Exhibit 4.11
EXECUTION VERSION
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is entered
into as of this 25th day of January 2001, by and between CoreComm Limited,
a Delaware corporation (the "COMPANY"), and Xxxxxx Xxxxxxx Senior Funding
Inc. (the "GRANTEE").
WHEREAS, capitalized terms used but not defined herein shall have
the meanings ascribed thereto in Section 14 hereof;
WHEREAS, as of the date hereof the Company granted a warrant (the
"WARRANT") to Grantee to acquire shares of common stock, $0.01 par value
per share, of the Company (the "COMMON STOCK");
WHEREAS, the Warrant is exercisable into an aggregate of up to
969,000 shares of Common Stock (subject to the anti-dilution adjustments
contained in Section 4 of the Warrant), upon the payment to the Company of
an exercise price of $3.71 per share (the shares of Common Stock issuable
upon exercise of the Warrant, collectively, the "REGISTERABLE SECURITIES");
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 Registerable 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
Registerable Securities (as defined in the Voyager Agreement);
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);
WHEREAS, the Company entered into a Registration Rights Agreement
(the "CHASE AGREEMENT"), as of December 15, 2000 with Chase Securities Inc.
for its benefit; and
WHEREAS, the Grantee has become a Lender under the Credit
Agreement, dated September 28, 2000, as amended, by and among the Company,
the Chase Manhattan Bank and others, as consideration for the issuance of
the Warrant and the Company entering into this 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. Demand Registration Rights
(a) Demand Registration.
(i) At any time on or after the date of this
! Agreement, the Grantee may make a written request to
the Company for registration under the Securities Act
(a "DEMAND REGISTRATION") of all or part of the
shares of Common Stock constituting its Registerable
Securities; provided, however, that, (A) the Company
shall not be required to effect more than one (1)
Demand Registration pursuant to this Agreement, (B)
the number of shares of Common Stock proposed to be
registered by the Grantee shall not be less than
490,500 shares (subject to appropriate adjustments to
reflect stock splits, stock dividends, corporate
recapitalizations or similar transactions) as of the
date of the written request and (C) the Grantee shall
be the holder as of the date of the written request
of at least 50% of the then outstanding shares of
Common Stock that constitute Registerable Securities
hereunder.
(ii) Within ten (10) days after receipt by the
Company of a written request for a Demand
Registration, the Company shall give written notice
(the "NOTICE") of such request to all Persons
Beneficially Owning shares of Common Stock who are
contractually entitled (other than pursuant to this
Agreement) to include their shares of Common Stock in
such registration statement and, subject to
subsection (c)(i) below, shall include in such
registration statement all shares of Common Stock
that the Company has received written requests for
inclusion therein within ten (10) days after the
Notice is given. Thereafter, subject to subsection
(c)(i) below, the Company may elect to include in
such registration shares of Common Stock to be sold
by the Company. All requests made pursuant to this
Section 1(a) shall specify the class and aggregate
number of Registerable Securities to be registered.
(b) Effective Demand Registration. Subject to Section 3(b),
the Company shall use reasonable commercial efforts to cause
any Demand Registration to become effective not later than
one hundred twenty (120) days (ninety (90) days if the
Company is eligible to use Form S-3 under the Securities for
a resale registration statement) after it receives a written
request under Section 1(a) hereof and to remain effective
for the lessor of (i) the period during which all
Registerable Securities registered in the Demand
Registration are sold and (ii) one hundred twenty (120)
days; provided, however, that if the Grantee requests the
Company to withdraw such registration other than as the
result of a material breach by the Company of this
Agreement, it shall constitute a completed Demand
Registration unless the Grantee promptly pays all of the
costs and expenses incurred by the Company in connection
with such registration.
(c) Underwriting Procedures.
(i) The offering of Registerable Securities pursuant
to a Demand Registration may be in the form of a firm
commitment underwritten offering and, if so, the
managing underwriter and other underwriters selected
for such offering shall be selected by the Company;
provided that the managing underwriter and other
underwriters are reasonably acceptable to the Grantee
(having due regard to the experience and relationship
with the Company and the Grantee, if any, of the
managing underwriter and the other underwriters) (the
"APPROVED UNDERWRITER"). In such event, if the
Approved Underwriter advises the Company that in its
opinion the aggregate amount of such Registerable
Securities requested to be included in such offering
is sufficiently large that it may adversely affect
the success of such offering, the Company shall
include in such registration only the aggregate
amount of Registerable Securities that in the opinion
of the Approved Underwriter may be sold without any
such adverse effect and shall allocate (A) first, pro
rata, based on the number of Registerable Securities
Beneficially Owned by Grantees and (B) second, pro
rata, based on the number of shares of Common Stock
Beneficially Owned by Persons who are contractually
entitled to include (other than pursuant to this
Agreement) their shares of Common Stock in such
registration statement.
