EXHIBIT 4.13
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of July 23, 1998 between
RCN Corporation, a Delaware corporation (the "Company"), and each of the
persons listed on the signature pages hereof (collectively, the
"Stockholders").(1)
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(1) To be executed by all JavaNet shareholders other than Xxxxx Xxxxxxx and
Xxxxxxx Xxxxxx, whose shares of Common Stock will be subject to a lock-up.
WHEREAS this Agreement is being entered into pursuant to Section
10.03(e) of the Agreement and Plan of Merger dated as of June 30, 1998 (the
"Merger Agreement") among JavaNet, Inc., a Delaware corporation, Xxxxx
Xxxxxxx, Xxxxxxx Xxxxxx, the Company and JNET Holding, Inc., a Delaware
corporation and a wholly owned subsidiary of the Company.
WHEREAS, it is intended by the Company and the Stockholders that
this Agreement shall become effective immediately upon the issuance of the
Common Stock of the Company to be issued pursuant to Article 1 of the Merger
Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
Definitions
Section 1.1. Definitions. Terms defined in the Merger
Agreement are used herein as therein defined. In addition, the following
terms, as used herein, have the following meanings:
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the Company's common stock, par value
$1.00 per share.
"Person" means an individual, corporation, limited liability
company, partnership, association, trust or other entity or organization,
including a government or political subdivision or an agency or
instrumentality thereof.
"Piggyback Registration" means a Piggyback Registration as
defined in Section 2.2.
"Registrable Securities" means the shares of Common Stock
issued to the Stockholders pursuant to the Merger.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in Section 2.1.
"Underwriter" means a securities dealer who purchases any
Registrable Securities as principal and not as part of such dealer's
market-making activities.
ARTICLE 2
Registration Rights
Section 2.1. Shelf Registration. (a) The Company shall, no later
than 60 days after the Effective Time, prepare and file with the Commission a
shelf registration statement under the Securities Act (as amended and
supplemented from time to time, the "Shelf Registration Statement") relating
to the resale by the Stockholders of the Registrable Securities in accordance
with Rule 415(a)(1)(i) under the Securities Act and will use its reasonable
best efforts to cause such Shelf Registration Statement to be declared
effective as expeditiously as possible and to keep such Shelf Registration
Statement continuously effective and in compliance with the Securities Act and
usable for resale of such Registrable Securities, for a period from the date
on which the Commission declares such Shelf Registration Statement effective
until the earlier of (i) 45 days after the effective time of the Shelf
Registration Statement and (ii) the date upon which all Registrable Securities
have been sold pursuant to such Registration Statement. The Company shall be
entitled to delay the filing and/or the effective time of the Shelf
Registration Statement for a period of up to 60 days if the Company shall
determine in good faith that the offering is reasonably likely to interfere
with a pending or contemplated financing, merger, sale or acquisition of
assets, recapitalization or other corporate action or policies of the Company.
(b) If the Stockholders so elect by written consent of the holders
of a majority of the Registrable Securities, the offering of Registrable
Securities pursuant to the Shelf Registration Statement may be in the form of
an underwritten offering. The Stockholders shall have the right to select the
managing Underwriters and any additional investment bankers and managers to
be used in connection with such offering, subject to the Company's approval,
which approval shall not be unreasonably withheld.
(c) The Company may, in its sole discretion, include in such Shelf
Registration Statement other shares of Common Stock held by security holders,
if any, who have piggyback registration rights with respect to such shares) or
otherwise combine the offering of the Registrable Securities with any
secondary offering of other securities of the Company.
Section 2.2. Piggyback Registration. Until the first anniversary
of the Effective Time, if the Company proposes to file a registration statement
under the Securities Act with respect to an offering of Common Stock either
for the Company's own account or for the account of others who are not
Stockholders (other than a registration statement on Form S-4 or S-8 or
pursuant to Rule 415 or any substitute form or rule, respectively, that may be
adopted by the Commission), the Company shall give written notice of such
proposed filing to each Stockholder as soon as reasonably practicable (but in
no event less than 10 days before the anticipated filing date), and such notice
shall offer each Stockholder the opportunity to register such number of shares
of Registrable Securities held by such Stockholder on the same terms and
conditions as the other Common Stock being registered thereunder (a
"Piggyback Registration"). Each Stockholder will have five business days
after receipt of any such notice to notify the Company as to whether it wishes
to participate in a Piggyback Registration; provided that should any
Stockholder fail to provide timely notice to the Company, such Stockholder
will forfeit any rights to participate in the Piggyback Registration. If the
Company shall determine in its sole discretion not to file or request the
effectiveness of such registration statement, or to delay such filing or
effectiveness, the Company may, at its election, provide written notice of such
determination to the Stockholders who have provided timely notice of their
intention to participate in the Piggyback Registration and (i) in the case of a
determination not to file or request effectiveness, shall thereupon be relieved
of the obligation to register such Stockholders' Registrable Securities in
connection therewith, and (ii) in the case of a determination to delay a
filing or effectiveness, shall thereupon be permitted to delay registering such
Stockholders' Registrable Securities for the same period as the delay in such
filing or effectiveness. The Stockholders shall not be entitled to select the
Underwriters in connection with any Piggyback Registration.
