Exhibit 4.10
EXECUTION VERSION
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT" is entered into
as of this 15th day of December, 2000, between CoreComm Limited, a Delaware
corporation (the "COMPANY"), and Chase Securities Inc. (the "GRANTEE").
WHEREAS, capitalized terms used but not defined herein shall have the
meanings ascribed thereto in Section 13 of this Agreement;
WHEREAS, as of 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
402,500 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 $3.39 per share (collectively, the "GRANTEE COMMON
STOCK REGISTRABLE SHARES");
WHEREAS, the Company entered into a Registration Rights Agreement
(the "ATX AGREEMENT"), dated as of September 29, 2000 with the former
stockholders of ATX Telecommunications Services, Inc., a Delaware
corporation, for the benefit of the holders of the Registrable Securities
(as defined in the ATX Agreement);
WHEREAS, the Company entered into a Registration Rights Agreement
(the "VOYAGER AGREEMENT"), dated as of September 29, 2000 with the former
stockholders of Xxxxxxx.xxx, Inc., a Delaware corporation, listed on
Schedule I to the Voyager Agreement for the benefit of the holders of the
Registrable Securities (as defined in the Voyager Agreement); and
WHEREAS, the Company entered into a Registration Rights Agreement
(the "BOOTH AGREEMENT"), as of September 28, 2000 with Booth American
Company, a Michigan corporation for the benefit of the holder of the
Subject Stock (as defined in the Booth Agreement).
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein and of other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
to this Agreement intending to be legally bound hereby agree as follows:
1. Incidental or "Piggyback" Registration Rights.
(a) Notice of Registration. If the Company, at any time
beginning on the date that is the twelve-month anniversary of the
date of this Agreement and thereafter from time to time, until the
thirty six-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 Section 1(b) of this Agreement) all the
Grantee Common Stock Registrable Shares specified in a written
request delivered by the Grantee to the Company within ten days after
such Grantee's receipt of such written notice from the Company
("INCIDENTAL REGISTRATION"). The right of the Grantee to have Grantee
Common Stock Registrable Shares included in a registration pursuant
to this Section 1(a) shall be conditioned upon such Grantee entering
into (together with the Company and/or the other holders, if any,
distributing their securities through such underwriting) an
underwriting agreement in customary form with the managing
underwriter or underwriters selected for such underwriting by the
Company or by the stockholders who have demanded such registration
(the "COMPANY UNDERWRITER").
(b) Cutback. If the lead managing underwriter of an offering
covered by Section 1(a) of this Agreement shall advise the Company in
writing on or before the date five days prior to the date then
scheduled for such offering that, in its opinion, the amount of
Common Stock (including Grantee Common Stock Registrable Shares)
requested to be included in such registration exceeds the amount
which can be sold in such offering without adversely affecting the
distribution of the Common Stock being offered, then the Company will
include in such registration:
(i) in the case of a Company Registration, first, any
shares proposed to be offered by the Company; second, the
shares of Common Stock which have been requested to be
registered by the holders requesting such registration pursuant
to the ATX Agreement, the Voyager Agreement and/or the Booth
Agreement (the "EXISTING AGREEMENTS"), as applicable,
allocated, if necessary, pro rata among such holders requesting
such registration on the basis of the number of shares of
Common Stock Beneficially Owned by such holder at the time; and
third, the shares of Common Stock which have been requested to
be registered by the Grantee and any other holder of common
shares entitled to incidental or piggyback registration ("OTHER
REGISTRATION"), allocated, if necessary, pro rata among such
holders requesting such registration on the basis of the number
of shares of Common Stock Beneficially Owned by such holder at
the time; and
(ii) in the case of a Third Party Demand Registration,
first, any shares proposed to be offered by the stockholder or
stockholders exercising their right to cause the Company to
proceed with such Third Party Demand Registration (the
"INITIATING THIRD PARTY HOLDERS"); second, any shares proposed
to be offered by the Company; third, the shares of Common Stock
which have been requested to be registered by the holders
requesting such registration pursuant to the Existing
Agreements, excluding any shares Beneficially Owned by the
Initiating Third Party Holders, to be included in such
registration, allocated, if necessary, pro rata among such
holders requesting such registration on the basis of the number
of shares of Common Stock Beneficially Owned by such holder at
the time; and fourth, the shares of Common Stock which have
been requested to be registered by the Grantee and any other
holder entitled to Other Registration, allocated, if necessary,
pro rata among such holders requesting such registration on the
basis of the number of shares of Common Stock Beneficially
Owned by such holder at the time;
provided, however, that in the event the Company will not, by virtue
of the implementation of the foregoing cutback mechanism, include in
any such registration all of the Grantee Common Stock Registrable
Shares requested to be included in such registration, the Grantee
may, upon written notice to the Company given within three days of
the date the Grantee is first notified of such matter, reduce the
amount of the Grantee Common Stock Registrable Shares the Grantee
desires to have included in such registration, whereupon only the
Grantee Common Stock Registrable Shares, if any, the Grantee desires
to have included will be considered for such inclusion.
