if to the Company, to it at:
CoreComm Limited
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
(b) if to the Purchaser, to it at:
Booth American Company
000 Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxx XX
with an additional copy to:
Xxxxxxx X. Xxxxx, Esq.
Bose XxXxxxxx & Xxxxx LLP
000 Xxxxx Xxxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
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, the
Purchaser is able to sell all of its Preferred Stock (or any Common
Stock into which such Preferred Stock is converted) without
! registration under the Securities Act or any successor provision
thereto during any single 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, (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, or (v) a member of the immediate family of Xxxxx
X. Xxxxx XX or of Xxxx X. Xxxxx XX within the meaning of SEC Rule
16a-1(e); provided, however, that each transferee agrees in writing
to be subject to all terms and conditions of this Agreement and the
Purchase Agreement. 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.
12. Limitation on Subsequent Registration Rights. From and after the
date of this Agreement, except for the ATX-Voyager Agreements, the
Company shall not enter into any agreement granting any holder or
prospective holder of any securities of the Company registration
rights with respect to such securities that would allow such holder
or prospective holder to include such securities in any registration
filed under Section 1 of this Agreement, unless under the terms of
such agreement such holder or prospective holder may include such
securities in any such registration only to the extent that the
inclusion of its securities will not reduce the amount of the Subject
Stock of the Purchaser which is included.
[The balance of this page intentionally left blank.]
SIGNATURE PAGE - REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective authorized officers as
of the date set forth above.
CoreComm Limited, a Bermuda
corporation
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President,
General Counsel and
Secretary
Booth American Company,
a Michigan corporation
By: /s/ Xxxxx X. Xxxxx XX
----------------------
Name: Xxxxx X. Xxxxx XX
Title: Chairman and CEO
