Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of May 18, 2001 between Xxx@Home,
Inc., a Delaware corporation ("Cox@Home"), and AT&T Corp., a New York
corporation ("AT&T").
WHEREAS, the parties hereto have entered into a Share Issuance Agreement
dated as of May 18, 2001 (the "Share Issuance Agreement") which provides for,
among other things, the issuance by AT&T of 75,000,000 shares of AT&T common
stock, par value $1.00 per share (the "AT&T Shares") to Cox@Home; and
WHEREAS, in accordance with the Share Issuance Agreement, AT&T has agreed
to enter into this Agreement to provide certain registration rights to Cox@Home
with respect to the AT&T Shares;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
set forth herein and intending to be legally bound, the parties agree as
follows:
ARTICLE 1
Definitions
Section 1.01. Definitions. (a) As used herein, the following terms will
have the following meanings:
"Affiliate" means, with respect to any Person, any other Person
controlling, controlled by or under common control with such Person. For
purposes of the immediately preceding sentence, the term "control" (including,
with correlative meanings, the terms "controlling", "controlled by" and "under
common control with"), as used with respect to any Person, means possession or
ownership of (i) more than 50% of the economic interest in such person and (ii)
more than 50% of the voting power of the capital stock of such person eligible
to vote in the election of directors of such person.
"Common Stock " means the class of common stock, par value $1.00 per share,
of AT&T that is listed and traded on the New York Stock Exchange under the
symbol "T."
"Commission" means the Securities and Exchange Commission or any successor
governmental body or agency.
"Demand Registration" has the meaning ascribed thereto in Section
2.01(a)(ii).
"Disadvantageous Condition" has the meaning ascribed thereto in Section
2.01(a)(i).
"Holder" means (i) Cox@Home, for so long as it holds any Registrable
Securities, or (ii) any Permitted Transferee (x) which holds any Registrable
Securities and (y) which has executed a written instrument, agreeing to be bound
by the provisions of this Agreement as a Holder in accordance with Section
3.04(b).
"1933 Act" means the Securities Act of 1933, as amended.
"non-Holders" has the meaning ascribed thereto in Section 2.01(d).
"Other Securities" has the meaning ascribed thereto in Section 2.02.
"Permitted Transferee" means a transferee acquiring Registrable Securities
in a private transaction exempt from the registration requirements under the
1933 Act who shall have been designated as a Permitted Transferee by Cox@Home in
a written notice to AT&T and acquires Registrable Securities which at the time
of transfer have a fair market value of at least $500,000,000 (or is an
Affiliate of Cox and acquires all, but not less than all, of the Registrable
Securities held by Cox@Home), provided that the rights of any Permitted
Transferee shall be limited if and to the extent provided in such notice; and
provided further that Cox@Home shall not be entitled to designate more than 5
Permitted Transferees or to designate any Permitted Transferee if the
Registrable Securities would continue to be Registrable Securities for a period
longer than would be the case in the hands of Cox@Home.
"Person" means any individual, partnership, limited liability company,
joint venture, corporation, trust, unincorporated organization, government (and
any department or agency thereof) or other entity.
"Registrable Securities" means the AT&T Shares (and (i) any shares of stock
or other securities into which or for which such AT&T Shares may hereafter be
changed, converted or exchanged and (ii) any other shares or securities issued
to Holders in respect of such AT&T Shares (or such shares of stock or other
securities into which or for which such shares are so changed, converted or
exchanged) upon any reclassification, share combination, share subdivision,
share dividend, share exchange, merger, consolidation or similar transaction or
event, including, without limitation, any shares of stock or other securities of
any corporation other than AT&T that are distributed in respect of or in
exchange for such AT&T Shares or otherwise in connection with any Restructuring
Transaction (collectively, "Dividend Stock") and any Tracking Stock of AT&T;
provided that, the foregoing notwithstanding, shares of capital stock of AT&T
Wireless Services, Inc., or any subsidiary of AT&T that principally conducts the
business now conducted by AT&T Wireless Group, shall not be considered to be
Dividend Stock or Tracking Stock and are excluded from the definition of
Registrable Securities). As to any particular securities, such securities shall
cease to be Registrable Securities as soon as such securities (i) have been
effectively registered under the Securities Act, (ii) have been transferred in
compliance with Rule 144 under the 1933 Act (or any successor provision thereto)
under circumstances in which any legend relating to restrictions on transfer
under the 1933 Act is removed, (iii) are transferable pursuant to paragraph (k)
of Rule 144 (or any successor provision thereto), (iv) have otherwise been
transferred and a new security or securities not subject to transfer
restrictions under the 1933 Act has been delivered upon such transfer by or on
behalf of AT&T, (v) would be transferable by the relevant Holder under Rule 144
or any successor rule in 30 days or less given AT&T's trading volume at the time
and the aggregate amount of Registrable Securities of such class held by such
Holder, or (vi) such securities shall have ceased to be outstanding.