2. Obligations of the Company.
(a) If, and whenever, the Company is required under the
Existing Agreements to use its best efforts to effect or cause the
registration of any shares of Common Stock under the Securities Act,
the Company shall (i) prepare and, as soon as reasonably possible,
file with the SEC a registration statement with respect to the shares
of Common Stock, and shall use its best efforts to cause such
registration statement to become effective as promptly as possible;
provided, however, that the Company may discontinue any registration
of its securities which is being effected pursuant to an Incidental
Registration at any time prior to the effective date of the
registration statement relating thereto and, except as otherwise
provided in the Existing Agreements, to remain effective until the
earlier of the sale of the shares of Common Stock so registered or
such time as the holders may sell all of the shares of Common Stock
so registered pursuant to Rule 144 of the Securities Act within a
three-month period, (ii) prepare and file with the SEC such
amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be reasonably
necessary to make and to keep such registration statement effective
and to comply with the provisions of the Securities Act with respect
to the sale or other disposition of all securities proposed to be
registered pursuant to such registration statement until the earlier
of the sale of the shares of Common Stock so registered or such time
as the holders may sell all of the shares of Common Stock so
registered pursuant to Rule 144 of the Securities Act within a
three-month period and (iii) take all such other action either
necessary or desirable to facilitate the shares of Common Stock held
by the holders so registered to be disposed of in accordance with the
method of disposition described herein.
(b) Notwithstanding the foregoing, if the Company shall furnish
to the Grantee a certificate signed by its Chairman, Chief Executive
Officer or Chief Financial Officer stating that (i) filing a
registration statement or maintaining effectiveness of a current
registration statement would have a material adverse effect on the
Company or its stockholders in relation to any material financing,
acquisition or other corporate transaction, and the Company has
determined in good faith that such disclosure is not in the best
interests of the Company and its stockholders, or (ii) the Company
has determined in good faith that the filing or maintaining
effectiveness of a current registration statement would require
disclosure of material information the Company has a valid business
purpose of retaining as confidential, the Company shall be entitled
to postpone filing or suspend the use by the Grantee of the
registration statement for a reasonable period of time, but not in
excess of 60 consecutive calendar days. The Company shall be entitled
to exercise such suspension rights one time in any calendar year.
(c) In connection with any registration statement on which the
Grantee has validly requested inclusion, the following provisions
shall apply:
(1) The Company shall furnish to the Grantee, prior to the
filing thereof with the SEC, a copy of any registration statement,
and each amendment thereof and each amendment or supplement, if any,
to the prospectus included therein and shall use its reasonable
efforts to reflect in each such document, when so filed with the SEC,
such comments as the Grantee and its counsel reasonably may propose.
(2) The Company shall take such action as may be necessary so
that (i) any registration statement and any amendment thereto and any
prospectus forming part thereof and any amendment or supplement
thereto (and each report or other document incorporated therein by
reference) complies in all material respects with the Securities Act
and the Exchange Act, (ii) any registration statement and any
amendment thereto does not, when it becomes effective, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and (iii) any prospectus forming part of any
registration statement, and any amendment or supplement to such
prospectus, does not include an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading.
(3) (A) With respect to any registration statement, the Company
shall advise the Grantee and, if requested by the Grantee, confirm
such advice in writing:
(i) when a registration statement and any amendment
thereto has been filed with the SEC and when the registration
statement or any post-effective amendment thereto has become
effective; and
(ii) of any request by the SEC for amendments or
supplements to the registration statement or the prospectus
included therein or for additional information.
