EXHIBIT 4.12
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of June 12, 1998 among
RCN Corporation, a Delaware corporation (the "Company"), Xxxxxxx Xxx, Xxxxxxx
Xxxxx, Xxxx Xxxxxxx, Xxxx Xxxx and Xxxxxxx Xxxxxxx (collectively, the
"Interport Stockholders").
WHEREAS this Agreement is being entered into pursuant to the
Agreement and Plan of Merger dated as of June 1, 1998 among Interport
Communications Corp., a New York corporation, the Interport Stockholders, the
Company and INET Holding, Inc., a New York corporation and a wholly owned
subsidiary of the Company (the "Merger Agreement").
WHEREAS, it is intended by the Company and the Interport
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 Interport Stockholders pursuant to Section 1.02 of the Merger
Agreement and any other securities issuable in replacement thereof by way of a
dividend, distribution, recapitalization, exchange, merger, consolidation,
reorganization or other transaction; provided that (i) notwithstanding the
foregoing, no shares of Common Stock, if any, issued to the Interport
Stockholders as indemnification pursuant to Section 12.02 of the Merger
Agreement shall be Registrable Securities for purposes of this Agreement and
(ii) the shares of Common Stock issued to the Interport Management
Stockholders (the "Lockup Shares") shall not be transferable prior to the
first anniversary of the Effective Time, except as otherwise provided in
Section 7.03 of the Merger Agreement.
"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, within 60
days of the Effective Time, prepare and file with the Commission a shelf
registration statement (as amended and supplemented from time to time, the
"Shelf Registration Statement") relating to the Registrable Securities
(including, without limitation, Lockup Shares) in accordance with Rule 415
under the Securities Act and will use its reasonable best efforts to cause such
Shelf Registration Statement to be declared effective 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) the first anniversary of the
Effective Time and (ii) the date upon which all Registrable Securities
(including any Lockup Shares) have been sold pursuant to such Registration
Statement.
(b) If the Interport Stockholders so elect, the offering of
Registrable Securities pursuant to the Shelf Registration Statement may be in
the form of an underwritten offering. The Interport 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, but subject to Section
2.3(b), include other securities in such Shelf Registration Statement (whether
for the account of the Company or otherwise, including without limitation any
securities of the Company held by security holders, if any, who have piggyback
registration rights with respect thereto) or otherwise combine the offering of
the Registrable Securities with any offering of other securities of the
Company (whether for the account of the Company or otherwise).
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 for the
Company's own account (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 Interport 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 Interport Stockholder the opportunity
to register such number of shares of Registrable Securities held by such
Interport Stockholder on the same terms and conditions as the Company's Common
Stock (a "Piggyback Registration"). Each Interport 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 Interport Stockholder fail to provide timely notice to the Company,
such Interport Stockholder will forfeit any rights to participate in the
Piggyback Registration with respect to such proposed offering. If the Company
shall determine in its sole discretion not to register or to delay the
proposed offering, the Company may, at its election, provide written notice of
such determination to the Interport 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 effect the proposed offering, shall
thereupon be relieved of the obligation to register such Interport
Stockholders' Registrable Securities in connection therewith, and (ii) in the
case of a determination to delay a proposed offering, shall thereupon be
permitted to delay registering such Interport Stockholders' Registrable
Securities for the same period as the delay in respect of Common Stock being
registered for the Company's account. The Company shall be entitled to select
the Underwriters in connection with any Piggyback Registration.
Section 2.3. Reduction of Offering. (a) Notwithstanding anything
contained herein, if the managing Underwriter of an offering described in
Section 2.2 states in writing that the size of the offering that the Interport
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 offered for the account of the
Interport Stockholders shall be reduced to the extent necessary to reduce the
total amount of securities to be included in such offering to the amount
recommended by such managing Underwriter and, as between the Interport
Stockholders, the number will be reduced pro rata based on the number of
Registrable Securities each Interport Stockholder requests to have registered;
provided that in the case of a Piggyback Registration, if securities are being
offered for the account of Persons other than the Company, then the proportion
by which the amount of Registrable Securities intended to be offered for the
account of the Interport Stockholders is reduced shall not exceed the
proportion by which the amount of securities intended to be offered for the
account of such other Persons is reduced.