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"Registration Expenses" means all expenses incident to AT&T's
performance of or compliance with any registration of Registrable Securities
pursuant to this Agreement, including, without limitation, all registration,
filing and National Association of Securities Dealers, Inc. fees, all fees and
expenses of complying with securities or blue sky laws, all word processing,
duplicating and printing expenses, messenger and delivery expenses, the fees and
disbursements of counsel for AT&T and of its independent public accountants,
including the expenses of any special audits or "comfort" letters required by or
incident to such performance and compliance, premiums and other costs of
policies of insurance obtained by AT&T against liabilities arising out of the
public offering of Registrable Securities being registered and any fees and
disbursements of underwriters customarily paid by issuers, but excluding fees
and disbursements of counsel retained by any Holders, premiums and other costs
of policies of insurance obtained by any Holders or their agents or underwriter
against liabilities arising out of the public offering of the Registrable
Securities being registered, any fees and disbursements of underwriters
customarily paid by sellers of securities who are not the issuers of such
securities and all underwriting discounts and commissions and transfer taxes, if
any, relating to Registrable Securities.
"Restructuring Transaction" means the "spin-off", "split-off" or other
separation of, or the issuance of any Tracking Stock with respect to, any
subsidiary, division or group of AT&T.
"Restructuring Transaction Disadvantageous Condition" has the meaning
ascribed thereto in Section 2.01(a)(i).
"Rule 144" means Rule 144 promulgated under the 1933 Act, as such rule may
be amended from time to time (or any successor rule to similar effect).
"Rule 415 Offering" means any offering involving registration of securities
on a "shelf" registration statement or any other registration of securities for
offer or sale on a delayed or continuous basis, including pursuant to Rule 415
(or any successor rule to similar effect) promulgated under the 1933 Act.
"Selling Holder" means any Holder who sells Registrable Securities in
accordance with the terms of this Agreement pursuant to a public offering.
"Tracking Stock" means any class or series of capital stock of AT&T that is
intended to reflect the performance or value of any subsidiary, division or
group of AT&T.
"Wireless Exchange Offer" means AT&T's existing offer to exchange
outstanding shares of AT&T common stock for shares of AT&T Wireless Group
tracking stock, as provided for in Amendment No. 4 to the registration statement
on Form S-4 filed by AT&T on April 19, 2001.
(b) Capitalized terms used herein but not otherwise defined herein shall
have the same meaning as in the Share Issuance Agreement.
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ARTICLE 2
Registration Rights
Section 2.01. Demand Registration - Registrable Securities. (a) Upon notice
provided at any time after the date hereof by a written instrument executed by
any one or more Holders and requesting that AT&T effect the registration under
the 1933 Act of (subject to clause (iv) of the proviso to this Section 2.01(a))
any or all of the Registrable Securities held by such requesting Holders, which
notice shall specify the intended method or methods of disposition of such
Registrable Securities, AT&T shall prepare and file as soon as is reasonably
practicable (or, if applicable, as provided in Section 2.01(e)) with the
Commission a registration statement with respect to such Registrable Securities
and thereafter use its reasonable efforts to cause such registration statement
to be declared effective under the 1933 Act and such Registrable Securities to
be registered under applicable state securities laws as soon as is reasonably
practicable for disposition in accordance with the intended method or methods of
disposition stated in such request. Subject to Section 2.01(a)(i), AT&T shall
use reasonable efforts to keep each such registration statement continuously
effective in order to permit the prospectus forming a part thereof to be usable
by Holders for resales of Registrable Securities for an effectiveness period
ending on the earlier of (i) 30 days from the effective time of such
registration statement and (ii) such time as all of such securities have been
disposed of by the selling securityholders. Notwithstanding the foregoing:
(i) with respect to any registration statement filed, or to be filed,
pursuant to this Section 2.01, if AT&T shall advise the Holders of
Registrable Securities that have made such request that in AT&T's good
faith judgment it would be significantly disadvantageous to AT&T for such a
registration statement to be maintained effective or to be filed and become
effective (because in AT&T's reasonable good faith judgment (x) the sale of
Registrable Securities covered by such registration statement or the
disclosure of information therein or in any related prospectus or
prospectus supplement would materially interfere with any pending or
anticipated Restructuring Transaction, acquisition, financing or
transaction involving AT&T or its material subsidiaries or (y) the public
disclosure of material information which AT&T has a bona fide business
purpose for preserving as confidential at the time would be materially
prejudicial to AT&T) (any condition described in clauses (x) or (y), a
"Disadvantageous Condition", and any Disadvantageous Condition that could
affect or interfere with a Restructuring Transaction (including the timing
thereof), a "Restructuring Transaction Disadvantageous Condition"), AT&T
shall be entitled, except as provided below, to cause such registration
statement to be withdrawn and/or the effectiveness of such registration
statement terminated, or, in the event no registration statement has yet
been filed, shall be entitled not to file any such registration statement,
until such Disadvantageous Condition no longer exists (notice of which AT&T
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shall promptly deliver to such Holders); however, AT&T will during any such
postponement take all actions reasonably necessary or desirable in order to
be able to promptly file, or request effectiveness of a registration
statement, as the case may be, upon termination of any such postponement
period. AT&T shall cause the offering of the Registrable Securities so
specified in the request to be registered as soon as is reasonably
practicable after the Disadvantageous Condition ceases to exist. Upon
receipt of any such advice of a Disadvantageous Condition, such Holders
shall (A) keep confidential such advice and the fact of such
Disadvantageous Condition and any information provided by AT&T in
connection therewith, (B) forthwith discontinue use of the prospectus
contained in such registration statement for the duration of the delay
period permitted hereunder, and (C) if so directed by AT&T, deliver to AT&T
(at AT&T's expense) all copies then in the Holders' possession, other than
permanent file copies, of such prospectus. Notwithstanding anything else
contained herein, (x) neither the filing nor the effectiveness nor the
maintenance of effectiveness of such registration statement may be delayed
for a period in excess of 90 days due to the occurrence of any particular
Disadvantageous Condition (other than any Restructuring Transaction
Disadvantageous Condition) and (y) AT&T may exercise its delay rights under
this clause (i) for not more than a total of 180 days in any 24-month
period; provided, however, that any delay arising from a Restructuring
Transaction Disadvantageous Condition shall not count towards such 180-day
limitation;
(ii) the Holders may collectively exercise their rights to request a
registration under this Section 2.01(a) on not more than two occasions
(each such registration being referred to herein as a "Demand
Registration"), and AT&T will not be required to effect more than one
Demand Registration in any six-month period;
(iii) the method of disposition requested by Holders in connection
with any registration hereunder may not, without AT&T's written consent, be
a Rule 415 Offering;
(iv) a request for registration of Registrable Securities pursuant to
this Section 2.01 may not be made at any time unless the Registrable
Securities subject to such request have a fair market value of at least
$500,000,000, unless such registration is in respect of all remaining
Registrable Securities held by the Holder making such request.