(B) The Company shall advise the Grantee and, if requested
by the Grantee, confirm such advice in writing of:
(i) the issuance by the SEC of any stop order suspending
effectiveness of such registration statement or the initiation
of any proceedings for that purpose;
(ii) the receipt by the Company of any notification with
respect to the suspension of the qualification of the
securities included therein for sale in any jurisdiction or the
initiation of any proceeding for such purpose; and
(iii) the happening of any event that requires the making
of any changes in such registration statement or the prospectus
so that, as of such date, the registration statement and the
prospectus do not contain an untrue statement of a material
fact and do not omit to state a material fact required to be
stated therein or necessary to make the statements therein (in
the case of the prospectus, in the light of the circumstances
under which they were made) not misleading (which advice shall
be accompanied by an instruction to suspend the use of the
prospectus relating to the Grantee Common Stock Registrable
Shares until the requisite changes have been made).
(4) The Company shall use its best efforts to prevent the
issuance, and if issued to obtain the withdrawal, of any order
suspending the effectiveness of the registration statement relating
to the Grantee Common Stock Registrable Shares at the earliest
possible time.
(5) The Company shall furnish to the Grantee with respect to
the registration statement relating to the Grantee Common Stock
Registrable Shares, without charge, such number of copies of such
registration statement and any post-effective amendment thereto,
including financial statements and schedules, and all reports, other
documents and exhibits (including those incorporated by reference) as
the Grantee shall reasonably request.
(6) The Company shall furnish to the Grantee such number of
copies of any prospectus (including any preliminary prospectus and
any amended or supplemented prospectus) relating to the Grantee
Common Stock Registrable Shares, in conformity with the requirements
of the Securities Act, as the Grantee may reasonably request in order
to effect the offering and sale of the shares of Grantee Common Stock
Registrable Shares to be offered and sold, but only while the Company
shall be required under the provisions hereof to cause the
registration statement to remain current, and the Company consents
(except during the continuance of any event described in Sections
2(b) or 2(c)(3)(B)(iii) to the use of the prospectus or any amendment
or supplement thereto by the Grantee in connection with the offering
and sale of the Grantee Common Stock Registrable Shares covered by
the prospectus or any amendment or supplement thereto.
(7) Prior to any offering of Grantee Common Stock Registrable
Shares pursuant to any registration statement, the Company shall use
its reasonable best efforts to register or qualify the shares of
Grantee Common Stock Registrable Shares covered by such registration
statement under the securities or blue sky laws of such states as the
Grantee shall reasonably request, maintain any such registration or
qualification current until the earlier of the sale of the shares of
Grantee Common Stock Registrable Shares so registered or 90 days
subsequent to the effective date of the registration statement, and
do any and all other acts and things either reasonably necessary or
advisable to enable the Grantee to consummate the public sale or
other disposition of the shares of Grantee Common Stock Registrable
Shares in jurisdictions where the Grantee desires to effect such
sales or other disposition; provided, however, that the Company shall
not be required to (A) take any action that would subject it to the
general jurisdiction of the courts of any jurisdiction in which it is
not then subject, (B) subject itself to taxation in any such
jurisdiction, (C) file a general consent to service of process in any
such jurisdiction, (D) provide any undertakings that could cause the
Company undue expense or burden, (E) make any change in its charter
or by-laws, which in each case the Board of Directors of the Company
determines to be contrary to the best interests of the Company and
its stockholders, or (F) qualify as a foreign corporation in any
jurisdiction where the Company is not then qualified.
(8) In connection with any offering of shares of Grantee Common
Stock Registrable Shares registered pursuant to this Agreement, the
Company shall (x) furnish the Grantee, at the Company's expense, on a
timely basis with certificates free of any restrictive legends
representing ownership of the shares of Grantee Common Stock
Registrable Shares being sold in such denominations and registered in
such names as the Grantee shall request, and (y) instruct the
transfer agent and registrar of the Grantee Common Stock Registrable
Shares to release any stop transfer orders with respect to the shares
of Grantee Common Stock Registrable Shares.
(9) Upon the occurrence of any event contemplated by paragraph
2(c)(3)(B)(iii) above, the Company shall promptly prepare a
post-effective amendment to any registration statement or an
amendment or supplement to the related prospectus or file any other
required document so that, as thereafter delivered to purchasers of
the Grantee Common Stock Registrable Shares included therein, the
prospectus will not include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. If the Company notifies the Grantee of the
occurrence of any event contemplated by Sections 2(b) or
2(c)(3)(B)(iii) above, the Grantee shall suspend the use of the
prospectus, for a period not to exceed sixty (60) calendar days in
accordance with Section 2(b), until the requisite changes to the
prospectus have been made.