Section 2.3. Reduction of Offering. Notwithstanding anything
contained herein, if the managing Underwriter of an underwritten offering
described in Section 2.2 states in writing that the size of the offering that
the Stockholders, the Company and any other Persons intend to make is such that
the success of the offering would be materially and adversely affected, then
the amount of Registrable Securities to be registered for the account of the
Stockholders shall be reduced to the extent necessary to reduce the total
amount of securities to be included in such Piggyback Registration offering to
the amount recommended by such managing Underwriter and, as between the
Stockholders, the number will be reduced pro rata based on the number of
Registrable Securities each Stockholder requests to have registered; provided
that if securities are being registered for the account of Persons other than
the Company who are not exercising demand - type registration rights, then the
proportion by which the amount of Registrable Securities intended to be
registered for the account of the Stockholders is reduced shall not exceed the
proportion by which the amount of securities intended to be registered for the
account of such other Persons is reduced.
ARTICLE 3
Registration Procedures
Section 3.1. Filings; Information. In connection with any
registration statement described in Article 2 of this Agreement (a
"Registration Statement") hereof, the Company and the Stockholders agree as
follows:
(a) At least five business days before filing a Shelf
Registration Statement or related prospectus or any amendments or
supplements thereto, the Company shall furnish to each holder of
Registrable Shares covered by such Shelf Registration Statement, and
their counsel and underwriters or sales agents, if any, copies of all
such documents proposed to be filed (including exhibits), and the
Company will not file any such document with the Commission if (i) in
the case of the Shelf Registration Statement, the holders of a
majority of the Registrable Shares included in such Registration
Statement shall reasonably object to such filing within three business
days of their receipt of such a document, or (ii) a Stockholder shall
reasonably object to information in such a document concerning such
Stockholder within three business days of his or her receipt of such
document.
(b) The Company shall be entitled, by notifying the
Stockholders to postpone or suspend for a reasonable period of time
(not to exceed 90 days minus the number of days used by the Company
pursuant to the last sentence of Section 2.01(a)) the offering of any
Registrable Securities if the Company shall determine in good faith
that such offering is reasonably likely to interfere with a pending or
contemplated financing, merger, sale or acquisition of assets,
recapitalization or other corporate action or policies of the Company.
If the Company elects to so postpone or suspend the offering of any
Registrable Securities, the Company shall, to the extent necessary,
amend or supplement the Shelf Registration Statement to permit the
offering of Registrable Securities within 90 days (minus the number of
days used by the Company pursuant to the last sentence of Section
2.01(a)) of receiving the aforementioned notice from the Stockholders
and the 45 day period referred to in subclause (i) of Section 2.1(a)
shall be extended by the number of days the offering is postponed or
suspended under this Section 3.01(b).
(c) In connection with the Shelf Registration Statement or a
Piggyback Registration Statement for an offering that is not
underwritten the Company will furnish to the Stockholders and each
applicable managing Underwriter, if any, such number of copies of the
Registration Statement or amendment and supplement thereto (in each
case including all exhibits thereto and documents incorporated by
reference therein), and the prospectus included in such registration
statement (including each preliminary prospectus) as the Stockholders
or each such Underwriter may reasonably request in order to facilitate
the sale of the Registrable Securities.
(d) In connection with the Shelf Registration Statement or a
Piggyback Registration Statement for an offering that is not
underwritten, after the filing of the Registration Statement, the
Company will promptly notify the Stockholders of any stop order issued
or, to the Company's knowledge, threatened to be issued by the
Commission and take reasonable actions required to prevent the entry
of such stop order or to remove it if entered.
(e) The Company will use reasonable efforts to qualify
the related Registrable Securities for offer and sale under such
securities or blue sky laws of such jurisdictions in the United States
as the Stockholders reasonably request; provided that the Company will
not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but
for this paragraph 3.1(e), (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any
such jurisdiction.