(b) Notwithstanding any other provision of this Agreement to the
contrary,
(i) the Holders having requested any Demand Registration shall have
the right to withdraw such request (A) prior to the time the registration
statement in respect of such Demand Registration has been declared
effective, or after the time such registration statement has been declared
effective so long as the Holders are the only persons selling securities
under such registration statement (provided that, in either case, such
Demand Registration shall be deemed a request for purposes of paragraph (a)
above unless the Holders reimburse AT&T for all out-of-pocket costs
incurred in connection therewith or the withdrawal is as a direct result of
the delay occasioned by AT&T pursuant to Section 2.01(a)(i)) or (B) after a
stop order, injunction or other order has been issued by a governmental
agency or the Commission which interferes with the Demand Registration and
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(ii) a Demand Registration requested by Holders pursuant to this
Section 2.01 shall not be deemed to have been effected (and, therefore, not
requested (and the rights of a Holder shall be deemed not to have been
exercised) for purposes of paragraph (a) above), (A) if the registration
statement for such Demand Registration has not become effective under the
1933 Act, (B) if after such registration statement became effective under
the 1933 Act, it is interfered with by any stop order, injunction or other
order or requirement of the Commission or other governmental agency or
court for any reason other than a misrepresentation or an omission by any
Holder and, as a result thereof, in the reasonable good faith view of the
Holders or the underwriter or underwriters of any underwritten offering,
the Registrable Securities requested to be registered cannot be distributed
in accordance with the plan of distribution set forth in the related
registration statement or (C) if the registration statement relating to
such Demand Registration has been declared effective and AT&T has exercised
its right to cause such registration statement to be withdrawn or not to be
maintained effective pursuant to Section 2.01(a)(i), or (D) if the
conditions to closing specified in the purchase agreement or underwriting
agreement entered into in connection with any underwritten offering shall
not be satisfied or, with the consent of AT&T, the Holders or the lead
underwriter, as applicable, waived (other than due to any action or
inaction by a Holder).
(c) In the event that any registration pursuant to this Section 2.01 shall
involve, in whole or in part, an underwritten offering, one co-lead managing
underwriter shall be selected by AT&T and shall be reasonably acceptable to the
Holders participating therein, and the other co-lead underwriter shall be
selected by the Holders participating therein and shall be reasonably acceptable
to AT&T. Any additional co-managing underwriters shall be selected by AT&T.
(d) AT&T shall have the right to cause the registration of additional
shares of Common Stock for sale for the account of any Person that is not a
Holder (including, without limitation, (i) AT&T and/or any existing or former
directors, officers or employees of AT&T and/or (ii) any other Person holding
Common Stock and having the right to request such registration (collectively,
"non-Holders") in any registration of Registrable Securities requested by the
Holders pursuant to paragraph (a) above; provided that if, in connection with an
underwritten offering, AT&T and the Selling Holders are advised in writing (with
a copy to Holders) by the managing underwriter or underwriters (which shall have
been selected in accordance with Section 2.01(c)) that, in its or their
reasonable good faith view, the number of Registrable Securities requested by
non-Holders to be registered exceeds the number that can be sold in such
offering without adversely affecting such offering, then the number of
securities that can, in the reasonable good faith view of such managing
underwriter or underwriters, be sold in such offering without so adversely
affecting such offering shall be included in such registration in the following
priority: (i) first, all Registrable Securities the Holders propose to sell and
(ii) second, any other securities requested to be included in such registration
by non-Holders, which, in the reasonable good faith view of such managing
underwriter or underwriters, can be so sold without materially adversely
affecting such offering (allocated, if necessary, in AT&T's sole discretion),
subject to any registration rights agreement existing on the date hereof.