(10) The Company shall, if requested, promptly include or
incorporate in a prospectus supplement or post-effective amendment to
a registration statement, such information as the managing
underwriters administering an underwritten offering of the Grantee
Common Stock Registrable Shares registered thereunder reasonably
request to be included therein and to which the Company does not
reasonably object and shall make all required filings of such
prospectus supplement or post-effective amendment as soon as
practicable after they are notified of the matters to be included or
incorporated in such prospectus supplement or post-effective
amendment.
(11) If requested, the Company shall enter into an underwriting
agreement with a nationally recognized investment banking firm or
firms reasonably acceptable to the Company containing
representations, warranties, indemnities and agreements then
customarily included by an issuer in underwriting agreements with
respect to secondary underwritten distributions, and in connection
therewith, if an underwriting agreement is entered into, cause the
same to contain indemnification provisions and procedures
substantially identical to those set forth in Section 4 of this
Agreement (or such other provisions and procedures acceptable to the
managing underwriters, if any) with respect to all parties to be
indemnified pursuant to Section 4 of this Agreement.
(12) In the event of an underwritten public offering, then the
Company shall (i) make reasonably available for inspection by Grantee
and its counsel, any underwriter participating in any distribution
pursuant to such registration statement, and any attorney, accountant
or other agent retained by the Grantee or any such underwriter, all
relevant financial and other records, pertinent corporate documents
and properties of the Company and its subsidiaries, (ii) cause the
Company's officers, directors and employees to make reasonably
available for inspection all relevant information reasonably
requested by Grantee or any such underwriter, attorney, accountant or
agent in connection with any such registration statement, in each
case, as is customary for similar due diligence examinations;
provided, however, that any such information shall be protected by a
mutually agreeable confidentiality agreement, (iii) obtain opinions
of counsel to the Company and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any) addressed to the
Grantee and the underwriters, if any, covering such matters as are
customarily covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested by the Grantee
and underwriters (it being agreed that the matters to be covered by
such opinion or written statement by such counsel delivered in
connection with such opinions shall include in customary form,
without limitation, as of the date of the opinion and as of the
effective date of the registration statement or most recent
post-effective amendment thereto, as the case may be, the absence
from such registration statement and the prospectus included therein,
as then amended or supplemented, including the documents incorporated
by reference therein, of an untrue statement of a material fact or
the omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (in the case of
the prospectus, in the light of the circumstances under which they
were made) not misleading, (iv) use its best efforts to obtain "cold
comfort" letters and updates thereof from the independent public
accountants of the Company (and, if necessary, any other independent
public accountants of any subsidiary of the Company or of any
business acquired or to be acquired by the Company for which
financial statements and financial data are, or are required to be,
included in the registration statement), addressed to the Grantee and
the underwriters, if any, in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection
with primary underwritten offerings, and (v) deliver such documents
and certificates as may be reasonably requested by the Grantee and
the managing underwriters, if any, and with any customary conditions
contained in the underwriting agreement or other agreement entered
into by the Company.
(13) The Company will use its reasonable best efforts to cause
the Grantee Common Stock Registrable Shares to be admitted for
quotation on the Nasdaq National Market or other stock exchange or
trading system on which the Common Stock primarily trades on or prior
to the effective date of any registration statement hereunder.
(14) With a view to making available the benefits of certain
rules and regulations of the Commission which may at any time permit
the sale of the Grantee Common Stock Registrable Shares to the public
without registration, the Company agrees to:
(A) Make and keep public information available, as those
terms are understood and defined in and interpreted under Rule
144 (or any successor provision) of the Securities Act, at all
times; and
(B) During the term of this Agreement, to furnish to the
Grantee upon request (i) a copy of the most recent annual or
quarterly report of the Company, and (ii) such other reports
and documents of the Company as the Grantee may reasonably
request in availing itself of any rule or regulation of the SEC
allowing the Grantee to sell Grantee Common Stock Registrable
Shares without registration.