(b) Notwithstanding anything contained herein, if the managing
Underwriter of an offering described in Section 2.1 states in writing that the
size of the offering that the Interport 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 securities (other than
the Registrable Securities) to be offered for the account of the Company or any
other Person shall be reduced to the extent necessary to reduce the total
amount of securities to be included in such offering to the amount recommended
by such managing Underwriter.
ARTICLE 3
Registration Procedures
Section 3.1. Filings; Information. In connection with the
Shelf Registration Statement pursuant to Section 2.1 hereof, the Company and
the Interport Stockholders agree as follows:
(a) The Interport Stockholders will notify the Company at
least 10 days prior to making any offer or sale of any Registrable Securities
pursuant to the Shelf Registration Statement. The Company shall be entitled,
by notifying the Interport Stockholders within 5 days of receiving the
aforementioned notice from the Interport Stockholders, to postpone or suspend
for a reasonable period of time (not to exceed a total of 90 days during the
period of effectiveness of the Shelf Registration Statement) 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 of
receiving the aforementioned notice from the Interport Stockholders.
(b) The Company will, prior to filing the Shelf Registration
Statement or any amendment or supplement thereto, furnish to the Interport
Stockholders and each applicable managing Underwriter, if any, copies thereof,
and thereafter furnish to the Interport Stockholders and each such
Underwriter, if any, such number of copies of such registration statement,
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
Interport Stockholders or each such Underwriter may reasonably request in
order to facilitate the sale of the Registrable Securities.
(c) After the filing of the Shelf Registration Statement, the
Company will promptly notify the Interport 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.
(d) The Company will use reasonable efforts to qualify the
Registrable Securities for offer and sale under such other securities or blue
sky laws of such jurisdictions in the United States as the Interport
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(d), (ii)
subject itself to taxation in any such jurisdiction or (iii) consent to
general service of process in any such jurisdiction.
(e) The Company will as promptly as is practicable notify the
Interport 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
Interport 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 Interport
Stockholders will forthwith discontinue the offer and sale of Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until receipt by the Interport Stockholders and the Underwriters of
the copies of such supplemented or amended prospectus and, if so directed by
the Company, the Interport Stockholders will deliver to the Company all
copies, other than permanent file copies then in the Interport Stockholders'
possession, of the most recent prospectus covering such Registrable Securities
at the time of receipt of such notice.
(f) The Company will deliver to the Interport Stockholders
and each Underwriter or agent participating in an offering pursuant to the
Shelf Registration Statement as many copies of each preliminary prospectus as
the Interport Stockholders or such Underwriter or agent may reasonably
request, and the Company hereby consents to the use of such copies for
purposes permitted by the Securities Act. The Company will deliver to the
Interport Stockholders and each Underwriter or agent participating in such
offering from time to time during the period when a prospectus is required to
be delivered under the Securities Act, such number of copies of such
prospectus (as supplemented or amended) as the Interport Stockholders or such
Underwriter or agent may reasonably request.
(g) Upon the request of the Interport 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 pursuant
to the Shelf Registration Statement, 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 Interport
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) The Company will enter into customary agreements
(including an underwriting agreement in customary form) and take such other
actions as are required in order to expedite or facilitate the sale of such
Registrable Securities.
(i) At the request of any Underwriter, the Company will
furnish (i) an opinion of counsel, addressed to the Interport Stockholders and
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) The Company will use its reasonable efforts to cause all
such Registrable Securities to be listed on each securities exchange or quoted
on each inter-dealer quotation system on which the Common Stock is then listed
or quoted.
The Company may require the Interport Stockholders promptly to
furnish in writing to the Company such information regarding the Interport
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 legally required in connection with such registration.