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(e) In the event the Holder makes its first request for Demand Registration
within two business days of the date hereof and such Demand Registration relates
to an underwritten offering not involving the sale of securities on a delayed or
continuous basis, AT&T shall prepare and use all reasonable efforts to file, by
or on the later of (i) the fourth business day after expiration of the Wireless
Exchange Offer and (ii) 21 business days from the date AT&T receives such
request for Demand Registration (or such earlier time as every Person
contractually entitled to notice of AT&T's intention to effect such Demand
Registration has responded to such notice and has waived AT&T's obligation to
provide advance notice of the filing of a registration statement), with the
Commission a registration statement with respect to such Registrable Securities
and thereafter use its reasonable efforts to cause such registration statement
to be declared effective under the 1933 Act and such Registrable Securities to
be registered under applicable state securities laws as soon as is reasonably
practicable for disposition in accordance with the intended method or methods of
disposition stated in such request. Other than as to the timing of filing, any
Demand Registration shall be subject to the other provisions and procedures of
this Section 2.01 and this Agreement to the same extent as such provisions and
procedures are applicable to registrations under Section 2.01(a) hereof.
Section 2.02. Piggyback Registration. Except as set forth in Section
2.02(c), in the event that, at any time after the date hereof, AT&T proposes to
register any of its Common Stock (collectively, "Other Securities") under the
1933 Act, whether or not for sale for its own account, in a manner that would
permit registration of Registrable Securities of the same class for sale for
cash to the public under the 1933 Act, it shall in the case of each such
proposed registration give prompt written notice of such proposed filing to
Cox@Home (as agent for any and all Holders at that time) (but in any event not
less than ten days before the anticipated filing date), so as to allow any or
all electing Holders to participate in such registration, of its intention to do
so and of the rights of such Holder under this Section 2.02. Such notice shall
specify, to the extent known by AT&T at the time of such notice, the estimated
number of shares of Other Securities so proposed to be registered, the proposed
date of filing such registration statement, any proposed means of distribution
of such shares, any proposed managing underwriter or underwriters of such shares
and an estimate by AT&T of the maximum offering price thereof. AT&T shall
further notify each Holder of any changes in the estimated number of shares of
Other Securities so proposed to be registered. Subject to the terms and
conditions hereof, such notice shall offer each such Holder the opportunity to
include in such registration statement such number of Registrable Securities as
such Holder may request; provided that the aggregate number of Registrable
Securities requested to be included by all Holders shall have a fair market
value of at least $100,000,000. Upon the written request of any such Holder made
within seven days after the receipt of AT&T's notice (which request shall
specify the number of Registrable Securities intended to be disposed of and the
intended method of disposition thereof (which requested method may not, without
AT&T's consent, be a Rule 415 Offering), the written request of any such Holder
being the "Piggy-back Request"), AT&T shall use its reasonable efforts to cause
the offering of the Registrable Securities so specified in the Piggy-back
Request to be registered as soon as is reasonably practicable, in connection
with the registration of the Other Securities, under the 1933 Act, to the extent
required to permit the disposition (in accordance with such intended methods
thereof) of the Registrable Securities so requested to be registered; provided,
that:
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(a) if, at any time after giving such written notice of its intention to
register any Other Securities and prior to the effective date of the
registration statement filed in connection with such registration, AT&T shall
determine for any reason not to register the Other Securities, AT&T may, at its
election, give written notice of such determination to such Holders and
thereupon AT&T shall be relieved of its obligation to register such Registrable
Securities in connection with the registration of such Other Securities, without
prejudice, however, to the rights of the Holders of Registrable Securities to
request that such registration be effected as a Demand Registration under
Section 2.01 to the extent permitted thereunder;
(b) if the registration referred to in the first sentence of this Section
2.02 is to be an underwritten registration and AT&T and the Selling Holders are
advised in writing by the managing underwriter or underwriters that, in its or
their reasonable good faith view, the number of Registrable Securities requested
by non-Holders to be registered exceeds the number that can be sold in such
offering without adversely affecting such offering, then the number of
securities that can, in the reasonable good faith view of such managing
underwriter or underwriters, be sold in such offering without so adversely
affecting such offering shall be included in such registration in the following
priority: (i) first, Other Securities AT&T proposes to sell for its own account
or, if the registration is in response to a demand registration right of a party
(other than a Holder) whose registration rights require such a priority, the
securities the party(ies) demanding such registration proposes to sell to the
extent of such a priority, (ii) second, the Registrable Securities requested to
be included in such registration, pro rata among the Selling Holders which have
requested their Registrable Securities to be included therein, and, if the
registration is in response to a demand registration right, AT&T, and (iii)
third, any Other Securities requested to be included in such registration.
(c) AT&T shall not be required to effect any registration of Registrable
Securities under this Section 2.02 if such registration (1) is incidental to the
registration of any of its securities in connection with any shelf registration
pursuant to Rule 415 of the 1933 Act or incidental to a registration only for
debt securities, (2) is to be effected on Form S-4 or Form S-8 (or successor
forms), (3) is in connection with any Restructuring Transaction or (4) in
connection with mergers or similar transactions, exchange offers, share
dividends, dividend reinvestment plans or stock option or other executive or
employee benefit or compensation plans;
(d) No registration of Registrable Securities effected under this Section
2.02 shall relieve AT&T of its obligation to effect the Demand Registrations
pursuant to (and subject to the terms and conditions of) Section 2.01, and each
Holder shall be entitled to have its Registrable Securities included in an
unlimited number of piggyback registrations under this Section 2.02.