3. Expenses.
The Company shall pay all fees and expenses incurred in
connection with the performance of its obligations under Section 1
hereof, including, without limitation, all Commission and blue sky
registration and filing fees, printing expenses, transfer agents' and
registrars' fees, and the reasonable fees and disbursements of the
Company's outside counsel and independent accountants incurred in
connection with the preparation, filing and amendment of any
registration statement authorized by this Agreement (but excluding
underwriters' and brokers' discounts and commissions and fees of the
Grantee and underwriter's counsel and related costs).
4. Indemnification and Contribution
(a) Indemnification by the Company. In the case of any offering
registered pursuant to this Agreement, the Company agrees to
indemnify and hold the Grantee, its directors, officers, employees,
representatives and agents, each underwriter (if any) of shares of
Grantee Common Stock Registrable Shares under such registration
statement and each person who controls any of the foregoing within
the meaning of Section 15 of the Securities Act harmless against any
and all losses, claims, damages, liabilities or amounts paid in
settlement as permitted by this Agreement to which they or any of
them may become subject under the Securities Act or any other statute
or common law or otherwise, and to reimburse them, from time to time
upon request, for any legal or other expenses incurred by them in
connection with investigating any claims and defending any actions,
insofar as any such losses, claims, damages, liabilities or actions
shall arise out of or shall be based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in the
registration statement (or any amendment thereto) relating to the
sale of such shares of Grantee Common Stock Registrable Shares,
including all documents incorporated therein by reference, or the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or (ii) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary
prospectus (as amended or supplemented if the Company shall have
filed with the Commission any amendment thereof or supplement
thereto), if used prior to the effective date of such registration
statement or contained in the prospectus (as amended or supplemented
if the Company shall have filed with the Commission any amendment
thereof or supplement thereto), if used within the period during
which the Company shall be required to keep the registration
statement to which such prospectus relates current pursuant to the
terms of this Agreement, or the omission or alleged omission to state
therein a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the indemnification
agreement contained in this Section 4(a) shall not apply to such
losses, claims, damages, liabilities or actions which shall arise
from the sale of shares of Grantee Common Stock Registrable Shares to
any person if such losses, claims, damages, liabilities or actions
shall arise out of or shall be based upon any such untrue statement
or alleged untrue statement, or any such omission or alleged
omission, if such statement or omission shall have been (x) made in
reliance upon and in conformity with information furnished in writing
to the Company by or on behalf of the Grantee or any such underwriter
specifically for use in connection with the preparation of the
registration statement or any such amendment thereof or any
preliminary prospectus or prospectus contained in such registration
statement or any such amendment thereof or supplement thereto, or (y)
made in any preliminary prospectus, and the prospectus contained in
the registration statement as declared effective or in the form filed
by the Company with the Commission pursuant to Rule 424 of the
Securities Act shall have corrected such statement or omission and a
copy of such prospectus shall have been sent or given to such person
at or prior to the confirmation of such sale to him.
(b) Indemnification by the Grantee. In the case of each offering
! registered pursuant to this Agreement, the Grantee agrees, in the
same manner and to the same extent as set forth in Section 4(a) of
this Agreement to indemnify and hold harmless the Company, its
directors, officers, employees, representatives and agents, each
underwriter (if any) of shares of Grantee Common Stock Registrable
Shares under such registration statement and each person who controls
any of the foregoing within the meaning of Section 15 of the
Securities Act with respect to any statement in or omission from such
registration statement or any preliminary prospectus (as amended or
as supplemented, if amended or supplemented as aforesaid) or
prospectus contained in such registration statement (as amended or as
supplemented, if amended or supplemented as aforesaid), if such
statement or omission shall have been made in reliance upon and in
conformity with information furnished in writing to the Company by or
on behalf of the Grantee specifically for use in connection with the
preparation of the registration statement or any such amendment
thereof or any preliminary prospectus or prospectus contained in such
registration statement or any such amendment thereof or supplement
thereto.
