EXHIBIT 10.22
AMENDMENT NO. 5
TO
REGISTRATION RIGHTS AGREEMENT
This Amendment No. 5 ("AMENDMENT") to the Registration Rights Agreement
dated as of July 8, 1998, as amended by Amendment No. 1 dated as of February 18,
1999, by Amendment No. 2 dated as of June 30, 1999, by Amendment No. 3 dated as
of June 30, 1999 and by Amendment No. 4 dated as of August 1, 2000 (the
"ORIGINAL AGREEMENT"), is made as of November 9, 2001, among Choice One
Communications Inc., a Delaware corporation (the "CORPORATION"), and the other
parties to the Original Agreement.
WHEREAS, the Corporation and the initial Investor Holders and
Management Holders entered into the Registration Rights Agreement on July 8,
1998 which provides for certain rights and obligations of the Corporation and
such Holders with respect to registration of the Common Stock under the
Securities Act (and such agreement has since been amended as described above);
WHEREAS, the Corporation desires to cause certain bridge loans made to
the Corporation under a Bridge Financing Agreement dated as of August 1, 2000
(the "BRIDGE AGREEMENT") among the Corporation and the lenders party thereto
(the "LENDERS") to roll over into rollover loans;
WHEREAS, it is a condition to the rollover of the bridge loans into
rollover loans that the Corporation enter into a registration rights agreement
with the Lenders in which it agrees to cause the notes that represent the
rollover loans (the "ROLLOVER NOTES") to be registered under the Securities Act
under certain circumstances;
WHEREAS, in connection with the rollover of the bridge loans, the
Corporation is obligated to issue to the Lenders certain warrants to purchase
Common Stock (the "WARRANTS") and the terms of the Warrants require that they
have customary demand and piggyback registration rights;
WHEREAS, the Holders desire to consent to the granting of the
registration rights to be granted by the Corporation with respect to the
Rollover Notes and the Warrants in accordance with Section 2.10 of the Original
Agreement; and
WHEREAS, the Corporation and the Holders desire to amend the Original
Agreement to coordinate piggyback rights of the Holders with the registration
rights granted to the holders of the Warrants;
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. Consent to Registration Rights. The Holders hereby consent
to the granting by the Corporation of (a) the registration rights with respect
to the Rollover Notes as set forth in the Debt Registration Rights Agreement
between the Corporation and the Lenders as such agreement is approved by the
Board of Directors of the Corporation, and (b) the registration rights with
respect to the Warrants as set forth in the Equity Registration Rights Agreement
among the Corporation and the Lenders as such agreement is approved by the Board
of Directors of the Corporation.
SECTION 2. Amendment to Definitions. (a) Section 1.01 of the
Original Agreement is hereby amended by inserting the following definition
before the definition of "Other Securities":
"PARI PASSU HOLDERS" means the Holders and any holder of Other
Securities who has been granted piggyback registration rights in compliance with
Section 2.10 that are pari passu with the piggyback registration rights of the
Holders.
"PARI PASSU SECURITIES" means the Registrable Securities and the Other
Securities held by Pari Passu Holders.
SECTION 2. Amendment to 2.02(b). Section 2.02(b) is deleted in its
entirety and replaced with the following:
(b) if the registration referred to in the first
sentence of this Section 2.02 is to be an underwritten registration on
behalf of the Corporation or any holder of Other Securities and a
nationally recognized investment banking firm selected by the
Corporation or such holder advises the Corporation or such holder in
writing that, in such firm's good faith view, the inclusion of all or a
part of such Registrable Securities in such registration would be
likely to have an adverse effect upon the price, timing or distribution
of the offering and sale of the Other Securities then contemplated,
then the Corporation shall include in such registration: (i) first, if
the registration is to satisfy a demand registration right of a holder
of Other Securities who is not a party to this Agreement, the Other
Securities requested to be included in such registration by the holder
demanding such registration ("DEMAND SECURITIES"), (ii) second, all
Other Securities the Corporation proposes to sell for its own account
("CORPORATION SECURITIES") in excess of the number of Demand Securities
to be sold in such offering which, in the good faith view of such
investment banking firm, can be so sold without so adversely affecting
such offering, (iii) third, up to the full number of Pari Passu
Securities held by Pari Passu Holders that are requested to be included
in such registration in excess of the aggregate number of Demand
Securities and Corporation Securities to be sold in such offering
which, in the good faith view of such investment banking firm, can be
so sold without so adversely affecting such offering (and (x) if such
number is less than the full number of such Pari Passu Securities, such
number shall be allocated pro rata among such Pari Passu Holders on the
basis of the relative number of Pari Passu Securities of the Class
being sold then held by each such Pari Passu Holder (provided that any
number in excess of a Pari Passu Holder's request may be reallocated
among the requesting Pari Passu Holders in a like manner) and (y) in
the event that such investment banking firm advises the Corporation in
writing pursuant to this subclause (b) that less than all of such Pari
Passu Securities should be included in such offering, Holders of
Registrable Securities constituting Pari Passu Securities requested to
be included may withdraw their request for registration of their
Registrable Securities under this Section 2.02 and request that 90 days