Section 2.03. Expenses. Except as provided herein, AT&T shall pay all
Registration Expenses incurred in connection with any registration made or
requested to be made pursuant to this Article 2 whether or not any such
registration statement becomes effective. Notwithstanding the foregoing, each
Holder shall be responsible for all other expenses relating to any registration
or request for registration in which such Holder participates, including without
limitation the fees and expenses of counsel to such Holder, any applicable
underwriting discounts or commissions, and its own internal administrative and
similar costs, which shall not constitute Registration Expenses.
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Section 2.04. Registration and Qualification. If and whenever AT&T is
required to effect the registration of any Registrable Securities under the 1933
Act as provided in Sections 2.01 or 2.02, AT&T shall as promptly as practicable
(but subject to the provisions of Sections 2.01 and 2.02):
(a) provide to the one counsel for the Holders draft copies of any
registration statement or amendment prior to filing, provide the Holders
(through such one counsel) with reasonable opportunity to comment upon any
information contained in such documents relating to the Holders and comply with
any reasonable request made by the Holders (through such one counsel) to make
changes in the to any information contained in such documents relating to the
Holders;
(b) in respect of a registration statement under Section 2.01 (but not
2.02), prepare and file with the Commission such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective and to comply
with the provisions of the 1933 Act with respect to the disposition of all
Registrable Securities until the earlier of (A) such time as all of such
Registrable Securities have been disposed of in accordance with the intended
methods of disposition set forth in such registration statement and (B) the
expiration of 30 days after such registration statement becomes effective;
provided, that such 30-day period shall be extended for such number of days that
equals the number of days elapsing from (x) the date the written notice
contemplated by paragraph (f) below is given by AT&T to (y) the date on which
AT&T delivers to the Holders of Registrable Securities the supplement or
amendment contemplated by paragraph (f) below;
(c) furnish to the Holders of Registrable Securities, their counsel and any
underwriter of such Registrable Securities, without charge, at least one
conformed copy of such registration statement and of each such amendment and
supplement thereto (in each case including all exhibits), and such number of
copies of the prospectus included in such registration statement (including each
preliminary prospectus), in conformity with the requirements of the 1933 Act,
and such documents incorporated by reference in such registration statement or
prospectus, as the Holders of Registrable Securities or such underwriter may
reasonably request;
(d) use its reasonable best efforts to register or qualify all Registrable
Securities covered by such registration statement under the securities or blue
sky laws of such jurisdictions as the Holders of such Registrable Securities or
any underwriter of such Registrable Securities shall request, and use its
reasonable efforts to obtain and maintain as necessary all appropriate
registrations, permits and consents in connection therewith, and do any and all
other acts and things which may be necessary or advisable to enable the Holders
of Registrable Securities or any such underwriter to consummate the disposition
in such jurisdictions of its Registrable Securities covered by such registration
statement; provided, that AT&T shall not for any such purpose be required to
qualify generally to do business as a foreign corporation or as a dealer in
securities in any such jurisdiction wherein it is not so qualified or to consent
to general service of process or subject itself to tax in any such jurisdiction;
(e) in connection with any underwritten offering, use its reasonable
efforts to furnish an opinion of counsel for AT&T, addressed to the underwriters
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participating in such offering, and a "cold comfort" letter, addressed to any
Holders participating in such offering and the underwriters, signed by the
independent public accountants who have audited the financial statements of AT&T
included in the applicable registration statement, in each such case in
customary form and covering substantially such matters with respect to such
registration statement (and the prospectus included therein) and the related
offering as are customarily covered in opinions of AT&T's counsel with respect
thereto and in accountants' letters delivered to underwriters in underwritten
public offerings of AT&T securities;
(f) promptly notify the Selling Holders in writing (i) at any time when a
prospectus relating to a registration pursuant to Sections 2.01 or 2.02 is
required to be delivered under the 1933 Act of the happening of any event as a
result of which the prospectus included in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, (ii) of any request by the Commission or any other regulatory body
or other body having jurisdiction over any amendment of or supplement to any
registration statement or other document relating to such offering, and in the
case of either (i) or (ii), at the request of the Selling Holders (and subject
to Section 2.04(c)) prepare and furnish to the Selling Holders a reasonable
number of copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus shall not include 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, in light of the circumstances under which they
are made, not misleading, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of such registration statement or the
initiation of any proceedings for that purpose, (iv) if at any time the
representations and warranties of AT&T contemplated by Section 2.05 hereof cease
to be true and correct in all material respects and (v) of the receipt by AT&T
of any notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and provide the Selling Holders
with copies of any comments or other communications received from the Commission
or any other regulatory body or other body having jurisdiction over the
registration statement or other documents relating to such offering;
(g) in respect of a registration statement under Section 2.01 (but not
2.02), use its reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of such registration statement or any
post-effective amendment thereto as promptly as practicable;
(h) if reasonably requested by Holders, or the lead or managing
underwriters, use its reasonable efforts to list all such Registrable Securities
covered by such registration on each securities exchange and automated
inter-dealer quotation system on which the Common Stock is then listed, provided
that nothing herein shall require the Company to list any Registrable Securities
on any securities exchange on which they are not currently listed;
(i) furnish for delivery in connection with the closing of any offering of
Registrable Securities pursuant to a registration effected pursuant to Sections
2.01 or 2.02 unlegended certificates representing ownership of the Registrable
Securities being sold in such denominations as shall be requested by the Selling
Holders or the underwriters;
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(j) comply with all applicable rules and regulations of the Commission, and
make generally available to its securityholders as soon as practicable but in
any event not later than eighteen months after the effective date of such
registration statement, an earnings statement of AT&T and its subsidiaries
complying with Section 11(a) of the 1933 Act;
(k) provide a transfer agent and registrar for all Registrable Securities
covered by such registration statement not later than the effective date of such
registration statement; and
(l) in respect of a Registration Statement under Section 2.01 take such
other actions as are reasonably required on the part of an issuer of securities
in order to expedite or facilitate the disposition of Registrable Securities
included in such registration statement.