(c) Notice of Claims. Each party indemnified under Section 4(a)
or Section 4(b) of this Agreement shall, promptly after receipt of
notice of the commencement of any action, suit, claim, proceeding or
investigation (collectively, a "Claim") against such indemnified
party in respect of which indemnity may be sought, notify the
indemnifying party in writing of the commencement thereof, enclosing
a copy of all papers served on such indemnified party. The failure of
any indemnified party so to notify promptly an indemnifying party of
any such Claim shall not relieve the indemnifying party from any
liability in respect of such action which it may have to such
indemnified party on account of the indemnity agreement contained in
Section 4(a) or Section 4(b) of this Agreement, unless the
indemnifying party was prejudiced by such failure, and in no event
shall relieve the indemnifying party from any other liability which
it may have to such indemnified party. In case any such Claim shall
be brought against any indemnified party and it shall notify promptly
an indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided that if any
indemnified party or parties reasonably determine(s) after
consultation with, and based on the advice of, outside, qualified
legal counsel that there may be legal defenses available to such
indemnified party that are different from or in addition to those
available to such indemnifying party or that representation of such
indemnifying party and any indemnified party by the same counsel
would present a conflict of interest under applicable rules of
attorney professional conduct, then such indemnifying party shall not
be entitled to assume such defense. If an indemnifying party assumes
the defense of an action in accordance with and as permitted by the
provisions of this paragraph, such indemnifying party shall not be
liable to such indemnified party under Section 4(a) or Section 4(b)
of this Agreement for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. In no event
shall the indemnifying party be liable for the fees and expenses of
more than one counsel (in addition to local counsel) separate from
its own counsel for all indemnified parties in connection with any
one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity provided for in this Section 4
is for any reason held to be unavailable to the indemnified parties
although applicable in accordance with its terms, the Company and
Grantee shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said
indemnity incurred by the Company and the Grantee as incurred;
provided that no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person that was not guilty of such
fraudulent misrepresentation. As between the Company, on the one
hand, and the Grantee, on the other hand, such parties shall
contribute to such aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by such indemnity agreement in
such proportion as shall be appropriate to reflect the relative fault
of the Company, on the one hand, and the Grantee, on the other hand,
with respect to the statements or omissions which resulted in such
loss, liability, claim, damage or expense, or action in respect
thereof, as well as any other relevant equitable considerations. The
relative fault of the Company, on the one hand, and of the Grantee,
on the other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, on the one hand, or
by on behalf of the Grantee, on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the
Grantee agree that it would not be just and equitable if contribution
pursuant to this Section 4 were to be determined by pro rata
allocation or by any other method of allocation that does not take
into account the relevant equitable considerations. For purposes of
this Section 4(d), each person who controls the Company or the
Grantee within the meaning of Section 15 of the Securities Act shall
have the same rights to contribution as the Grantee or the Company,
as the case may be. No party shall be liable for contribution with
respect to any action, suit, proceeding or claim settled without its
written consent.
(e)The Company may require, as a condition to entering into any
underwriting agreement with respect to the registration of Grantee
Common Stock Registrable Shares, that the Company shall have received
an undertaking reasonably satisfactory to it from each underwriter
named in any such underwriting agreement, severally and not jointly,
to comply with the provisions of paragraphs (a) through (d) of this
Section 4.
(f)The obligations of the Company and the Grantee under this
Section 4 shall survive (1) during the pending of any investigation
with respect to a Claim and (2) the completion of any offering of
Grantee Common Stock Registrable Shares in a registration statement.
5. Notices. All consents, notices, documents, certificates,
information and legal process to be delivered to or served upon
any party to this Agreement shall be in writing and (a)
delivered personally, (b) sent by facsimile transmission, (c)
sent by registered or certified mail, postage prepaid, or (d)
sent by recognized overnight courier to the applicable party
hereto at the address stated below or in accordance with the
last unrevoked written direction from such party to the other
party(ies) hereto. Unless otherwise provided herein, all
notices shall be deemed to have been given on (1) the date of
receipt (or if delivery refused, the date of such refusal) if
delivered personally or by courier, (2) three days after the
date of posting if sent by registered or certified mail,
postage prepaid or (3) if transmitted by facsimile, the date
that confirmation of transmission is received by the sending
party.
(x) if to the Company, to it at:
CoreComm Limited
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
(y) if to the Grantee, to it at:
Chase Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
All such notices and communications shall be effective when received by the
addressee.
6. Governing Law. This Agreement shall be governed in all respects
by the internal laws of the State of Delaware as applied to
contracts entered into solely between residents of, and to be
performed entirely within, such state, and without reference to
principles of conflicts of laws or choice of laws.
7. Entire Agreement. This Agreement constitutes the full and
entire understanding and agreement between the parties with
regard to the subject matter hereof and supersedes all prior
agreements and understandings among the parties relating to the
subject matter hereof.