(ii) Distribution by Underwriters. The managing
underwriter or underwriters selected for any offering
shall enter into an agreement with the Company and
the stockholders whereby the underwriters shall be
prohibited from (A) distributing 5% or greater of the
Registerable Securities to any Person in connection
with the initial placement of the Registerable
Securities for the offering and from (B) distributing
5% or greater of the Registerable Securities to any
Person for ninety (90) days after such initial
placement.
2. Incidental or "Piggyback" Registration Rights.
(a) Notice of Registration. If the Company, at any time
beginning on the date that is the twelve (12) month
anniversary of the date of this Agreement and thereafter
from time to time, until the thirty six (36) month
anniversary of this Agreement, 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 the restrictions contained in other
registration rights agreements of the Company and Section
2(b) hereof) all the Registerable Securities specified in a
written request delivered by the Grantee to the Company
within ten (10) days after such Grantee's receipt of such
written notice from the Company ("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
Registerable Securities and, thereupon, (A) in the case of a
determination not to register, shall be relieved of its
obligation to register any Registerable Securities in
connection with such registration (but not from its
obligations under Section 4 hereof), without prejudice,
however, to the rights of any holder of Registerable
Securities entitled to do so to request that such
registration be effected as a registration under Section
1(a) hereof and (B) in the case of a determination to delay
registering, shall be permitted to delay registering any
Registerable Securities, for the same period as the delay in
registering such other securities. The right of the Grantee
to have Registerable Securities included in a registration
pursuant to this Section 2(a) shall be conditioned upon such
Grantee 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 (the
"COMPANY UNDERWRITER").
(b) Cutback. If the lead managing underwriter of an offering
covered by Section 2(a) hereof shall advise the Company on
or before the date five (5) days prior to the date then
scheduled for such offering that, in its opinion, the amount
of Common Stock (including Registerable Securities)
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 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
Grantee and any other holder of common shares
entitled to incidental or piggyback registration on
the date of this 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; and
fourth, 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 SECOND
PRIORITY REGISTRATION").
! (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;
fourth, the shares of Common Stock which have been
requested to be registered by the Grantee and any
other holder 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; and
fifth, the shares of Common Stock which have been
requested to be registered by any other holder
entitled to Other Second 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
Registerable Securities requested to be included in such
registration, the Grantee may, upon written notice to the
Company given within three (3) days of the date the Grantee
is first notified of such matter, reduce the amount of the
Registerable Securities the Grantee desires to have included
in such registration, whereupon only the Registerable
Securities, if any, the Grantee desires to have included
will be considered for such inclusion.
3. Obligations of the Company.
(a) Whenever the Company is required to use its reasonable
commercial efforts to effect or cause the registration of
any shares of Common Stock under the Securities Act pursuant
to this Agreement, the Company shall (i) as soon as
reasonably practicable, file with the Commission a
registration statement with respect to the shares of Common
Stock; 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, (ii) prepare and file with the Commission such
amendments and supplements to such registration statement
and the prospectus forming a part thereof 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 in accordance with the terms of this
Agreement 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, dated
the date of its delivery to the Grantee 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 Commission another registration statement within
ninety (90) 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 (90) 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
Grantee 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 (90) consecutive
calendar days. The Company shall be entitled to exercise
such suspension rights one (1) 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 Commission, a copy of any
registration statement, and each amendment thereof and each
amendment or supplement, if any, to the prospectus forming a
part thereof and shall use its reasonable commercial efforts
to reflect in each such document, when so filed with the
Commission, 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 a 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 a 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 promptly, as practicable, 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 Commission and when
the registration statement or any post-effective
amendment thereto has become effective; and
(ii) of any request by the Commission for amendments
or supplements to the registration statement or the
prospectus included therein or for additional
information.