AT&T may require the Holders to furnish AT&T such information regarding the
Holders and the distribution of the Registrable Securities as AT&T may from time
to time reasonably request in writing for the purpose of registering the
Registrable Securities.
Section 2.05. Underwriting; Due Diligence. (a) If requested by the
underwriters for any underwritten offering of Registrable Securities pursuant to
a registration requested under this Article 2, AT&T shall enter into a customary
underwriting agreement with such underwriters for such offering, to contain such
representations and warranties by AT&T and such other terms, including such
indemnity terms customarily provided by AT&T, as are customarily contained in
underwriting agreements entered into by AT&T with respect to underwritten
offerings of AT&T securities of this type. The Selling Holders shall also enter
into such underwriting agreement, and such underwriting agreement shall also
contain such representations and warranties by such Selling Holders and such
other terms and provisions as are customarily contained in underwriting
agreements with respect to secondary distributions, including, without
limitation, indemnification and contribution provisions substantially to the
effect and to the extent provided in Section 2.06.
(b) In connection with the preparation and filing of each registration
statement registering Registrable Securities under the 1933 Act pursuant to this
Article 2 and during the effectiveness thereof, AT&T shall give the Holders of
such Registrable Securities and the underwriters, if any, and their respective
counsel and accountants (the identity and number of whom shall be reasonably
acceptable to AT&T), such reasonable and customary access to its books, records
and properties and such opportunities to discuss the business and affairs of
AT&T with its officers and the independent public accountants who have certified
the financial statements of AT&T as shall be necessary, in the opinion of such
Holders and such underwriters or their respective counsel, to conduct a
reasonable investigation within the meaning of the 1933 Act; provided that the
foregoing shall not require AT&T to provide access to (or copies of) any
competitively sensitive information relating to AT&T or its subsidiaries or
their respective businesses; provided further that (i) each Holder and the
underwriters shall have entered into a confidentiality agreement reasonably
acceptable to AT&T and the Holders and (i) the Holders and the underwriters and
their respective counsel and accountants shall use their reasonable efforts to
minimize the disruption to AT&T's business and coordinate any such investigation
of the books, records and properties of AT&T and any such discussions with
AT&T's officers and accountants so that all such investigations occur at the
same time and all such discussions occur at the same time.
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Section 2.06. Indemnification and Contribution. (a) AT&T agrees to
indemnify and hold harmless each Selling Holder and each person, if any, who
controls each Selling Holder within the meaning of either Section 15 of the 1933
Act or Section 20 of the 1934 Act from and against any and all losses, claims,
damages and liabilities, joint or several (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim, which shall be reimbursed to such
Selling Holder or such control person as incurred), insofar as such losses,
claims, damages or liabilities (or actions or proceedings whether commenced or
threatened in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in any
registration statement or any amendment thereof, any preliminary prospectus or
prospectus (as amended or supplemented if AT&T shall have furnished any
amendments or supplements thereto) relating to the Registrable Securities, or
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 any
such untrue statement or omission or alleged untrue statement or omission based
upon information furnished to AT&T in writing by a Selling Holder expressly for
use therein. AT&T also shall not be liable to the extent that any loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises
out of or is based upon (i) the use of any prospectus after such time as the
obligation of AT&T to keep the same effective and current has expired, or (ii)
the use of any prospectus after such time as AT&T has advised the Selling
Holder(s) in writing that a post-effective amendment or supplement thereto is
required, except such prospectus as so amended or supplemented; and, AT&T shall
not be liable to any Person who participates as an underwriter in the offering
or sale of Registrable Securities or any other Person, if any, who controls such
underwriter within the meaning of the Securities Act, to the extent that any
loss, claim, damage, liability (or action or proceeding in respect thereof) or
expense arises out of the matters described in the first proviso of this
sentence or in (i) or (ii) above or such Person's failure to send or give a copy
of the final prospectus or supplement to the Persons asserting an untrue
statement or alleged untrue statement or omission or alleged omission at or
prior to the written confirmation of the sale of Registrable Securities to such
Person if such statement or omission was timely corrected in such final
prospectus or supplement. AT&T also agrees to indemnify any underwriter of the
Registrable Securities so offered and each person, if any, who controls such
underwriter on the same basis as that of the indemnification by AT&T of the
Selling Holder provided in this Section 2.06(a).