(f) In connection with the Shelf Registration Statement
or a Piggyback Registration Statement for an offering that is not
underwritten, the Company will as promptly as is practicable notify
the Stockholders, at any time when a prospectus relating to the sale
of the Registrable Securities is required by law to be delivered in
connection with sales by an Underwriter or dealer, of the occurrence
of any event requiring the preparation of a supplement or amendment to
such prospectus so that, as thereafter delivered to the purchasers of
such Registrable Securities, such prospectus will not contain an
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading and promptly make available to the Stockholders and to
the Underwriters any such supplement or amendment. Upon receipt of
any notice from the Company of the occurrence of any event of the kind
described in the preceding sentence, the Stockholders will forthwith
discontinue the offer and sale of Registrable Securities pursuant to
the Registration Statement covering such Registrable Securities until
receipt by the Stockholders and the Underwriters of the copies of such
supplemented or amended prospectus and, if so directed by the Company,
the Stockholders will deliver to the Company all copies, other than
permanent file copies then in the Stockholders' possession, of the
most recent prospectus covering such Registrable Securities at the
time of receipt of such notice. If the offers and sales discontinued
pursuant to this paragraph 3.1(f) are covered by the Shelf
Registration Statement, the 45 day period referred to in subclause (i)
of Section 2.01 shall be extended by the number of days during which
such offers and sales are so discontinued.
(g) In connection with the Shelf Registration Statement
or a Piggyback Registration Statement for an offering that is not
underwritten, upon the request of the Stockholders or the managing
Underwriter or agent, as the case may be, or if required by the rules,
regulations or instructions applicable to the registration form used
by the Company, or by the Securities Act or by any other rules and
regulations thereunder in connection with the offering of Registrable
Securities, the Company will prepare a prospectus supplement that
complies with the Securities Act and the rules and regulations of the
Commission thereunder and that sets forth the aggregate amount of the
Registrable Securities being sold, the name or names of any
Underwriters or agents participating in the offering, the price at
which the Registrable Securities are to be sold, any discounts,
commissions or other items constituting compensation, and such other
information as the Stockholders or the managing Underwriter or agent,
as the case may be, and the Company deem appropriate in connection
with the offering of the Registrable Securities prior to its being
used or filed with the Commission.
(h) In connection with the Shelf Registration Statement,
the Company will, if requested by the holders of a majority of the
Registerable Securities, enter into customary agreements (including an
underwriting agreement in customary form) and take such other
customary actions as are required in order to expedite or facilitate
the sale of Registrable Securities pursuant to the Registration
Statement.
(i) In any underwritten offering, at the request of the
selling Stockholders, the Company will furnish (i) an opinion of
counsel, addressed to the Underwriters, covering such customary
matters as the managing Underwriter may reasonably request and (ii) a
comfort letter or comfort letters from the Company's independent
public accountants covering such customary matters as the managing
Underwriter may reasonably request.
(j) The Company will make generally available to its
security holders, as soon as reasonably practicable, an earnings
statement covering a period of 12 months, beginning within three
months after the effective date of the registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of
the Securities Act and the rules and regulations of the Commission
thereunder.
(k) In connection with any Registration Statement, the
Company will cooperate with the selling Stockholders and the
underwriters and selling agents, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold, which certificates shall not bear any
restrictive legends and shall be in such lots and registered in such
names as the Selling Stockholders, or selling agents (or, in an
underwritten offering, the underwriters) may request at least two
business days prior to the closing of any sale.
(l) The Company will use its reasonable efforts to
maintain the listing of all Registrable Securities on each securities
exchange or inter-dealer quotation system on which the Common Stock is
listed.
The Company may require the Stockholders promptly to furnish in
writing to the Company such information regarding the Stockholders, the plan
of distribution of the Registrable Securities and other information as the
Company may from time to time reasonably request or as may be required by
Items 507 and 508 of Regulation S-K or Regulation S-B or other applicable laws
in connection with any Registration Statement.
Section 3.2. Registration Expenses. In connection with the
Shelf Registration Statement and any Piggyback Registration, the Company shall,
except as set forth below, pay all expenses incurred by it (except as set forth
below) in connection with such registration; including, without limitation: (i)
registration and filing fees with the Commission, (ii) fees and expenses of
compliance with securities or blue sky laws (including reasonable fees and
disbursements of counsel in connection with blue sky qualifications of the
Registrable Securities), (iii) printing expenses, (iv) NASD fees and expenses,
(v) fees and expenses of the Company, including fees and expenses of counsel
and independent certified public accountants for the Company (except, in
connection with the Shelf Registration Statement, for any fees and expenses of
(A) counsel for the Company with respect to any legal opinion issued in
connection with such registration and (B) independent certified public
accountants for the Company with respect to any comfort letters issued in
connection with such registration), (vi) the reasonable fees and expenses of
any additional experts retained by the Company in connection with such
registration, (vii) fees and expenses of transfer agents and registrars, and
(viii) in connection with an underwritten offering in which the Company sells
shares, road show expenses of its employees. The Stockholders shall pay any
underwriting fees, discounts or commissions attributable to the sale of
Registrable Securities and any out-of-pocket expenses of the Stockholders.