(B) The Company shall promptly, as practicable, advise
the Grantee and, if requested by the Grantee, confirm
such advice in writing of:
(i) the issuance by the Commission 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 Registerable Securities until the
requisite changes have been made).
(4) The Company shall use its reasonable commercial 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 Registerable
Securities at the earliest possible time.
(5) The Company shall furnish to the Grantee with respect to
the registration statement relating to the Registerable
Securities, 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 Registerable Securities, 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 Registerable Securities 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 3(b) hereof or
Section 3(c)(3)(B)(iii) hereof) to the use of the prospectus
or any amendment or supplement thereto by the Grantee in
connection with the offering and sale of the Registerable
Securities covered by the prospectus or any amendment or
supplement thereto.
(7) Prior to any offering of Registerable Securities
pursuant to any registration statement, the Company shall
use its reasonable commercial efforts to register or qualify
the shares of Registerable Securities 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 Registerable
Securities so registered or ninety (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 Registerable
Securities 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 by-laws, which
in each case the Board of Directors 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
Registerable Securities 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 Registerable Securities 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 Registerable Securities to release any stop
transfer orders with respect to the shares of Registerable
Securities.
(9) Upon the occurrence of any event contemplated by Section
3(c)(3)(B)(iii) hereof, 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 Registerable Securities 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 Section 3(b) hereof
or Section 3(c)(3)(B)(iii) hereof, the Grantee shall suspend
the use of the prospectus, for a period not to exceed ninety
(90) consecutive calendar days in accordance with Section
3(b) hereof, 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 Registerable Securities 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 5
hereof (or such other provisions and procedures acceptable
to the managing underwriters, if any) with respect to all
parties to be indemnified pursuant to Section 5 hereof.
(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 reasonable
commercial 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 commercial efforts
to cause the Registerable Securities 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 Registerable Securities 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 Commission allowing the Grantee to sell
Registerable Securities without registration.
4. Expenses.
The Company shall pay all fees and expenses incurred in
connection with the performance of its obligations under Section 1
hereof and Section 2 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).
5. 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, each
underwriter (if any) of shares of Registerable Securities
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 Registerable
Securities, 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
5(a) shall not apply to such losses, claims, damages,
liabilities or actions which shall arise from the sale of
shares of Registerable Securities 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 expressly 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 5(a) hereof to indemnify and hold harmless
the Company, its directors, officers, employees,
representatives and agents, each underwriter (if any) of
shares of Registerable Securities 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 expressly 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) hereof or Section 5(b) hereof 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 5(a) hereof or
Section 5(b) hereof, 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 5(a) hereof or Section 5(b) hereof 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 5 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 5 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 5(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 Registerable Securities, 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 5.
(f)The obligations of the Company and the Grantee under this
Section 5 shall survive (1) during the pending of any
investigation with respect to a Claim and (2) the completion
of any offering of Registerable Securities in a registration
statement.
6. 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 (i) the date of receipt (or if delivery refused,
the date of such refusal) if delivered personally or by recognized
overnight courier, (ii) three (3) days after the date of posting if
sent by registered or certified mail, postage prepaid and (iii) if
transmitted by facsimile, the date that confirmation of
transmission is received by the sending party.
(A) if to the Company, to it at:
CoreComm Limited
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
(B) if to the Grantee, to it at:
Xxxxxx Xxxxxxx Senior Funding Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx, Vice President
Facsimile: (000) 000-0000
All such notices and communications shall be effective when
received by the addressee.
7. 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.
8. 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.
9. 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
Registerable Shares.
10. 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 13 hereof.
11. 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.
12. 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 Registerable Securities 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 Registerable Securities without
registration under the Securities Act or any successor provision
thereto during any single three-month period under Rule 144 of the
Securities Act.