(b) Each Selling Holder agrees, and each underwriter, selling agent or
securities professional, if any, of Registrable Securities shall agree, as a
consequence of facilitating the disposition of such Registrable Securities,
severally and not jointly, to indemnify and hold harmless AT&T, its directors,
the officers who sign a registration statement and each person, if any who
controls AT&T within the meaning of either Section 15 of the 1933 Act or Section
20 of the 1934 Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim, which shall be reimbursed to AT&T or such control person as
incurred) insofar as such losses, claims, damages or liabilities (or actions or
proceedings whether commenced or threatened in respect thereof) arise out of or
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are based upon any untrue statement or alleged untrue statement of a material
fact contained in any registration statement or any amendment thereof, any
preliminary prospectus or prospectus (as amended or supplemented if AT&T shall
have furnished any amendments or supplements thereto) relating to the
Registrable Securities, or 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, but in each case only with reference to information
furnished in writing by or on behalf of such Selling Holder expressly for use in
a registration statement, any preliminary prospectus, prospectus or any
amendments or supplements thereto. Each Selling Holder also agrees to indemnify
any underwriter of the Registrable Securities so offered and each person, if
any, who controls such underwriter on the same basis as that of the
indemnification by such Selling Holder of AT&T provided in this Section 2.06(b).
(c) Each party indemnified under paragraph (a) or (b) above shall, promptly
after receipt of notice of a claim or action against such indemnified party in
respect of which indemnity may be sought hereunder, notify the indemnifying
party in writing of the claim or action; provided, that the failure to notify
the indemnifying party shall not relieve it from any liability that it may have
to an indemnified party on account of the indemnity agreement contained in
paragraph (a) or (b) above except to the extent that the indemnifying party was
actually prejudiced by such failure. If any such claim or action shall be
brought against an indemnified party, and it shall have notified the
indemnifying party thereof, unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified party and indemnifying
parties may exist in respect of such claim, the indemnifying party shall be
entitled to participate therein, and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof.
After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section 2.06 for any
legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof. Any indemnifying party against whom
indemnity may be sought under this Section 2.06 shall not be liable to indemnify
an indemnified party if such indemnified party settles such claim or action
without the written consent of the indemnifying party. The indemnifying party
may not agree to any settlement of any such claim or action (other than solely
for monetary damages for which the indemnifying party shall be responsible
hereunder, the result of which shall be applied to or against the indemnified
party) without the prior written consent of the indemnified party, which consent
shall not be unreasonably withheld, or unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act, by
or on behalf of any indemnified party. In any action hereunder as to which the
indemnifying party has assumed the defense thereof, the indemnified party shall
continue to be entitled to participate in the defense thereof, with counsel of
its own choice, but the indemnifying party shall not be obligated hereunder to
reimburse the indemnified party for the costs of such counsel.
(d) If the indemnification provided for in this Section 2.06 shall for any
reason be unavailable (other than in accordance with its terms) to or
insufficient to hold harmless an indemnified party in respect of any loss,
liability, cost, claim or damage referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
liability, cost, claim or damage in such proportion as is appropriate to reflect
the relative fault of, and benefits derived by, such indemnifying party on the
one hand and such indemnified party on the other hand from the offering of the
Registrable Securities, as well as any other relevant equitable considerations.
The relative fault of such indemnifying party on the one hand and such
13
indemnified party 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 such indemnifying party or by such indemnified party and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The amount paid or payable by
an indemnified party as a result of the loss, cost, claim, damage or liability,
or action in respect thereof, referred to above in this paragraph shall be
deemed to include, for purposes of this paragraph, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. The parties agree that it would not be
just and equitable if contribution pursuant to this Section 2.06 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 which does not take account
of the equitable considerations referred to in this paragraph. Notwithstanding
any other provision of this Section 2.06, no Selling Holder shall be required to
contribute any amount in excess of the amount by which the total price at which
the Registrable Securities of such Selling Holder were offered to the public
exceeds the amount of any damages which such Selling Holder 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 0000 Xxx) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the parties under this Section 2.06 shall be in
addition to any liability which any party may otherwise have to any other party.
Section 2.07. Holdback Agreement. If any demand or piggyback registration
pursuant to this Article 2 shall be in connection with an underwritten public
offering of equity Registrable Securities or equity securities to be offered by
AT&T, each Selling Holder agrees not to effect any sale or distribution,
including any sale under Rule 144, of any equity security of AT&T (otherwise
than through the registered public offering then being made), within 30 days
prior to or 90 days (or such lesser period as the lead or managing underwriters
may permit) after the effective date of the registration statement (or the
commencement of the offering to the public of such Registrable Securities in the
event that AT&T consents to Rule 415 Offerings ). For each such registration,
AT&T shall provide each Selling Holder with notice of the applicable dates
during which the foregoing restriction will be in effect.