subsequent to the effective date of the registration statement for the
registration of such Other Securities such registration of Registrable
Securities be effected as a registration under Section 2.01 to the
extent permitted thereunder), provided further that so long as any
Other Holder (together with Registrable Securities then held by its
Other Distributee Holders) holds at least 75% of the Registrable
Securities held by such Other Holder as of Xxxxxx 0, 0000, XXXX (and,
only as to Registrable Securities acquired from MSCP, its Affiliates)
shall not be entitled to sell Registrable Securities (other than
Preferred Stock or warrants) pursuant to a registration under this
Section 2.02 unless such Other Holder (and/or, if applicable, its Other
Distributee Holders) are permitted to sell under such registration an
amount of Registrable Securities which, taken together with all other
dispositions by such Other Holder (and its Other Distributee Holders)
since August 1, 2000, equals or exceeds the lesser of 25% (as equitably
adjusted for stock splits, stock dividends and other similar events) of
the Registrable Securities held by such Other Holder on August 1, 2000
and the amount requested to be included (it being understood that
Registrable Securities held by an Other Distributee Holder that are
freely tradeable under Rule 144(k) will be deemed to have been disposed
of for purposes of determining whether the 25% disposition priority has
been satisfied), and (iv) fourth, up to the full number of the Other
Securities (other than Demand Securities, Corporation Securities and
Pari Passu Securities), if any, in excess of the number of Demand
Securities, Corporation Securities and Pari Passu Securities to be sold
in such offering which, in the good faith view of such investment
banking firm, can be so sold without so adversely affecting such
offering (and, if such number is less than the full number of such
Other Securities, such number shall be allocated pro rata among the
holders of such Other Securities (other than Demand Securities,
Corporation Securities and Pari Passu Securities) on the basis of the
number of securities requested to be included therein by each such
holder);
SECTION 3. Other Defined Terms. Capitalized terms used in this
Amendment and not otherwise defined have the meanings ascribed to them in the
Original Agreement.
SECTION 4. Effect of Amendment; Governing Law. Except as amended
hereby, the Original Agreement shall remain unchanged. The Original Agreement,
as amended hereby, shall remain in full force and effect. This Amendment shall
be governed by, and construed under, the laws of the State of Delaware, all
rights and remedies being governed by said laws, without regard to conflict of
laws principles.
SECTION 5. Counterparts. This Amendment may be executed simultaneously
in two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together shall constitute
one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
CHOICE ONE COMMUNICATIONS INC.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Chairman and Chief Executive Officer
MANAGEMENT MEMBERS
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, as a Management
Member and as Chief
Executive Officer of Choice
One Communications Inc.
/s/ Xxx Xxxxxx-Xxx
-----------------------------------------------
Xxx Xxxxxx-Xxx
/s/ Xxxxx Xxxxxxx
-----------------------------------------------
Xxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxx
-----------------------------------------------
Xxxxxx Xxxxxx
/s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx
INVESTOR MEMBERS
XXXXXX XXXXXXX CAPITAL PARTNERS III, L.P.
By MSCP III, LLC, its general partner
By Xxxxxx Xxxxxxx Capital Partners III, Inc., its
Member
By /s/ Xxxx X. Xxxxxxxxxx
-----------------------------------------------
Its Managing Director
MSCP III 892 INVESTORS, L.P.
By MSCP III, LLC, its general partner
By Xxxxxx Xxxxxxx Capital Partners III, Inc., its
Member
By /s/ Xxxx X. Xxxxxxxxxx
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Its Managing Director
XXXXXX XXXXXXX CAPITAL INVESTORS, L.P.
By MSCP III, LLC, its general partner
By Xxxxxx Xxxxxxx Capital Partners III, Inc., its
Member
By /s/ Xxxx X. Xxxxxxxxxx
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Its Managing Director
XXXXXX XXXXXXX XXXX XXXXXX CAPITAL PARTNERS IV, L.P.
By MSDW Capital Partners IV, LLC, its
general partner
By MSDW Capital Partners IV, Inc., its Member
By /s/ Xxxx X. Xxxxxxxxxx
-----------------------------------------------
Its Managing Director
MSDW IV 892 INVESTORS, L.P.
By MSDW Capital Partners IV, LLC, its general
partner
By MSDW Capital Partners IV, Inc., its Member
By /s/ Xxxx X. Xxxxxxxxxx
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Its Managing Director
XXXXXX XXXXXXX XXXX XXXXXX CAPITAL INVESTORS IV,
L.P.
By MSDW Capital Partners IV LLC, its
general partner
By MSDW Capital Partners IV, Inc., its Member
By /s/ Xxxx X. Xxxxxxxxxx
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Its Managing Director
XXXXXXXX PARTNERS III, L.P.
By Silverado III, L.P., its General Partner
By Silverado III Corp., its General Partner
By /s/ Xxxxxx X. Xxx Xxxxx
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Xxxxxx X. Xxx Xxxxx
Chairman & CEO
XXXXXXX PLAZA PARTNERS
By /s/ Xxxxxx X. Xxx Xxxxx
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Xxxxxx X. Xxx Xxxxx
Managing General Partner
FLEET VENTURE RESOURCES, INC.
By /s/ Xxxxxx X. Xxx Xxxxx
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Xxxxxx X. Xxx Xxxxx
Chairman & CEO
FLEET EQUITY PARTNERS VI, L.P.
By Fleet Growth Resources II, Inc., its
General Partner
By /s/ Xxxxxx X. Xxx Xxxxx
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Xxxxxx X. Xxx Xxxxx
Chairman & CEO
XXXXXX-XXXXXX MEDIA PARTNERS, L.P.
By Xxxxxx Xxxxxx Media, L.L.C. its general partner
By /s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
Chief Executive Officer