13. Assignment. The Grantee's right to have the Company register
Registerable Securities pursuant to this Agreement shall be
automatically assigned 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 the Warrant or the
underlying Registerable Securities if: (a) the Grantee is permitted
at such time under the terms of the Warrant to sell, transfer,
assign, pledge, hypothecate, encumber, convey in trust, gift or
otherwise dispose of all or any portion of the Warrant or the
underlying Registerable Securities proposed to be transferred or
assigned, (b) the Grantee agrees in writing with the transferee or
assignee to assign such rights, and a complete, executed copy of
such agreement is furnished promptly to the Company after such
assignment, (c) the Company is, prior to such transfer or
assignment, furnished with written notice of (i) the name and
address of such transferee or assignee and (ii) the number and type
of Company securities with respect to which such registration
rights are being assigned, (d) 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, (e) at or
before the time the Company receives the written notice
contemplated by subsection (c) 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 5
hereof and this Section 13), (f) such transfer or assignment shall
have complied with all applicable terms and conditions of the
Warrant, (g) such transfer or assignment shall have complied with
all applicable Federal and State securities laws and (h) 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 rights
under this Section 13, the term "Grantee" as used in this Agreement
will be deemed to include such permitted transferees or assignees.
14. 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, 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.
"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.
15. 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 5 hereof and permitted transferees and assignees under
Section 13 hereof.
16. Conflicting Instructions. If the Company receives conflicting
instructions, notices or elections from two (2) or more Persons
with respect to the same Registerable Securities, the Company may
act upon the basis of the instruction, notice or election received
from the registered owner of such Registerable Securities without
liability to any other holder, equitable, beneficial or otherwise,
of such Registerable Securities.
17. Joinder. A Person may become joined to this Agreement in
accordance with and compliance with the provisions of Section 13
hereof.
18. Representations and Warranties
(a) The Warrant has been duly authorized and executed by the
Company and when delivered to and paid for by the Grantee in
accordance with the terms of the Warrant (i) is a valid and
binding obligation of the Company enforceable in accordance
with its terms, except as (A) the enforceability thereof may
be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws now or hereinafter in effect
relating to creditors' rights generally and (B) rights of
acceleration, if applicable, and the availability of
equitable remedies may be limited by equitable principles of
general applicability (whether considered in a proceeding at
law or in equity) and (ii) will entitle the Grantee to the
benefits set forth in the Warrant.
(b) The Registerable Securities have been duly authorized
and reserved for issuance upon the exercise of the Warrant
and, when issued and delivered upon exercise of the Warrant
in consideration of the payment of the exercise price to the
Company in respect of such exercise in accordance with the
terms of the Warrant, will be validly issued, fully paid and
non-assessable and will not upon initial issuance be subject
to any preemptive or similar rights or taxes, liens, charges
and security interests, except that the Company does not
make any representation as to taxes, liens, charges and
security interests evolving out of any activities of the
Grantee.
(c) This Agreement has been duly authorized and, when
executed and delivered by the Company and each other party
thereto, will be valid and binding upon the Company,
enforceable in accordance with its terms except (i) as the
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws now
or hereinafter in effect relating to creditors' rights
generally, (ii) the availability of equitable remedies may
be limited by equitable principles of general applicability
(whether considered in a proceeding at law or in equity),
and (iii) rights to indemnification and contribution may be
limited by applicable laws or the public policies underlying
such laws.
(d) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this
Agreement and the Warrant, the issuance, sale and delivery
of the Warrant in the manner contemplated by the Warrant and
this Agreement and the initial issuance of the Registerable
Securities upon exercise of the Warrant in the manner
contemplated by the Warrant will not contravene any
applicable provision of the Delaware General Corporation Law
or the certificate of incorporation or by-laws of the
Company or any material agreement or other material
instrument binding upon the Company or any of its
"significant subsidiaries" (as such term is defined in Rule
1-02(w) of the Exchange Act) or any judgment, order or
decree of any governmental body, agency or court having
jurisdiction over the Company or any of its significant
subsidiaries, except for any contravention as would not have
a material adverse effect on the business, operations,
results of operations, assets, properties and condition
(financial or otherwise) of the Company and its significant
subsidiaries, taken as a whole; and no consent, approval,
authorization or order of, or qualification with, any
governmental body or agency is required for the performance
by the Company of its obligations under the Warrant or this
Agreement, except (i) such as may be required by federal and
state securities laws in connection with the offer and sale
of the Warrant and the Registerable Securities upon exercise
of the Warrant, (ii) such as may be required under federal
and state securities laws in connection with the performance
by the Company of its obligations under the Warrant or this
Agreement or (iii) such as may be required to list or quote
the Registerable Securities in accordance with Section
3(c)(13) hereof.
(e) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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
effective as of the date first set forth above.
CORECOMM LIMITED
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
XXXXXX XXXXXXX SENIOR FUNDING INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