ARTICLE 4
Indemnification and Contribution
Section 4.1. Indemnification by the Company. The Company
agrees to indemnify and hold harmless each Stockholder from and against any
and all losses, claims, damages and liabilities (including reasonable
attorneys' fees) to which he or she may become subject insofar as such
losses, claims, damages and liabilities arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained
in any Registration Statement or prospectus relating to the Registrable
Securities (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) or any preliminary prospectus, or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, except insofar as such losses, claims, damages or
liabilities are caused by or contained in or based upon any information
furnished in writing to the Company by or on behalf of a Stockholder or any
Underwriter expressly for use therein, or by a Stockholder's or
Underwriter's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto after the Company has
furnished the Stockholder or Underwriter with a sufficient number of copies
of the same. The Company also agrees to indemnify any Underwriters of the
Registrable Securities, their officers and directors and each person who
controls such Underwriters on substantially the same basis as that of the
indemnification of the Stockholders provided in this section 4.1.
Section 4.2. Indemnification by Stockholder. Each Stockholder
agrees to indemnify and hold harmless the Company, its officers and directors,
and each Person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to the Stockholders, but
only with reference to information furnished in writing by or on behalf of the
Stockholders expressly for use in any Registration Statement or prospectus
relating to the Registrable Securities, or any amendment or supplement
thereto, or any preliminary prospectus, or the failure to deliver a copy of
such registration statement or prospectus or any amendments or supplements
thereto. Each Stockholder also agrees to indemnify and hold harmless any
Underwriters of the Registrable Securities, their officers and directors and
each person who controls such Underwriters on substantially the same basis as
that of the indemnification of the Company provided in this section 4.2.
Section 4.3. Conduct of Indemnification Proceedings. In case
any proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant to
Section 4.1 or Section 4.2, such Person (the "Indemnified Party") shall
promptly notify the Person against whom such indemnity may be sought (the
"Indemnifying Party") in writing and the Indemnifying Party, upon the request
of the Indemnified Party, shall retain counsel reasonably satisfactory to such
Indemnified Party to represent such Indemnified Party and any others the
Indemnifying Party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any Indemnified Party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the Indemnified Party and the Indemnifying Party and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
Indemnifying Party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) at
any time for all such Indemnified Parties, and that all such fees and expenses
shall be reimbursed as they are incurred. In the case of any such separate
firm for the Indemnified Parties, such firm shall be designated in writing by
the Indemnified Parties. The Indemnifying Party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent, or if there be a final judgment for the plaintiff,
the Indemnifying Party shall indemnify and hold harmless such Indemnified
Parties from and against any loss or liability (to the extent stated above) by
reason of such settlement or judgment.
Section 4.4. Contribution. If the indemnification provided
for in this Article 4 is unavailable to an Indemnified Party in respect of any
losses, claims, damages or liabilities in respect of which indemnity is to be
provided hereunder, then each such Indemnifying Party, in lieu of indemnifying
such Indemnified Party, shall to the fullest extent permitted by law
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative fault of the Company and the Stockholders
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company, the Stockholders and the
Underwriters 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
such party and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Stockholders agree that it would not be
just and equitable if contribution pursuant to this Section 4.4 were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an Indemnified
Party as a result of the losses, claims, damages or liabilities referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred
by such Indemnified Party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Article 4, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission, and
no Stockholder shall be required to contribute any amount in excess of the
amount by which the net proceeds of the offering (before deducting expenses)
received by such Stockholder exceeds the amount of any damages which such
Stockholder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. 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 who was not
guilty of such fraudulent misrepresentation.
ARTICLE 5
Miscellaneous
Section 5.1. Participation in Underwritten Registrations. No
Person may participate in any underwritten registered offering contemplated
hereunder unless such Person (a) agrees to sell its Registrable Securities on
the basis provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements, (b) completes and executes all
questionnaires, powers of attorney, custody arrangements, indemnities,
underwriting agreements and other documents reasonably required under the
terms of such underwriting arrangements and this Agreement and (c) furnishes
in writing to the Company such information regarding such Person, the plan of
distribution of the Registrable Securities and other information as the Company
may from time to time request or as may be legally required in connection with
such registration.