8. Amendments and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be
given, unless the Company has obtained the written consent of
the holders that Beneficially Own, in the aggregate, 50% or
more of the Common Stock Registrable Shares.
9. Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their
respective successors and assigns, subject to the assignment
provisions contained in Section 12 of this Agreement.
10. Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction
to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
11. Termination of Company Obligation. All registration rights and
obligations of the Company associated therewith provided in
this Agreement shall terminate upon the earlier of (A) the sale
of all the Grantee Common Stock Registrable Shares under an
effective registration statement and (B) the date of delivery
to the Grantee of a written opinion of counsel to the Company
(which may be the Company's in-house counsel), reasonably
acceptable to the Grantee, that Grantee is able to sell all of
its Grantee Common Stock Registrable Shares without
registration under the Securities Act or any successor
provision thereto during any single three-month period under
Rule 144 of the Securities Act.
12. Assignment. The Grantee's right to have the Company register
Grantee Common Stock Registrable Shares pursuant to this
Agreement shall be automatically assignable by the Grantee to
any transferee or assignee (other than the transferee or
assignee of such shares in a registered transaction) of all or
any portion of the Warrant or the underlying Grantee Common
Stock Registrable Shares if: (i) the Grantee is permitted at
such time under the terms of the Warrant Agreement 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 Grantee Common Stock Registrable
Shares proposed to be transferred or assigned, (ii) the Grantee
agrees in writing with the transferee or assignee to assign
such rights, and a copy of such agreement is furnished promptly
to the Company after such assignment, (iii) the Company is,
prior to such transfer or assignment, furnished with written
notice of (a) the name and address of such transferee or
assignee and (b) the number and type of Company securities with
respect to which such registration rights are being assigned,
(iv) following such transfer or assignment, the further
disposition of such securities of the Company by the transferee
or assignee is restricted under the Securities Act and
applicable State securities laws, (v) at or before the time the
Company receives the written notice contemplated by subsection
(iii) above, the transferee or assignee agrees in writing for
the benefit of the Company to be bound by all of the provisions
contained herein (including any subsequent Grantee becoming
bound to the provisions contained in Section 4 and this Section
12), (vi) such transfer or assignment shall have complied with
all applicable terms and conditions of the Warrant Agreement,
! (vii) such transfer or assignment shall have complied with all
applicable Federal and State securities laws and (viii) such
transferee or assignee shall be an "accredited investor" as
that term is defined in Rule 501(a) of Regulation D promulgated
under the Securities Act. Following any permitted assignment of
the rights under this Section 12, the term "Grantee" as used in
this Agreement will be deemed to include such transferees or
assignees.
13. Definitions. As used herein, the following terms shall have the
following respective meanings:
"BENEFICIAL OWNERSHIP" shall have the meaning set forth
in Rule 13d-3 under the Exchange Act.
"BOARD OF DIRECTORS" means the board of directors of the
Company.
"COMMISSION" means the Securities and Exchange Commission
or any other federal agency at the time administering the Securities Act.
"COMMON STOCK" means the common stock, par value $0.01
per share, of the Company or any other equity securities of the Company
into which such securities are converted, reclassified, reconstituted or
exchanged.
"EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended, or any successor federal statute, and the rules and regulations
of the Commission promulgated thereunder, all as the same shall be in
effect at the relevant time
"PERSON" means any individual, firm, corporation, limited
liability company, partnership, trust, incorporated or unincorporated
association, joint venture, joint stock company, government (or an agency
or political subdivision thereof) or other entity of any kind, and shall
include any successor (by merger or otherwise) of any such entity.
"SECURITIES ACT" means the Securities Act of 1933, or any
successor federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect at the relevant
time.
"UNDERWRITTEN OFFERING" shall mean a sale of securities
of the Company to an underwriter or underwriters for re-offering to the
public, which shall include a road show and other customary selling
efforts.
14. No Third Party Beneficiary Rights. This Agreement is made
solely and specifically between and for the benefit of the
Company and the Grantee, except with respect to covered
indemnitees under Section 4 and permitted transferees and
assignees under Section 12.
15. Joinder. A Person may become joined to this Agreement in
accordance with and compliance with the provisions of Section
12.
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SIGNATURE PAGE - REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly authorized and executed by their respective authorized officers as
of the date first set forth above.
CORECOMM LIMITED
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
CHASE SECURITIES INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