ARTICLE 3
Miscellaneous
Section 3.01. Amendments, Waivers, etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated except by an
instrument in writing signed by the party against whom enforcement is sought.
Each Holder of Registrable Securities outstanding at the time of any amendment,
waiver, supplement or consent or thereafter shall be bound by any amendment,
waiver, supplement or consent effected pursuant to this Section 3.01, whether or
not any notice, writing or marking indicating such amendment, waiver, supplement
or consent appears on the Registrable Securities or is delivered to such Holder.
The failure of any party to exercise any right, power or remedy provided under
this Agreement or otherwise available in respect hereof at law or in equity, or
to insist upon compliance by any other party with its obligations hereunder, and
any custom or practice of the parties at variance with the terms hereof, shall
not constitute a waiver by such party of its right to exercise any such or other
right, power or remedy or to demand such compliance.
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Section 3.02. Entire Agreement. This Agreement embodies the entire
agreement and understanding between the parties relating to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
subject matter.
Section 3.03. Severability. If any term of this Agreement or the
application thereof to any party or circumstance shall be held invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such term to the other parties or circumstances shall not be affected thereby
and shall be enforced to the greatest extent permitted by applicable law.
Section 3.04. Successors and Assigns. (a) This Agreement shall be binding
upon and shall inure to the benefit of and be enforceable by the parties and
their respective successors and assigns; provided that, except as set forth in
Section 3.04(b) below, neither the rights nor the obligations of any party may
be assigned or delegated without the prior written consent of the other parties,
which consent will not be unreasonably withheld, delayed, conditioned or denied.
If (i) (A) AT&T Shares are changed, converted or exchanged into or for any
shares of stock or other securities, or (B) any other shares or securities are
issued to Holders in respect of such AT&T Shares (or such shares of stock or
other securities into which or for which such shares are so changed, converted
or exchanged) upon any reclassification, share combination, share subdivision,
share dividend, share exchange, merger, consolidation or similar transaction or
event, including, without limitation, in connection with any Restructuring
Transaction or the issuance of any Tracking Stock (any such change or conversion
pursuant to clause (A) or issuance pursuant to clause (B), an "Event"), and (ii)
the securities acquired by Holders as a result of an Event are Registrable
Securities, AT&T shall cause each issuer of such shares or securities to assume
AT&T's obligations hereunder with respect to such shares or securities.
(b) Cox@Home may assign its rights and obligations hereunder to a
transferee of its Registrable Securities that is a Permitted Transferee;
provided that such transferee shall execute a written instrument agreeing to be
bound by the provisions of this Agreement as a Holder.
Section 3.05. Specific Performance. The parties agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached and monetary damages would be inadequate. It is accordingly agreed that
the parties will be entitled to enforce specifically the terms and provisions in
any court of the United States or any state having jurisdiction, this being in
addition to any other remedy to which they are entitled at law or in equity.
Section 3.06. Governing Law. This Agreement and all disputes hereunder
shall be governed by and construed and enforced in accordance with the laws of
the State of New York.
15
Section 3.07. Name, Captions. The name assigned this Agreement and the
section captions used herein are for convenience of reference only and shall not
affect the interpretation or construction hereof.
Section 3.08. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one instrument. Each counterpart may consist of a
number of copies each signed by less than all, but together signed by all, the
parties hereto.
Section 3.09. Confidentiality. Each Holder agrees to keep confidential the fact
that AT&T has exercised its rights under Section 2.01(a)(i), any advice of AT&T
pursuant to Section 2.04(f) and any other information designated as
"confidential" and provided by AT&T in connection with this Agreement.
Section 3.10. Termination. This Agreement shall terminate and be of no further
force and effect upon the earlier of the date upon which all Registrable
Securities held by the Holders (i) have been sold pursuant to a registration
statement hereunder or have otherwise ceased to be "Registrable Securities" as
defined, or (ii) five years from the date hereof; provided that, notwithstanding
this Section 3.10, the provisions of Section 2.06 shall survive the termination
of this Agreement.
Section 3.11. Notice of Transfer. Cox@Home shall notify AT&T as promptly as
practicable upon any Holder ceasing to be a Holder hereunder.
Section 3.12. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including facsimile transmission) and
shall be given,
if to Cox@Home, to:
Cox@Home, Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attention: President
Fax: (000) 000-0000
with a copy to:
Dow, Xxxxxx & Xxxxxxxxx, PLLC
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
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if to AT&T, to:
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Vice President - Law and Secretary
Fax: (000) 000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
Fax: (000) 000-0000
All such notices, requests and other communications shall be
deemed received on the date of receipt by the recipient thereof if received
prior to 5 p.m. in the place of receipt and such day is a business day in the
place of receipt. Otherwise, any such notice, request or communication shall be
deemed not to have been received until the next succeeding business day in the
place of receipt.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first above written.
COX@HOME, INC.
By:/s/Xxxx Xxxxx
-----------------------------------------
Name: Xxxx Xxxxx
Title: Treasurer
AT&T CORP.
By: /s/Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Mergers and Acquisitions Vice President
and Assistant Treasurer
[Signature Page to Registration Rights Agreement]