Section 5.2. Rule 144. The Company covenants that it will (i)
maintain the registration of the Common Stock under Section 12 of the Exchange
Act, (ii) file on time any reports required to be filed by it under the
Securities Act and the Exchange Act and (iii) take such further action as the
Stockholders may reasonably request to the extent required from time to time
to enable the Stockholders to sell Registrable Securities without registration
under the Securities Act pursuant to Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission. Upon the request of the Stockholders,
the Company will deliver to the Stockholders a written statement as to whether
it has complied with the current public information requirements of Rule
144(c)(1).
Section 5.3. Notices. All notices, requests and other
communications to either party hereunder shall be in writing (including
telecopy or similar writing) and shall be given,
if to the Company, to
RCN Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: General Counsel
Telecopy: (000) 000-0000
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
if to one or more of the Stockholders, to such
Stockholder or Stockholders care of the
following representative:
Xx. Xxxx Xxxxxxx
00 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx, Xxxxxxx & Xxxxxxx
0 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx, Esq.
Telecopy: (000) 000-0000
or such other address or telecopier number as such party may hereafter specify
for the purpose by notice to the other party hereto; provided that at all times
the Stockholders will have one representative for all of the Stockholders. All
such notices, requests and communications shall be deemed to have been duly
given and received at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when receipt is acknowledged, if sent by facsimile transmission; and on the
next business day, if timely delivered to an air courier guaranteeing overnight
delivery.
Section 5.4. Amendments; No Waivers. (a) Any provision of this
Agreement may be amended or waived if, and only if, such amendment or waiver
is in writing and signed by the Company and by the Stockholders holding at
least 66 2/3% of the Registrable Securities then held by all Stockholders.
(b) No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights
and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
Section 5.5. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, legal representatives, successors and assigns;
provided that no party may assign, delegate or otherwise transfer any of its
rights or obligations under this Agreement (except transfers occurring by
virtue of the death or disability of a Stockholder) without the written consent
of the other parties hereto. Neither this Agreement nor any provision hereof
is intended to confer upon any Person other than the parties hereto any rights
or remedies hereunder.
Section 5.6. Counterparts; Effectiveness. This Agreement may
be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto
shall have received a counterpart hereof signed by the other parties hereto.
Section 5.7. Entire Agreement. This Agreement constitutes the
entire agreement between the parties hereto with respect to the subject matter
hereof and supersede all prior agreements, understandings and negotiations,
both written and oral, between the parties hereto with respect thereto.
Section 5.8. Governing Law. This Agreement shall be construed
in accordance with and governed by the laws of the State of New York, without
regard to the conflicts of law rules of such state, and by applicable United
States federal law.
Section 5.9. Jurisdiction. Except as otherwise expressly
provided in this Agreement, the parties hereto agree that any suit, action or
proceeding seeking to enforce any provision of, or based on any matter arising
out of or in connection with, this Agreement or the transactions contemplated
hereby shall be brought in the United States District Court for the Southern
District of New York or any other New York State court sitting in the Borough
of Manhattan, New York, and each of the parties hereby consents to the
jurisdiction of such courts (and of the appropriate appellate courts therefrom)
in any such suit, action or proceeding and irrevocably waives, to the fullest
extent permitted by law, any objection which it may now or hereafter have to
the laying of the venue of any such suit, action or proceeding in any such
court or that any such suit, action or proceeding which is brought in any such
court has been brought in an inconvenient forum. Process in any such suit,
action or proceeding may be served on any party anywhere in the world, whether
within or without the jurisdiction of any such court. Without limiting the
foregoing, each party agrees that service of process on such party as provided
in Section 5.04 shall be deemed effective service of process on such party.
Section 5.10. WAIVER OF JURY TRIAL. EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section 5.11. Headings. The headings contained in this
Agreement are for reference purposes only and shall not in any way affect the
meaning of interpretation of this Agreement.
Section 5.12. Termination. The registration rights granted
under this Agreement will terminate on the first anniversary of the Effective
Time.
Section 5.13. Decisions by Stockholders. Except as provided in
Section 5.4 , if any decision is to be made hereunder by the Stockholders as a
group, the decision of Stockholders holding a majority of the Registrable
Securities then held by all Stockholders shall be binding on all Stockholders.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, or caused this Agreement to be duly executed by their respective
authorized officers, as of the day and year first above written.
RCN CORPORATION
By:
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Name:
Title:
STOCKHOLDERS
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