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 the following expenses incurred in connection
with such registration: (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) fees and expenses incurred in connection with the listing or
quotation of the Registrable Securities, (v) fees and expenses of counsel and
independent certified public accountants for the Company (except for any fees
and expenses of outside counsel for the Company with respect to any legal
opinion issued in connection with the Shelf Registration at the request of the
managing Underwriter for the Interport Stockholders), and (vi) the reasonable
fees and expenses of any additional experts retained by the Company in
connection with such registration. The Interport Stockholders shall pay any
underwriting fees, discounts or commissions attributable to the sale of
Registrable Securities and any out-of-pocket expenses of the Interport
Stockholders.
ARTICLE 4
Indemnification and Contribution
Section 4.1. Indemnification by the Company. The Company
agrees to indemnify and hold harmless each Interport Stockholder from and
against any and all losses, claims, damages and liabilities (including
reasonable attorneys' fees) caused by 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 Interport Stockholder or any
Underwriter expressly for use therein or by a Interport Stockholder 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 Interport 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 Interport Stockholder provided in
this Section 4.1.
Section 4.2. Indemnification by Interport Stockholder. Each
Interport 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 Interport Stockholders, but only with reference to information
furnished in writing by or on behalf of the Interport 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. Each Interport 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 such party 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 Interport 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. No party shall
be liable for contribution under this Section 4.4 except to the extent and
under such circumstances as such party would have been liable to indemnify
under Section 4.1 and 4.2, as the case may be, if such indemnification were
enforceable under applicable law.
The Company and the Interport 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 Interport 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 Interport Stockholder exceeds the amount
of any damages which such Interport 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 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
file any reports required to be filed by it under the Securities Act and the
Exchange Act and that it will take such further action as the Interport
Stockholders may reasonably request to the extent required from time to time
to enable the Interport Stockholders to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by 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 Interport Stockholders, the Company will
deliver to the Interport Stockholders a written statement as to whether it has
complied with such reporting requirements.
Section 5.3. Holdback Agreements. Prior to the first
anniversary of the Effective Time, each Interport Stockholder agrees, in the
event of an underwritten offering for the Company (whether for the account of
the Company or otherwise) not to offer, sell, contract to sell or otherwise
dispose of any Registrable Securities, or any securities convertible into or
exchangeable or exercisable for such securities, including any sale pursuant to
Rule 144 under the Securities Act (except as part of such underwritten
offering), during the 14 days prior to, and during the 180-day period beginning
on, the effective date of the registration statement for such underwritten
offering.
Section 5.4. 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 Xxxxxxx Xxx, to:
Xxxxxxx Xxx
000 Xxxxx Xxxxxx
Xxxxx, Xxx Xxxx 00000
if to Xxxxxxx Xxxxx, to:
Xxxxxxx Xxxxx
00 Xxxx 00xx Xxxxxx, Xxx. 0X
Xxx Xxxx, Xxx Xxxx 00000
if to Xxxx Xxxxxxx, to:
Xxxx Xxxxxxx
00 Xxxxxxx Xxxxxx, Xxx. 0X
Xxx Xxxx, Xxx Xxxx 00000
if to Xxxx Xxxx, to:
Xxxx Xxxx
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
if to Xxxxxxx Xxxxxxx, to:
Xxxxxxx Xxxxxxx
x/x Xxx Xxxx Xxxx Xxxxx
Xxx Xxxx Xxxxx Theater
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
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. Each
such notice, request or other communication shall be effective when delivered
at the address specified in this Section 5.4.
Section 5.5. 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, in the case of an amendment, by each Interport
Stockholder and the Company, or in the case of a waiver, by the party against
whom the waiver is to be effective.
(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 5.6. 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 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 5.7. 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 5.8. 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 5.9. 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.
Section 5.10. 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 New York
City, 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
5.4 shall be deemed effective service of process on such party.
Section 5.11. 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 5.12. 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 5.13. Termination. The registration rights granted
under this Agreement will terminate on the first anniversary of the date
hereof.
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:
XXXXXXX XXX
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XXXXXXX XXXXX
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